The Laboratorium
March 2005

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How Not to Draft a Bill

How Not to Draft a Bill: An Exercise in Life-or-Death Federal Courts Jurisprudence

by James Grimmelmann and Steven Wu

Like many Americans, we thought when Congress passed An Act for the Relief of the Parents of Theresa Marie Schiavo (the Parents Relief Act, or PRA), that the legal battle over Terri Schiavo’s fate would stretch on for many more years in federal court. After all, Congress had opened the doors of the federal courts to “de novo” review of a process that had taken seven years in state courts. Like many Americans, we were surprised when the federal district court issued an order avoiding the difficult issues entirely. But on closer inspection, we realized that the only true surprise would have been if the district court had taken up those issues. Despite Congress’s overstated claims about the PRA, the Act they passed provided only for the limited review in which the district court engaged. Lost in the controversy over the PRA’s legality and wisdom was the more basic fact of its ineffectiveness. Our conclusion: Congress blew it.

(Note: in this post, we have tried to make no claims about the legality, morality, wisdom, or politics of the PRA or any of the parties to the case.)


The Schindlers seemed to have everything going for them: Governor Bush was on their side. So was President Bush. And in the early hours of March 21, 2005, Congress passed (and President Bush signed) the PRA, a legal and political triumph for the Schindlers. The Act was supposed to open the federal courts to their claims, restarting litigation that had been festering for years in the stubbornly resistant Florida courts. Only hours after the Act was signed, the Schindlers had filed suit in United States District Court for the Middle District of Florida, fully expecting (as their supporters did) that federal judge James D. Whittemore would order Terri Schiavo’s feeding tube replaced.

Their suit failed. Spectacularly.

The first thing to note is that the Schindlers did not undertake the difficult task of proving the constitutionality of the PRA. That’s because they were only suing for a temporary restraining order (TRO) to reinsert Terri Schiavo’s feeding tube, and for that purpose, the court would assume that the Act was constitutional. As it turns out, the court also agreed with the Schindlers on three of the four prerequisites for granting a TRO. All that the Schindlers had left to prove was “a substantial likelihood of success on the merits” of their substantive claims, which “requires a showing of only likely or probable, rather than certain, success.” But they couldn’t even do that.

The most remarkable feature of Judge Whittemore’s court order denying the Schindlers’ claims is how utterly unremarkable it is. A reader unfamiliar with the high politics and emotions surrounding this case would find Judge Whittemore’s legal reasoning restrained, reasonable—and completely obvious.

Take Judge Whittemore’s response to the Schindlers’ first claim. The Schindlers alleged that the Florida trial judge “became an advocate for Terri’s death,” and thereby lost all impartiality, by ruling in Michael Schiavo’s favor. But Judge Whittemore points out that the Florida trial judge was required by state law to decide between the two adverse parties. It would be a very strange federal Constitution in which due process was denied whenever judges followed the law. Accordingly, Judge Whittemore concludes, “[N]o federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.”

Things don’t get better with the Schindlers’ second claim, which is the heart of their case. That claim is divided into three parts, all of which allege a violation of Terri Schiavo’s procedural due process rights. The first subclaim criticizes the trial judge for his failure to “personally assess Terri’s level of cognition and her responsiveness.” But this is not Europe: our judges are fact-finders, not detectives. Judge Whittemore gestures helplessly at the Schindlers’ gaping lack of precedent before dismissing this subclaim.

The second subclaim criticizes the trial judge for his failure to appoint a guardian ad litem to represent Terri Schiavo’s interests. Judge Whittemore politely notes that, in fact, at least three guardians ad litem were appointed (perhaps more: see footnote 5), and served honorably. He moves on.

The third subclaim criticizes the trial judge for failing to appoint an additional independent attorney (aside from the Schindlers and their attorney) to represent Terri Schiavo’s legal rights. At last, Judge Whittemore can actually apply the Mathews v. Eldridge balancing test to determine whether there has been a procedural due process violation. The first factor to balance is “the private interest that will be affected by the official action”; Judge Whittemore rightly notes that two private interests are in equipoise here, Terri Schiavo’s life versus “her liberty to exercise her right to refuse medical treatment.” The second factor is “the risk of an erroneous deprivation of such interest through the procedures [actually] used, and probable value, if any, of additional procedural safeguards”; Judge Whittemore points to the extensive state judicial and legislative procedures followed on Terri Schiavo’s behalf, and seems honestly baffled at how much more zealous an additional attorney would have been compared to the implacable Schindlers and their counsel. The third factor is “the Government’s interest”; but Judge Whittemore notes that the extensive statutory scheme enacted by the state should be sufficient to protect its interests.

As a result, the Mathews v. Eldridge balancing test tilts against the Schindlers. This was probably the most colorable element of the Schindlers’ claims, and it was also the element into which Judge Whittemore put the most care and detailed legal analysis. If the Schindlers were most likely to prevail anywhere, it was here, but the balance isn’t even close. The Schindlers and their allies have received more court time — and more detailed, reasoned opinions — than most death penalty prisoners receive in state or federal courts. They have had more judicial process than most of us can ever hope for. It is hard to argue with a straight face that every litigated case concerning the wishes of a patient in a permanent vegetative state should receive more process than the Schindlers have had; there is not nearly enough process to go around as it is.

Judge Whittemore then dismisses the Schindlers’ third claim with an on-point quotation from that final arbiter of the meaning of the Equal Protection Clause: the Supreme Court. Indeed, Cruzan is the case that defines American law in right-to-die and withdrawal-of-life-support cases.

He moves swiftly to the Schindlers’ final two claims. The fourth claim is brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The fifth claim is brought under the First Amendment’s Free Exercise Clause. The only thing to know about these two provisions is that by their express terms they apply only to governments, and not to private individuals like Michael Schiavo. Plaintiffs always allege that judicial enforcement of civil judgments constitutes state action. They almost always lose. The end.

Evaluated solely as a piece of legal reasoning, Judge Whittemore’s order is hardly a masterpiece. But that’s only because the legal issues he dealt with were so easy. Or, to put it another way, that’s only because the legal claims he was facing were so bad.

But is this how it was supposed to end? How did it come to pass that Judge Whittemore could make a by-the-book ruling on easy-to-resolve claims? Wasn’t this case supposed to be hard? Why in the world was Judge Whittemore only hearing not-very-strong claims based on procedural due process (under the Fourteenth Amendment), RLUIPA, and the First Amendment? What about the dispute over whether Terri in fact expressed a desire to die? What about the numerous videos showing her seemingly active and well? In other words, what happened to all of the arguments that have been dominating the news in the last few weeks? Why did they just disappear?


If Judge Whittemore’s ruling was correct, the next logical question is whether the Schindlers could have prevailed (even if only in their application for a TRO) with better lawyering: perhaps they have a legitimate claim but they failed to argue it coherently or failed to mention it at all. This appears not to be the case: the Schindlers raised the obvious federal claims at their disposal, and the PRA didn’t provide them with the option of raising state claims.

In the past seven years, the Schindlers have held up their end of the litigation with great procedural tenacity. They filed (and occasionally won) appeals, motions for post-judgment relief, and collateral attacks in other Florida courts. Before the PRA, the case had generated six appellate opinions in Florida courts and two petitions for certiorari to the United States Supreme Court. One would not expect attorneys with such a track record to miss plausible alternative causes of action.

Nor did they. Although the PRA authorized them to sue for the “alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United State,” this broad language implicates few specific rights. The procedural due process claim is so squarely on point that it leaves room for few other constitutional claims. Such a claim is a direct attack on the quality of the state procedures involved in the original decision: if that procedure is upheld under the Mathews balancing test, then there is nothing more to be said about those procedures as a constitutional matter. One might imagine a substantive due process claim that a fundamental right of Terri’s had been violated, but such a claim would almost certainly fail in today’s legal climate. (After all, if a young boy has no substantive due process right against being beaten to severe retardation by a father known by the state to be abusive, see DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189 (1989), it’s hard to argue that Terri Schiavo has a substantive due process right against the decisions reached by a long series of conscientious state jurists.)

More interesting is the matter of state causes of action. Many commentators — including some in Congress — have said that they thought the requirement of “de novo” determinations would mean that the federal court should summon witnesses and make a fresh evaluation of who should be Terri’s guardian, whether she is in a permanent vegetative state, and of what her wishes would be. These questions originally entered the case as matters of Florida law, which is how they were litigated in the Florida courts. For them to enter the case now, the Schindlers would have had to point to a reason that the federal courts should apply these Florida laws. That they did not do, and for good reason.

There are two routes by which state law typically enters federal court. First, some federal law may borrow from state law. For example, the Federal Torts Claims Act (FTCA), which governs many suits for damages against the federal government, borrows extensively from state tort law. If you sue the government under the FTCA, the burdens of proof and defenses that will apply to your case will be borrowed from the law of the appropriate state.

But here, there is no statute making reference to state law to be borrowed. If there were, the Schindlers could have gone into federal court already to assert those rights, under the “federal question” jurisdiction of 28 U.S.C. s. 1331, which gives jurisdiction over all “civil actions arising under the Constitution, laws, or treaties of the United States.” The reason that the Schindlers needed the PRA in the first place was they could point to no federal law creating the necessary “civil action” for them to get into federal court. And as for the PRA itself, it quite explicitly does not create substantive rights over and above conferring jurisdiction. In Section 5, it states: “Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.”

So borrowing was out. The other way in which state law typically shows up in federal court is when some federal jurisdictional statute picks up an entire state cause of action and allow it to be brought in federal court. The most famous such statute is the “diversity” jurisdiction of 28 U.S.C. s. 1332, which opens the federal courts to (state-law) lawsuits between citizens of different states. [The difference between this kind of state-law incorporation and borrowing is that this kind takes entire state-law causes of action, while borrowing depends on a federal cause of action and uses state law only to fill in the gaps.] Diversity jurisdiction itself was unavailable here, among other reasons, because everyone involved in the case was Floridian.

The obvious next possibility, then, would be that the PRA might have opened the door to state-law causes of action in the same way that 1332 does. The Schindlers could then have used almost the same complaint they would have used in Florida court in 1998, pointed to the de novo requirement, and asked the federal court to act like a Florida court in resolving the matter. This whole hypothetical would have led out into Erie territory, with the federal court mixing together Florida’s substantive law of guardianship, the Federal Rules of Civil Procedure, some elements of Florida guardianship procedure, and its own factfinding.

The PRA, however, did not take this route; it mentioned only rights “under the Constitution or laws of the United States” in conferring jurisdiction. Under the settled interpretation of 1331 and of Article III of the Constitution, which use the language “arising under the Constitution [or] laws … of the United States,” that phrase would be considered not to extend to causes of action created by state law. (One might ask whether “under” in the PRA means the same thing as “arising under” in 1331. This is not an obvious question, given that “arising under” has been interpreted to mean different things in Article III and in 1331. But the difference in the phrasings is not great, and there is a good case to be made that, if anything, the distinction cuts in favor of construing the PRA’s grant even more narrowly than 1331’s.) The PRA, on its face, did not invite the Schindlers to point to it as a jurisdictional grant over the hotly contested Florida causes of action, nor did they treat it as such.

There was one more possible avenue for those causes of action, and its exclusion from the PRA is even more mysterious. That avenue is the “supplemental jurisdiction” statute, 28 U.S.C. s. 1367. In a nutshell, it provides that once you’re in federal court legitimately under some other jurisdictional statute, you can raise all your related state-law causes of action, too. Thus, in the alternate universe in which the PRA was drafted differently, the Schindlers’ complaint would have listed their various Due Process and other federal claims, and then pointed to 1367 and run down their Florida complaint to demand procedures to determine Terri’s guardianship, wishes, and medical condition.

In this universe, however, the PRA doesn’t quite enable such a suit. The key language is from the “Procedure” section:

In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

(emphasis added). The italicized language — “within the scope of this Act” — is the critical passage. By the terms of the jurisdictional grant, the PRA extends only to “a suit or claim … under the Constitution or laws of the United States.” And, as discussed above, that’s a jurisdictional grant only over federal causes of action, not state ones. In other words, the PRA only gives de novo review to federal claims, not to state ones. Indeed, even if the Schindlers had re-raised their state claims under 1367 on Monday, those claims would have been immediately dismissed as res judicata. Once you’ve litigated a claim in one court and lost, other courts will refuse to let you litigate those claims in front of them.

The upshot of all of this is that the Schindlers couldn’t have re-raised their state law claims in federal court under the PRA. That means no federal court review of guardianship, Terri’s medical condition, etc. — in other words, no federal court review of the very issues that many Congresspeople thought this Act was meant to address. The Schindlers’ lawyer clearly understood this: hence the lack of state law claims in their brief before the federal district court.

But all this makes the “de novo” provision of the PRA rather puzzling. Paradoxically, the federal claims the Schindlers raised on Monday hadn’t already been litigated in state court, while the state claims had. In other words, the Schindlers didn’t need the “de novo” provision to file their(federal law) claims. They only needed it to re-file their state law claims. Except, of course, that the PRA doesn’t allow them to file state law claims at all. In a bizarre and perhaps unintentional twist, the much-vaunted “de novo” provision is a legal nullity: it doesn’t seem to do very much of anything at all.

One may debate whether Congress could constitutionally have gone further. One may debate whether Congress intended to go further. But under the PRA as Congress actually passed it, the Schindlers did all that they could, and the District Court properly denied their requests. The second most surprising thing about the PRA is that it didn’t work — but the first most surprising thing about the PRA is that no one should have expected it to work.


Returning to the TRO standards, Congress didn’t need to do much to vacate the Florida court’s order to remove Terri Schiavo’s feeding tube. All it had to do was put before the federal district court a difficult legal claim — even the constitutionality of the PRA itself. The only reason the district court was able to act so quickly — and contrary to the professed wishes of Congress — was that the claims it was actually faced with were so obviously weak. In other ways, the PRA was very skillfully drafted: It anticipated abstention, exhaustion of state remedies, and the federal court’s own power to provide remedies. Clearly smart people knowledgeable about the federal courts wrote the PRA.

Are we missing something? We’re just a bunch of law students, arrogant after a semester of Federal Courts, but a United States district judge and the Schindlers’ energetic and resourceful lawyers seem to agree with us that the PRA doesn’t allow relitigation of this case’s most controversial issues. Why did Congress make such a big deal about an Act that wasn’t going to work? What were the drafters’ reasons for not trying something more ambitious and more in line with their stated intent? We have some guesses, which we hope to explore in a follow-up post.

[Of course, the Eleventh Circuit might overturn the district court anyway. Even if they do, (a) they’re wrong, and (b) our point stands: none of the federal claims will lead to anything more than a remand to the Florida courts to provide even more procedure to Terri Schiavo.]

A Few More Sovereignties

Janice Thomson’s Mercenaries, Pirates, and Sovereigns (ISBN: 0691025711) is a wonderful little book. The story it tells is simple, but rich in implication.

Thomson’s topic is the state’s monopoly on violence. Or rather, her topic is the surprising recency of that monopoly. Until about 1900, she demonstrates, the state was by no means the only legitimate source of international force. In the six previous centuries, mercenaries, pirates, quasi-independent merchant companies, filibusters, and other violent actors were accepted parts of the international order. Only gradually did nations take serious steps to displace these other sources of violence.

It’s a simple hypothesis, and she argues it convincingly. At first, states enjoyed the benefits of being able to use “nonstate” violence. To take one example, commissioning privateers required no upfront government investment the way that raising an army might. But these alternative systems created unintended consequences. To continue the example, privateers tended to turn pirate after the end of formal hostilities. As a result, states took action first to give up their capacity to draw on these nonstate sources of violence (e.g., no longer commissioning privateers) and then to get rid of them altogether (e.g. outlawing piracy altogether).

Here are a few of the fascinating boxes Thomson opens:

  • Piracy is ancient, but “piracy” is a relatively modern construction. Only after the elimination of privateering does it become possible to truly define pirates as the enemies of all nations. As long as nations condoned “good” piracy on the Francis Drake model, the modern consensus that pirates are outside the law was unavailable. These facts are an embarassment for those who would argue that terrorists deserve no law on the basis of the “timeless” and “universal” norm against piracy.

  • “Sovereignty” is a strange creature, and only gets stranger the longer you stare at it. The old merchant companies (e.g. the East India Company) don’t fit comfortably in any modern conceptual boxes. They had armies and navies, conducted international relations, and had full governmental powers over “their” people and turf. For a time, the Hudson’s Bay Company was the fourth-largest territorial sovereign on the planet. At times, these companies even came to blows with the nations that chartered them. In light of such strange hybrids, can we please strike the phrase “essential attributes of sovereignty” from the legal vocabulary?

  • Violence used to be a market commodity: you could both buy and sell armies on the international system. No longer. It is now considered illegitimate to sell military services for money in a naked transaction; such deals now have to be disguised, when they take place at all. Not all global trends are towards markets.

And finally, one wonderful quotation from the book’s conclusion (page 148):

This evidence suggests what I take to be the key difference between the subject and the citizen: the rights and duties of the citizen are institutionalized. A subject could be authorized to privateer, lose that authority a year later, and be defined as a pirate, and be granted amnesty and a new privateering commission six months later. The citizen’s rights in the national state system are more precisely defined, permanent, universal, and not (as) subject to arbitrary changes by state rulers.

Worth reading for the stories about the filibusters (def. 2) alone …

Justice Reviewed

I’m about thirty pages into Robert Cover’s Justice Accused and I have two observations. First, Cover had a great talent for pulling out the just the right quotation from his sources. He quotes Montesquieu, “sarcastically derid[ing] arguments justifying Negro slavery on the basis of racial characteristics:

It is impossible for us to suppose these creatures to be men, because allowing them to be men, a suspicion would follow that we ourselves are not Christian.

And here is James Otis on the slave trade:

Nothing better can be said in favor of a trade that is the most shocking violation of the law of nature, has a direct tendency to diminish the idea of the inestimable value of liberty, and makes every dealer in it a tyrant from the director of an African company to the petty chapman in needles and pins on the unhappy coast.

Richard Hofstadter, two centuries later, paraphrased Otis’s line as, “The slave trade … corrupted everyone connected with it …” My mother, the historian, however, remembered the Hofstadter as “The slave trade corrupted everything it touched,” a version I prefer.

Finally, here is Cover quoting one of Bentham’s many quotable lines ridiculing the concept of natural law:

Unless natural law is to be construed as simply an unclear and inelegant way of reformulating principles of utility, Bentham argued,

I see no remedy but that the natural tendency of such doctrine is to impel a man, by the force of conscience, to rise up in arms against any law whatever that he happens not to like.

On the other hand, Cover’s punctuation baffles me. He sticks commas in all sorts of odd places, and then omits them from places you’d expect to see one. Was it at one point the height of punctilious punctuation to separate one’s subjects from one’s verbs with a dramatic comma?

Field Test

Please help me road-test an idea. Which of the following do you find most persuasive?

Copyright is about balance between important rights. Creators’ exclusive rights to control the use of their works must be balanced against the needs of the public at large. Today, that balance has tipped too far towards creators, and important free speech rights are being suppressed in the name of copyright.

Copyright is about protecting people who have created something from having their work appropriated by people who copy without adding anything original. Today, copyright law often gets this idea backwards and lets people who’ve done nothing special go to court to suppress the work of people who are creating something.

Copyright is about economic efficiency. We give creators a monopoly over their works in order to give them an incentive to create, but because monopolies are inefficient, we also place limits on creators’ rights. Today, the copyright monopoly has stretched beyond its proper limits, resulting in less overall benefit to society.

Copyright is about rewarding deserving creators. But because all authors build on the creativity of past authors, copyright is limited. Today, copyright ties up a far greater fraction of past works than ever before, depriving creators of their necessary raw materials and preventing them from being as creative as they might be.

Shoes of Shame

I bought new shoes.

Yes, they’re from a company with obnoxious advertising.

Yes, they’re the same shoes my girlfriend wears.

Yes, they’re named after my college.

But I swear that I bought them because they’re comfortable, sturdy, and respectable-looking—not an easy trifecta to hit.

Questionable Urgency

I got an “URGENT NOTICE” postcard from my high school today telling me that it’s desperately important I call them to update my address information with them.

Given that they were able to get the postcard to me, I fail to see the urgency.

Where is Hunter S. When You Need Him?

The Times this weekend had a fascinating story about the eleven years and thirteen million dollars that have been thrown at making another Guns N’ Roses album, so far to no avail. The article itself is unfortunately somewhat dry, but some of the events it recounts are priceless. Consider:

But Mr. Rose’s renewed energies were not being directed toward the finish line. He had the crew send him CD’s almost daily, sometimes with 16 or more takes of a musician performing his part of a single song. He accompanied Buckethead on a jaunt to Disneyland when the guitarist was drifting toward quitting, several people involved recalled; then Buckethead announced he would be more comfortable working inside a chicken coop, so one was built for him in the studio, from wood planks and chicken wire.


Round two never came. The band went on a successful tour, but in the hours after their triumphant Madison Square Garden appearance, Mr. Rose was reportedly refused entry to the Manhattan nightclub Spa because he was wearing fur, which the club does not allow. That killed the mood. He didn’t show up for the band’s next performance, and the promoter canceled the rest of the tour.

The whole thing has an Apocalypse Now quality. Innocent young producers and record execs keep on going upriver, into the recording studio where W. Axl Rose has barricaded himself behind a wall of 60 guitars only to be overwhelmed by the boredom and the madness. Of course, none of them is deterred by the sight of the severed heads of their predecessors, and of course, they all come bearing the latest checks from the record company to keep on paying the $244,000 monthly price tag. In the hands of a better journalist, this story could have been dynamite.

Astonishing Coincidences Dept.

I just reached into a box of Jujubes and and pulled out ten red ones.

The odds against pulling all one color in a random draw of ten are pretty steep: 1,953,124 to 1, to be precise.

I was impressed, but I ate them anyway.

Words Fail

The Supreme Court ruled yesterday that it’s unconstitutional to execute minors (PDF).

I don’t think that needing some comfort food is among the set of appropriate reactions to the news.