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DOJ Litigation Strategy.

I was fascinated by Orin's discussion of the pique displayed in the Ninth Circuit regarding the DOJ's refusal to introduce evidence of reasonable suspicion for a border search even though such evidence likely existed. I actually have a good deal of sympathy for the argument that such tactics are like seeking an advisory opinion, though at the end of the day I am not sure that argument holds up.

I seem to recall a somewhat analogous strategy regarding civil rights litigation, where cases brought and arguments raised were carefully controlled to bring issues before the courts in carefully controlled circumstances designed to push or undermine particular legal theories (regardless of whether other theories were available). A similar example might be found in the decision in Lawrence v. Texas not to raise gender discrimination as the basis for their claim, even though to some (me included) that seemed the more obvious point, though one that might be perceived as having more wide-reaching implications, and hence might have deterred some in the middle. (And thus we are back to the question of whether outcomes affect the legal correctness of a decision or position.)

While it may be true that it was unnecessary for the government to rely on the more favorable Supreme Court ruling to defend their search, that hardly means it was improper to do so or that the government is "manufacturing" a case and seeking an advisory opinion by introducing only such evidence as the law requires. Nobody imagines that the government should introduce evidence that a particular law would satisfy strict scrutiny when the proper test is rational basis scrutiny. And that would be true even where greater evidence were available. While a party always has the option of arguing in the alternative that they can satisfy even the stricter test asserted by their opponent, it seems odd to require them to argue on their opponent's preferred ground rather than to dispute the premise and leave it at that. Such litigation choices arise all the time, and the courts routinely take their cases as they are argued, not as they would prefer them to be argued. Failures of proof are routinely held against a party even where that party could have proved far more than they did.

The fact that the absence of proof here forced the court to consider a harder question than it might otherwise have considered does not make the decision advisory. Had the court decided that invasive searches required greater suspicion, the government would have lost the case regardless of whether they could have satisfied satisfied the heightened standard with additional proof. One might criticize the government for risking a conviction by not arguing in the alternative, but I do not see any real problem in forcing the court to apply a broadly deferential rule that the government had ample reason to believe applied and controlled. Had this been a private party with only this single case to consider, rather than the government, the considerations might be different. But where the government is a repeat player in this arena the systemic benefits of establishing new and clear Ninth Circuit precedent presumably serve the "client" better in the long run and thus justify the fairly limited risk of an adverse result in the particular case.

LTEC (mail) (www):
Can someone explain to me why it is bad for someone to "manufacture a case and seek an advisory opinion"? Isn't it good for everyone to know what the law really is, and shouldn't congress and courts be doing this all the time? For example, in the Scopes trial, people wanted the courts to judge the constitutionality of certain laws; instead, there was an obvious conviction which was then thrown out on a technicality, and the real issue never got adjudicated.
9.23.2005 10:15am
John Jenkins (mail):
Federal courts do not issue advisory opinions. There is a constitutional requirement that there be a real "case or controversy" and when people manufacture litigation (i.e. there is no real dispute between the parties) that is not a case or controversy.

The "real issue" should be adjudicated when there are parties who are actually in oppositon, not when they are in collusion with one another (as in the Scopes trial). That way the best arguments for both sides can be heard (it's not hard to imagine one side in a contrived case throwing the case because it truly desires the other outcome) and a decision may be had on the true merits of the case.
9.23.2005 10:40am
sir mix a lot:
what is "institutional reform litigation" but seeking advisory opinions to push the law in the direction loberals want? and practically any case on constitutional law that gets to the Supreme Court has been manipulated by interest groups once it was past the trial stage.
9.23.2005 10:51am
David Berke:
Perhaps, just perhaps, some people would prefer that the Government respect the privacy and rights of its citizens rather than exercising the full limit of their authority on every occasion.

Any time the government claims an unconstrained ability to interfere with the rights of its citizens (and yes, this is a broad generalization extending beyond the 4th Amendment) it makes me nervous.

I would think this would be true of many people. Thus, a judge may well agree that "Govt wins on the merits" while simultaneously wishing they had chosen a manner of proving that victory which showed greater deference to the rights of the people.
9.23.2005 12:27pm
Justin (mail):
The other problem, of course, is that it puts the 9th Circuit between the terrible choice of creating bad precedent based on facts that are not, in a real and complete sense, within the record - and letting someone they know guilty go free based on litigation strategy rather than a failure to prove the case.

It also creates MAJOR difficulty in terms of defining the scope of reasonable suspicion in the first place, because if the DOJ consistently withholds information about reasonable suspicion, they can empirically show their chances of success even when they aren't actually withholding that evidence but simply lacked it in the first place.

In other words, they're cheating to change the law.
9.23.2005 2:53pm
M. Simon (mail) (www):
I have some comments on the question here:

Testing the Limits of the Law.

As to the reasonable suspicion test:

Origins of the Fourth Amendment.

Now here are some of the tests for reasonable suspicion:
1. Large or late model cars with large trunks - GM most popular. a. Intermediate size also used. b. Occasionally a smaller car will be involved. 2. Older car in top running condition. 3. Vans and pickup trucks with camper tops also commonly used.
So now that the drug courier vehicle type is so clearly defined ( just about any car on the road ). Lets see what kind of driver they are looking for.
12. Driving habits often result in the courier being stopped for a routine violation a. Speeding up and slowing down b. Scrupulous obedience to traffic laws - overly cautious c. Erratic driving due to drug or alcohol use d. Many drive straight through and take drugs to stay awake e. Take a long time to pull over
So following the law or not following the law are grounds for a drug search. That sure gives you a lot of choices.
9.24.2005 2:04pm