Reluctant Judicial Factfinding: When Minimalism and Judicial Modesty Go Too Far

• Publication year: 2009

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 3SPRING 2009

Reluctant Judicial Factfinding: When Minimalism and Judicial Modesty Go Too Far

Scott A. Moss(fn*)

I. The Minimalism Debate, and a Competing Argument for an Increased Judicial Role

A. Minimalism's Ideologically Diverse Fan Club

Judicial minimalism is all the rage among a wide range of judges and commentators. The basic idea is not new: that the Supreme Court should exercise restraint in striking down laws based on constitutional rights is a traditional argument of judicial conservatives, originalists, and others with qualms about broad constitutional decisions.(fn1) In this vein, Douglas Kmiec praises one of the Roberts Court's first high-profile cases, Ayotte v. Planned Parenthood of Northern New England, (fn2) as a "profoundf] exercise of judicial restraint."(fn3) In rejecting a facial challenge to a requirement of parental consent for a minor's abortion, "Ayotte stands for three principles: nullify no more of an unconstitutional law than is necessary, do not rewrite state laws to make them constitutional, and stay true to the intent of the legislature in passing the law at issue."(fn4)

What is new is minimalism's support from those who support decisions broadening constitutional rights. Cass Sunstein famously agrees with Roe v. Wade (fn5) that the Constitution protects abortion rights but opines that:[t]he Court would have done far better to proceed slowly and incrementally ... [It] might have ruled that abortions could not be prohibited in cases of rape or incest, or that the law at issue in Roe was invalid even if some abortion restrictions might be acceptable. Such narrow grounds would have allowed democratic processes to proceed with a degree of independence-and perhaps to find their own creative solutions ... .(fn6)

Sunstein similarly splits the difference on other controversial rights, defending how the Court simultaneously refused to strike a ban on assisted suicide(fn7) yet struck a criminal ban on nontraditional sex.(fn8) Sunstein said that in the latter case, however, he "would have preferred a narrower rationale for the Court's conclusion": "For substantive due process, a form of minimalism seems best, embodied in a willingness to reject some traditions, but in a way that is usually respectful of democratic judgments and that attempts to avoid the most contentious debates... ."(fn9)

Minimalism has its limitations and critics, of course. Sunstein himself notes that minimalism is not the panacea for all jurisprudence: "Any defense of minimalist adjudication is essentially the same in principle as a defense of standards over rules-and there is no reason to think that such a defense can be made convincing in all of the contexts" where the Court adjudicates.(fn10) In a more critical vein, Tracy Thomas argues that one major manifestation of the Court's minimalism-its declaration of a preference for "proportionality" rather than breadth in remedies- "elevates the preferences of defendant wrongdoers above justice to plaintiffs. This perversion of the remedial process into protection for the wrongdoer is a threat to the rule of law . .. ."(fn11)

B. A Realm of Too Much Minimalism: Reluctant Judicial Factfinding

Whatever the merits of minimalism in constitutional adjudication, this Essay argues that in another aspect of federal adjudication-what this Essay terms "reluctant judicial factfinding"-we already have too much minimalism. In certain areas of law, courts are quite reluctant to engage in close scrutiny of critically important facts, instead falling back on policies that avoid such factfinding, including:a) relying upon formalities over substance, such as when affirmative defenses turn on the quality of defendants' compliance efforts, and courts approve such efforts based on their formal characteristics, without any closer look at their substance (see Part II below); b) deferring to the parties whose actions are at issue, as in cases challenging actions by defendants that are certain kinds of complex institutions, such as prisons or schools (see Part III below); and c) avoiding issuing rulings the litigation rules contemplate, such as the awards of attorney's fees mandated by Federal Rule 37 for prevailing parties on discovery motions (see Part IV below).

Parts II, III, and IV discuss each of these three areas of reluctant judicial factfinding. Then, Part V offers some thoughts as to possible causes of this reluctance to undertake factual inquiries that statutes, rules, and Supreme Court precedent instruct district and appellate courts to undertake. One possibility is that hostility to litigation motivates courts to shy away from detailed factfinding that certain cases require. Such hostility likely is part of the story-at least as to some courts that exhibit an unusual degree of hostility to certain kinds of cases. But more fundamentally, even a judge not at all hostile to litigation may shy away from the sort of detailed factual look at a party that would require the judge to second-guess attorney motivations in discovery, to second-guess judgment calls by complex institutions such as prisons or universities, or to second-guess the details of a workplace anti-bias program. Such reluctance may derive from an otherwise commendable judicial modesty-yet in the three areas this Essay discusses, judicial second-guessing of litigants is mandated by law, and refusal to second-guess just yields poor factual findings. In short, judges should not shy away from aggressive factfinding roles where their authority and need to do so is clear, even if it stretches judges past understandable limits of their comfort zone.

II. Avoiding Factfinding by Relying Upon Formality Over Substance: Insufficient Scrutiny of Anti-Discrimination Programs

In employment discrimination and harassment cases, two key defenses for employers turn on the quality of their anti-discrimination and anti-harassment programs. Unfortunately, the case law on these defenses shows little judicial appetite for the sort of fact-laden, subjective inquiries these defenses require of judges.

First, Faragher v. City of Boca Raton(fn12) and Burlington Industries, Inc., v. Ellerth(fn13) announced that even where an employee proves unlawful workplace harassment by a supervisor, the employer is not vicariously liable if it establishes a two-part affirmative defense: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise" (the Faragher/Ellerth defense).(fn14)

Second, an employment discrimination plaintiff can recover punitive damages against an employer only when the employer acted "with malice or with reckless indifference" to the employee's antidiscrimination rights.(fn15) In Kolstad v. American Dental Association, (fn16) the Supreme Court interpreted that statutory requirement as disallowing punitive damages when the employer can establish an affirmative defense: that whatever individuals in the workplace committed the discrimination, they did so contrary to the employer's good faith efforts to comply with the discrimination laws (the Kolstad defense).(fn17)

Employer programs are key to both the Faragher/Ellerth defense and the Kolstad defense. The Faragher/Ellerth inquiry into the employer's efforts "to prevent and correct promptly any sexually harassing behavior"(fn18) and the Kolstad inquiry into whether the employer "has undertaken . . . good faith efforts at Title VII compliance"(fn19) are distinct but substantially overlap "in practice."(fn20)

Both Faragher/Ellerth and Kolstad expressly demand that the employer bear a burden of proving not just the existence but the substantive sufficiency of their anti-bias programs-yet the case law features little judicial inquiry into substance. Under Kolstad, the employer must prove that it undertook "good faith ... compliance" efforts;(fn21) under Faragher/Ellerth, the employer must prove it "exercised reasonable care" in its efforts to prevent and correct workplace harassment.(fn22) To many courts, however, the mere fact that an employer has the fairly standard workplace anti-bias policy-any employee training, a grievance policy, and an official anti-discrimination/harassment policy-suffices, without any inquiry into the substance of the complaint process or training, to establish both the Kolstad defense(fn23) and the Faragher/Ellerth defense.(fn24) Such courts "have deferred to an employer's procedures, regardless of their actual effectiveness," Susan Sturm has noted.(fn25)

This approach many courts are taking is one of facial adequacy-an employer merely has to check the boxes of the standard anti-bias program-that reflects a judicial reluctance to undertake the sort of scrutiny of anti-bias programs that the Supreme Court has made an important part of many discrimination and harassment cases. That many courts are relying only on formalities rather than substance is unfortunate, given the extensive criticism of many employer programs as pro forma, ineffectual, or worse. "Many of the internal dispute resolution mechanisms developed by employers ... consist of boilerplate from the most recent...