In the first post, we examined the two paragraphs below and rewrote them.
“For much of the nineteenth century, victims of federal government misconduct pursued common law tort claims against responsible federal employees. But the framework for government tort litigation changed dramatically in the twentieth century. Congress adopted the Federal Tort Claims Act (FTCA), imposing vicarious liability on the federal government for some (but not all) torts committed by its officers and employees within the scope of their employment. Notably, the FTCA omitted many intentional tort claims from its coverage, leaving those matters to resolution under state common law. Then, in 1971, the Supreme Court recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics a federal judge-made right to seek damages for federal officials’ violations of the Fourth Amendment. Legislation adopted in 1974 extended the FTCA’s vicarious liability regime to the intentional torts of law enforcement officers. Victims of tortious misconduct can, at least in theory, sue the government under the FTCA for law enforcement torts and wrongdoing officers under the Bivens doctrine.
While available in theory, these remedies often go missing in practice, as they did in Hernández v. Mesa, the Supreme Court’s cross-border shooting case from 2020. The latest decision in the Bivens line, Egbert v. Boule, confirms the Court’s reluctance to expand the rights of individuals to pursue constitutional tort claims against federal officials. The Egbert Court reiterated that its more recent decisions “instruct that, absent utmost deference to Congress’ preeminent authority in this area, the courts ‘arrogat[e] legislative power.’” Under this vision of the separation of powers, Congress (rather than the federal courts) must take the lead in authorizing individuals to enforce the federal Constitution, especially in suits against officers of the federal government. Bivens may survive in the context of federal policing and imprisonment but has no growing power. For example, the Egbert Court rejected (without dissent) a new claim for First Amendment retaliation.”
I rewrote those two paragraphs in an earlier blog post. You can find the link here. It is basically about how some victims whose are physically abused by federal government employees can sue neither the employee nor the government itself. According to the article, this is because federal courts are misreading a federal statute.
Structural Problems: Outline a Problem – Consequences of Not Solving It.
Even if you do not find legal concepts interesting, it is worth your time to try reading to see if you can understand. If you cannot, that is not your fault: the paragraph, both as an introduction and in and of itself, has serious structural problems. Amidst the asphyxiating, vine-like sentences, the author nowhere explains the consequences of courts misinterpreting the statute. The courts have interpreted a statute incorrectly, and in a numerous cases in the past, people who were hurt by the government and have sued have not been able to get help.
The author does not tell us what is at stake if the courts continue to misread the statute in the future. Clearly, the case from the past will control similar facts in the future. But beyond that, are there barely discernible eventualities that the author sees and that we should worry about? The system of civil rights laws in remarkably vast. Against that vastness, how significant is this misreading of the statute?
Note that the author does not deal with this. He assumes that we will pay attention. But why should we, if the gravity of the problem for the future has not been made clear?
Compare this with writings about laws passed under the US war on terrorism. It was understood that that war would continue expanding. So, an analysis of the civil rights impacts of those laws occurred against a backdrop of urgency. What is the urgency of reviewing how the courts assess cases by the victims of governmental abuse?
Further, what solution does the author propose? That depends on whether he is presenting this as a practical or conceptual problem. If he wants to approach this as a practical problem, what advice does he have for civil rights lawyers preparing a case or to judges? He does not say, although he would have benefitted from being clearer on this point.
He may be presenting this as a purely conceptual problem and presenting this for academics to consider and discuss. But even then, it would have been nice to know right in the introduction how widespread this misinterpretation of the statute is. Further, it would be nice to know if his argument could markedly change our understanding of civil rights law.
The article that I have extracted from runs 67 pages and 453 footnotes. It was prepared for publication in the Harvard Law Review, arguably the most prestigious law review in the country. Yet, these basic questions remain unanswered.
Without an answer, the writing that groans under all this labor has a strange quality, but weightless and too weighty at once. It is as if the author were person who wants to shout out an important message at the top of his lungs, and those pages and footnotes represents a filling of the lungs to the bursting. But then, the lungs scream into a silent void, where no one hears. Who listens?
The problem transcends bad writing. It is a failure to reflect. Unless you can state early on the nature of the problem and the urgency for solving it, your reader will lose interest, regardless of how well you write. Again, there are interesting ideas in the author’s article. But how often will it be cited and how many discussions will it provoke? The author and publication may enjoy power, pay, and prestige – but without a proper introduction clearly stating the problem, no one will pay heed.
This goes beyond legal writing. In any branch of academia or the business world, you must be prepared to state the problem and the bad consequences of leaving it unsolved. You must be able to suggest a solution, even if that solution is only to correct the way people think.
The Consequences of Bad Legal Writing.
A final point. The bureaucratic style in the article displays an indifference to the non-academic reader. Perhaps that would be somewhat understandable in more recondite areas of study, like high level linguistics of STEM disciplines. But this is civil rights law. Unrepresented people, often victims of government abuse, look to legal materials for guidance. This article, along with impenetrable statutes and poorly reasoned case law, keeps the courthouse doors shut to these people as effectively as if they were chained shut.
It is not hard to imagine a scenario where a person hurt by a cop and unable to find a lawyer goes to an article like this for guidance. Would he find guidance? Or would he dispiritedly conclude that he lacks the knowledge to unchain the doors. In the end, the writers of articles like this should decide if they are engaged in a battle of arcana with other academics, or if they really want to help actual people who might find the topic useful. The editors of the Harvard Law Review might have thought of that.
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