December 17, 2010

An Additional Post-Mortem on the Ninth Circuit Oral Argument in the Proposition 8 Case

Cross-posted from FindLaw.com

By Vikram Amar

Analysts of the same-sex marriage legal saga are trying to read the tea leaves from the U.S. Court of Appeals for the Ninth Circuit's oral argument held last Monday. The argument took up the federal constitutional challenge to California's Proposition 8, a state constitutional initiative limiting marriage to a union between a man and a woman.

My FindLaw colleague Professor Michael Dorf offered some insightful commentary on the oral argument on this site earlier this week; Professor Dorf's column (along with many of my own, including the one posted here) provides much of the essential background that any reader interested in the Proposition 8 litigation should consult.

In my column today, I offer additional observations on the hearing. Some of my suggestions build on Professor Dorf's thoughts, and some of my reactions diverge from his take.

Issue One: Standing and Certification

As followers of the Proposition 8 case know, there is a serious question about whether the official sponsors of the initiative have standing in federal court to appeal the ruling by U.S. District Court Judge Vaughn Walker that Proposition 8 violates the Fourteenth Amendment. After all, Proposition 8's sponsors were not elected by the people of California to speak on their behalf, the way the Governor and Attorney General are.

On this standing question, the Ninth Circuit judges floated an interesting possibility at oral argument: The federal courts could "certify" a question to the California Supreme Court to get its view about whether California state law authorizes sponsors to defend initiatives when elected officials (i.e., the Governor and the Attorney General) do not. (Certification is a device by which state courts give answers to federal judges on the meaning of unclear state law when state-law interpretation is central to a question the federal court is being asked to decide.)

In theory, the certification device helps federal courts avoid misunderstanding, and thus misapplying, state law. In practice, however, certification often doesn't work particularly well. For starters, state courts frequently don't answer the certified questions clearly. There are many reasons why state law might not be so obviously clear that federal courts can figure it out on their own; one such reason might be that state courts (for political or other reasons) don't want to provide clear answers to some state-law questions. And if the ambiguity in state law is semi-intentional, it is not uncommon for state courts to passively resist providing the guidance that certification seeks.

Moreover, there are other reasons why, in the Proposition 8 case in particular, certification -- while interesting -- may not ultimately be a productive route. Most importantly, it is not clear that any answer the California Supreme Court might give about state-law authorization for initiative sponsors to defend would address the key question the Ninth Circuit must resolve: whether Article III of the federal Constitution, which limits federal courts to "cases" or "controversies" is satisfied if the only parties on one side of a litigation are an initiative's sponsors.

It is true that the United States Supreme Court has hinted that a state law that "appoint[s] initiative sponsors as agents of the people of the state" might suffice to confer standing in federal court. But even if the California Supreme Court says that California law in practice permits sponsors to defend in state court when elected officials won't do so, such a practice, especially when it is not widely known, might not constitute the kind of "appointment" that is necessary to qualify in federal court and to overcome the fact that initiative sponsors aren't generally elected by the people. (For more background on the virtues of formal election or appointment of agents purporting to represent the people, readers will find my earlier column posted here helpful.)

The Ninth Circuit Judges (and Professor Dorf) did seem troubled by the fact that, if sponsor standing in federal court is not permitted, an initiative adopted by the people might die simply because elected officials decide not to defend it. As Professor Dorf put the point, "[i]ndeed, the whole point of the ballot-initiative process is to permit the People to adopt laws and state constitutional provisions that their elected officials do not favor." But as my colleague Alan Brownstein and I have pointed out, there is a way of addressing that concern and still accommodating the discomfort that many rightly feel about allowing the self-appointed sponsors of an initiative to speak on behalf of an electorate that might not agree with them on all particulars. Our middle-ground proposal was to require a plain statement -- that is, one either made explicit in state law or placed in the text of particular initiatives -- that deputizes sponsors to defend when elected officials don't. That way, sponsor standing can exist to make the initiative device meaningful, but the people who adopt an initiative at least can know for sure who might be speaking on their behalf in federal court, and can then take that into account when deciding whether to enact the measure.

Finally, I should note one underappreciated possible virtue of the certification route in the Proposition 8 matter -- certification will take time. Many (myself included) think that the Proposition 8 challengers would have been wiser to wait a bit longer before bringing their case, so that the issue of same-sex marriage could percolate in other states for more time before the U.S. Supreme Court takes it up. Certification -- because it can consume well over a year -- may slow the Proposition 8 litigation down in a way that might be beneficial.

Issue Two -- Remedy: What Should Be Done If No Party Defending Proposition 8 Has Standing?

Professor Dorf astutely observed that "perhaps the most surprising aspect of the [standing] portion of the oral argument was the nearly complete inattention to a key remedial question: If the court finds [that the sponsors and all others who are trying to intervene lack standing] what happens next?"

Although the parties disagree on what should happen in this instance, it remains hard for me to see how the Ninth Circuit could avoid vacating (that is, in effect, erasing) the entire opinion issued by District Judge Walker. If there is no Article III case or controversy at the Ninth Circuit today, then how could there have been one at trial? And how could any opinion resulting from a trial that was not a case or controversy -- as the U.S. Constitution, in Article III, requires for federal-court jurisdiction-- possibly stand?

To be clear, vacating Judge Walker's opinion would not leave the Proposition 8 challengers without recourse; they would simply win a default judgment giving the named plaintiffs only the narrowest form of relief they seek -- their particular marriage licenses. But any judicial order that is broader than that would be hard to square with the very essence of any determination that the sponsors lack constitutional standing.

And the U.S. Supreme Court has suggested in a variety of settings that courts must vacate judgments where there was no case or controversy at the time of adjudication. Perhaps most directly relevant is Karcher v. May, a key case in the standing battle. There the U.S. Supreme Court held that individual state legislators, representing themselves and not their legislative bodies, lacked Article III standing at the Supreme Court to defend a statute that was not being defended by the state's elected executive officials.

These legislators had been the leaders in their respective legislative chambers before the last election, and in their capacity as legislative leaders they had represented each of the legislative houses in defending the statute in the litigation in the lower federal courts. After the U.S. Supreme Court determined that these individual legislators -- who no longer represented their legislative bodies -- lacked standing, it confronted the question of whether it had to vacate the rulings in the lower courts. The Court concluded that it did not need to erase the lower-court rulings, but only because it found the standing of the legislators on behalf of the legislature itself in the lower courts to be valid: "Since the New Jersey Legislature had authority under state law to represent the State's interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant."

The implication of this language to me seems to be that if there had been no proper standing in the lower courts, then vacating the lower-court rulings would indeed have been the required course.

Issue Three: The Relevance of Romer

One of the suggestions of the Proposition 8 challengers has been that the repeal of an existing right under a state constitution is more troubling than the failure ever to recognize the right in the first place, and that since Proposition 8 is a repeal, it is particularly problematic.

But as I pointed out in an earlier column (and as Professor Dorf agrees), this reasoning seems foreclosed by the U.S. Supreme Court case of Crawford v. Los Angeles Board of Education, where the Court made clear that a state can experiment in the direction of creating rights without having to worry about whether it is forever locked into recognizing those rights.

But Professor Dorf finds a different U.S. Supreme Court case -- Romer v. Evans -- to be of more help to the Proposition 8 challengers. In that 1996 ruling, the Supreme Court struck down a Colorado ballot measure, Amendment 2, that withdrew the right of gays and bisexuals to assert claims of discrimination based on their sexual orientation. Professor Dorf views that case as being driven by the Court's finding of impermissible motive on the part of the Colorado voters, and argues that an impermissible motive might also plague Proposition 8 (especially if Judge Walker's trial findings are to be credited.)

I view Romer as somewhat more complicated, and as not necessarily speaking to the issue of gay marriage. Put to one side the fact that Amendment 2 targeted people because of their gay or bisexual "orientation." (The orientation/conduct line with respect to sexuality might be a hard one to draw, and it is tough to decide whether marriage definitions are about orientation or conduct.) I see two features of Amendment 2 -- breadth and unusualness -- that were important to Romer's result but that are not present in Proposition 8.

First, let's consider breadth: Amendment 2 was breathtaking in its scope, preventing gays and bisexuals from invoking the law's protection across the entire range of the public and private spheres. Public and private education, employment, housing, etc., were all covered by the Colorado initiative. By contrast, Proposition 8 speaks to marriage and marriage only. Marriage is, of course, a hugely important arena, but it is still only one arena. And Justice Kennedy, writing for the Court in Romer, repeatedly commented on the problematic "sweeping and comprehensive" character and "reach" of the Colorado initiative.

Second, and perhaps more important, there is the issue of unusualness: Amendment 2 was one of a kind. As far as I know, no state had before, or has since, tried to pass a law seriously resembling it. By contrast, Proposition 8 -- no matter how unjust it seems to me and other opponents -- is in the national mainstream; more than 40 states refuse to confer the marriage label on same-sex unions.

I am not arguing, of course, that if enough people are violating the Constitution, the violations should be overlooked. Instead, I am observing that the U.S. Supreme Court, especially in the area of fundamental liberties of autonomy and intimacy, has historically felt more comfortable proclaiming a national right when there is clearly a national trend in the direction of right being asserted.

For example, by the time the Court recognized a federal right to interracial marriage in Loving v. Virginia in 1967, Virginia was, as the Court itself noted in its opinion, one of only 16 states that prohibited and punished marriage between the races. And over the previous decade-and-a-half leading up to the case, more than a dozen states had repealed their bans on interracial marriage. Even in the context of gay rights, the law struck down in Romer was, as I've just mentioned, very unusual, if not unique. And the Texas law banning gay sex that was struck down in Lawrence v. Texas -- the other blockbuster Supreme Court case involving gay rights -- was also very much of an outlier; Justice Kennedy's opinion in that case pointed out that there were only four states that had and enforced such laws.

In saying all of the above, I do not mean to contend that the Supreme Court couldn't use Romer to invalidate Proposition 8. Rather, I am suggesting that the Justices who voted to strike Amendment 2 could easily see the two situations as distinguishable, at least right now.

December 3, 2010

Now That the Proposition 8 Appellate Judges Are Known, What Is The Likely Outcome?

Cross-posted from FindLaw.

Now that we know the identity of the three judges of the U.S. Court of Appeals for the Ninth Circuit who will hear the appeal in the case challenging Proposition 8 (California's ban on same-sex marriage), observers are trying to handicap the outcome. I too am guilty on occasion of getting caught up in the horserace aspect of litigation prediction, but in this column I explain why complex lawsuits, like racing forms, aren't for the faint of heart.

The Composition of the Ninth Circuit Panel

Guessing precisely how California's same-sex marriage legal saga will end up has been dicey business from the start; the litigations have already taken several dramatic and unexpected turns over the past five or six years. And the ideologically diverse composition of the three-judge panel in the Proposition 8 federal appeal doesn't make prognostication any the easier.

One member of the panel, Stephen Reinhardt, is by many accounts the most prominent old-school left-leaning judge on the federal bench -- a liberal lion who has served as an active member of the Ninth Circuit for over 30 years since Jimmy Carter appointed him at the end of Carter's presidency.

Another member, N. Randy Smith, was an experienced Idaho state court jurist before George Bush placed him on the federal circuit a few years ago. He has a less well-developed federal court of appeals track record, but his general background and prior decisions would seem to indicate he is instinctively quite conservative in his legal philosophy.

And the third member, Michael Daly Hawkins from Arizona, is a Clinton appointee who is considered, as are many Clinton appointees to the federal appellate bench, somewhat to the left of the national center, but generally moderate in philosophical instincts.

The Two Big Legal Questions Before the Panel of Judges

A panel comprised of a liberal, a conservative and a moderate would be hard enough to read in any big-ticket case. In the Proposition 8 dispute, things are far more complicated still.

One source of the complication is the fact that there are two substantial, distinct legal questions before the panel. The first is whether the sponsors of Proposition 8 have standing to defend the measure; if not (and if Imperial County also lacks standing), then, as I explained in my most recent column, Proposition 8 will likely die a quiet "default judgment" death in California (because neither Governor-elect Jerry Brown nor Attorney General-elect Kamala Harris will defend the measure.) But if Proposition 8 were to die this kind of quiet death, there would be no immediate legal implications beyond California's borders.

Only if the Ninth Circuit finds the sponsors have standing will it take up the merits of the constitutional challenge to Proposition 8 and decide the second question: whether there is a federal constitutional right to same-sex marriage.

On the latter question, perhaps it is reasonable to believe that "liberals" are more inclined to embrace a federal constitutional right than are "conservatives" (with "moderates" somewhere in between.) But on the standing question -- which concerns a somewhat technical doctrine about which I've written extensively here on FindLaw -- traditional ideological labels are less useful as predictive measures. This is partly because standing rules are often manipulated by judges -- both liberal and conservative -- for prudential reasons (including to pick the right time certain disputes should be resolved by the federal judiciary). And some liberals might prefer to see Proposition 8 die a quiet death than see it slain by the Ninth Circuit in a more prominent ruling on the merits, since the latter scenario is more likely to draw the generally conservative U.S. Supreme Court into the fray.

A Look at Judge Reinhardt's Likely Stance Alone Illustrates Why the Panel Holding Is Hard to Predict

But we don't even need to consider the overall makeup of the Ninth Circuit panel to see the complexity of this case and the difficulty of prediction. A look at just one of the panel members, Stephen Reinhardt, alone suffices to illustrate the intricacy of the litigation and its possible resolutions.

On the merits, Judge Reinhardt would probably agree with the challengers to Proposition 8 that the ban on same-sex marriage violates the federal Constitution. Indeed, although this fact has not yet garnered wide attention, he (along with Ninth Circuit Chief Judge Alex Kozinski, in a separate writing) has already expressed his opinion that the federal government's discriminatory treatment of same-sex couples, with respect to health-care benefits for spouses of employees in the federal judiciary, violates the Constitution.

While the Proposition 8 case raises a slightly different legal question than the health-care spousal benefits dispute raised, Judge Reinhardt is on record saying that he thinks discrimination against gays and lesbians by government is subject to so-called "heightened scrutiny," under which the government must produce a strong reason for the differential treatment. And most analysts, myself included, do not think bans on same-sex marriage can survive an honest application of heightened scrutiny.

But on the standing question, Judge Reinhardt has a personal track record that is harder to decipher. In particular, he wrote a Ninth Circuit opinion in the 1990s involving a challenge to an Arizona English-language-only initiative. That Ninth Circuit opinion conferred federal court standing on the initiative's sponsors. But it was that very opinion that was roundly criticized by a unanimous Supreme Court in language that has cast doubt on Proposition 8 sponsors' standing and that has caused the Ninth Circuit to devote so much energy to the standing question. (For much more on the standing issue, readers might want to consult this prior column and the earlier column to which it links.) Will Judge Reinhardt stick to his standing guns and hold that Proposition 8's sponsors do have standing? Or will he feel cowed by the unanimous, albeit non-binding, language from the Supreme Court in the Arizona case in 1997?

To be sure, many people describe Judge Reinhardt as somewhat defiant, but he also is the author of a well-known dissent in 1988, in Watkins v. U.S. Army, in which he said he felt constrained to follow a Supreme Court ruling even though he found it terribly wrong-headed. And it is interesting to note the context of that famous 1988 Reinhardt opinion: gay and lesbian equality rights. The case involved the Army's ban on gays and lesbians, and Judge Reinhardt dissented from a ruling by two other Ninth Circuit Judges (Judges Norris and Canby) striking that policy down. (Needless to say, the ruling by these two judges itself got undone; that is why we are still dealing with the "Don't Ask, Don't Tell" policy even today, although perhaps that policy will be rescinded soon by Congress.)

Finally, consider that the Supreme Court is thought to keep a particularly watchful eye on Judge Reinhardt (even more watchful than the eye some people think it keeps on the Ninth Circuit as a whole). His opinions have probably been reversed by the Supreme Court more times than those of any other sitting Circuit judge. That is partly because he's been around so long. But it's partly because he is reversed quite often. And he is also reversed lopsidedly quite often. In one Supreme Court year, his opinions were reversed unanimously -- that is, without a single Justice ruling in his favor -- in at least five cases, a whopping number given the rarity with which a lower court judge's rulings are even taken up by the high Court as a general matter.

So a Ninth Circuit ruling authored (or joined) by Judge Reinhardt invalidating Proposition 8 will likely catch the attention of the high Court and its law clerks all the more. (Remember, too, that the Supreme Court has already seemed to send a message that it is keeping tabs on this case when the Court unexpectedly -- and to my mind unjustifiably -- intervened a year ago, by a 5-4 vote, to stop U.S. District Judge Vaughn Walker from broadcasting the Proposition 8 trial to other federal court venues, in Hollingsworth v. Perry.)

Even if Judge Reinhardt would like to see a federal constitutional right to same-sex marriage recognized, will he think that a case in which he himself has played a large part is a good vehicle to accomplish that end right now, given the specter of Supreme Court review?

These and other questions will simply have to await the decision of the three-judge panel; its ruling will probably come down sometime during the first half of next year.

May 21, 2010

Elena Kagan's Confirmation Hearings: Her Lack of Judicial Experience May Not Matter, But a Key Essay She Wrote Might

Many commentators and some Republican Senators have been suggesting that Supreme Court nominee Elena Kagan should undergo particularly rigorous questioning in the Senate because the "paper record" setting out what she believes and stands for is rather thin. This thinness is due in part, say some Kagan detractors, to the fact that she is not, and has never been, a judge. In this column, I discuss the relevance of Kagan's not having served in the judiciary to the adequacy of her paper record, and discuss more generally — based on something that is in her record — what the hearings might feature.

Kagan Lacks Judicial Experience — But So Did Some Influential Prior Justices

Let's begin with the criticism that Kagan's record is opaque because she hasn't ever been a judge. It's true that every member who has been appointed to the Court for the last 40 years or so had some judicial experience, and that every Justice today came to the Court from the United States Court of Appeals.

But, of course, great (that is, influential) Justices like Earl Warren, William Rehnquist, and Hugo Black lacked significant judicial experience before their appointments to the Court.

Equally importantly, many other, more recent, Justices lacked enough judicial experience to really tell us much about the kind of Justices they would likely be if confirmed. It might initially seem that the Senate's task is easy when a nominee has been a judge: simply read a jurist's past decisions to glean his/her approach to judging, and compare that approach to the Senate's own vision(s). But, in fact, past decisions may not tell us much, and may indeed be misleading in what they do suggest.

For one thing, stare decisis — the principle that precedent should generally be followed, and that precedent from higher courts is binding on judges lower down in the pyramid — limits all lower courts, federal and state. This principle may force individual judges to reach decisions and embrace reasoning that are deeply in conflict with the judge's own views.

Ironically, the willingness to reach such a decision, or employ such reasoning, based on precedent, despite the judge's personal views, may in fact illustrate a virtue, even though, during the confirmation process, past respect for the rule of stare decisis places limits on how much we can really learn from a lower court judge's record.

Moreover, some existing state (as opposed to federal) court judges may not have had occasion to consider many of the kinds of federal questions that regularly confront the Supreme Court. (Because certain federal questions can be easily litigated in federal court, they arise infrequently in state court; indeed, some federal issues, such as those regarding federal criminal law, are almost never heard in state courts.)

Thus, the kind of judge whose record tells us a lot about the kind of Justice s/he will make is a lower federal court judge who has served long enough such that s/he will have confronted many important questions on which (confining) Supreme Court precedent has been sparse. Some of the Court's current Justices — like Justices Alito, Kennedy and Sotomayor — had just such a record. But others, like Chief Justice Roberts or Justice Thomas (or retired Justice Souter, who was appointed in the 1990s), did not serve on a lower federal court for a sufficiently long period of time to generate a large number of probative rulings that provided a meaningful sense of how each might rule when freed from the duty to abide by the rulings of a higher Court.

Indeed, Chief Justice Roberts's paper record, prior to his time on the Court, was about as thin as Dean Kagan's. When Roberts was nominated, he had no lengthy judicial track record, but rather a distinguished history of serving particular clients — specifically, Presidential Administrations and private clients. Kagan, for her part, has represented mainly Presidential Administrations. And, of course, a lawyer representing clients must make arguments based on what the client wants to accomplish, rather than what the lawyer believes is necessarily right as a matter of law.

Thus, on the whole, for Roberts there were — and for Kagan, there are — not very many specific articulations of viewpoints to go on. Instead, the President's nomination was more probably grounded on non-public information he had, and/or a general sense of each nominee's philosophy based on the organizations, institutions and Administrations the nominee had chosen to affiliate with in the past. But my suggestion here is that there was not much more to go on for Roberts than there is for Kagan, and yet Roberts's sparse record didn't bother Republicans during his nomination and confirmation process.

Can Other Sources Tell Us What We Need to Know About What Kagan Would Be Like as a Justice?

In Kagan's case, we might expect that we could glean a lot from her scholarship as an academic. After all, law professors (unlike lower court judges and practicing lawyers) are constrained by neither precedent nor a client's need, in the positions they take. Academic freedom means that scholars are able, and encouraged, to say what they really believe.

Still, even here, we need all be sensitive to the nuanced roles that academics play. Professors are taught to be, and rewarded for being, provocative. Thus, an academic will sometimes float an argument in order to generate discussion and dialogue, even when he is not yet convinced that he is right. (Some of unsuccessful Supreme Court nominee Robert Bork's controversial scholarship may belong in this category.)

Yet for Dean Kagan, the real problem is not that we might overread her scholarship, but rather that there may not be enough for us to read. Either because she was interested and involved in Deaning early in her career, or for other reasons altogether, she simply didn't produce a large number of meaty law review articles or essays or books. There are, to be sure, some important pieces she wrote; she did very careful work in the area of free speech doctrine, and wrote a substantial article on various aspects of administrative law. She also wrote an interesting essay on hate speech codes for the UC Davis Law Review about 15 years ago (at my invitation and the invitation of my frequent FindLaw co-author, Alan Brownstein).

The Book Review Kagan Authored that May Play an Important Role During the Hearings

But there is one piece in particular that Kagan wrote that may well stand out, and become central in her confirmation hearing. In it, she didn't talk about her views concerning Roe v. Wade, or Bakke, or Miranda, or the death penalty, or other momentous substantive constitutional issues of our day. But she did talk about a big and timely question of constitutional process — the proper role the Senate should play in the confirmation hearings.

In a 1995 University of Chicago Law Review book review, Dean Kagan powerfully critiqued a book written by Yale Law professor Stephen Carter, in which Professor Carter essentially argued that the Senate should avoid asking specific and substantive questions about a nominee's constitutional vision, but should instead largely satisfy itself with an inquiry into the nominee's qualifications, temperament, and character.

Disagreeing sharply with this view, Professor Kagan labelled the current state of affairs — in which nominees avoid answering specific questions ("stonewalling" is the term she uses) about specific constitutional controversies of our era — a "mess." She characterized the modern confirmation process as lacking in "seriousness and substance," and as an exercise that "takes on an air of vacuity and farce."

In her book review, Kagan observed that without specific questions and meaningful answers, the Senate isn't doing its job and the country can't learn what it needs to know; general discussions of philosophies simply are not revealing enough. Nominee "comments on particular issues" are necessary.

Kagan criticized the Senate for not putting more pressure on the nominees, and, importantly, she pointed out that recent nominees' reasons for refusing to answer specific questions — that answers would compromise judicial independence — were hogwash (an "especial red herring" she termed it.) If this reason for clamming up were right, she correctly observed, then "Justice Scalia [would be] in a permanent state of recusal, given that in the corpus of his judicial opinions he has stated unequivocal views on every subject of any importance."

I myself have expressed views similar to Kagan's, on this website and in academic writings, both before and after Kagan's book review. In my writings, I've explored in much more detail why the explanations nominees have proffered for refusing to answer simply don't hold up to scrutiny. For me (and apparently for Dean Kagan), a specific question by the Senate is fair game so long as it does not seek a promise or a commitment from the nominee, in form or effect, as to how s/he would rule if confirmed. So I laud Dean Kagan for the views she expressed in this 15-year-old book review.

In Light of Kagan's Position in Favor of Searching Senate Questioning, Must She, as a Nominee, Provide Answers to Such Questioning?

The question now, of course, is whether (or how) Kagan can avoid providing specific answers to questions about her views on the hot-button constitutional issues, given that she is on clear record that the Senate's job is to obtain these answers and that there is no reason that such answers can't be given by a nominee.

To be sure, at other points in her book review, Kagan does point out that nominees understandably conform their behavior in the hearings to that of many prior nominees, and that in their hearings Justices Ginsburg and Breyer sincerely believed the mantra about judicial independence that they offered to explain their refusal to answer certain questions. But unless Dean Kagan says that she now agrees with Ginsburg's and Breyer's flimsy reasoning — which would be hard to do, given the force with which she argued to the contrary in 1995 — we may very well get some meaningful and specific answers from Kagan in the hearings to fill in the somewhat sparse record.

Cross-posted from FindLaw.com.