Monday, May 15, 2017
I have a special appreciation for the questions of rising 3L law students – those who have completed their second year of law school but not yet started their third. They possess just enough knowledge to begin asking sharp legal questions, but do not yet possess the regrettable fear of asking “dumb” questions that seems, for inexplicable reasons, to settle upon third year students. One such “rising 3L” asked about my two recent posts on the Clower case (see this blog below). Why, she queried, does it matter—in national terms—what a state court judge in Alabama thinks about the application of “open courts” provisions or substantive due process analysis to workers’ compensation benefit adequacy?
I was first absolutely thrilled that one of my students noticed the posts and picked up on common themes from my workers’ compensation course (and from my thinking and writing about workers’ compensation). My answer to her centered on two distinct strands of thought. First, appellate cases must come from trial decisions like Clower. This is almost universally true of the United States system. Questions of law cannot, consistent with our judicial system founded on cases and controversies, magically emerge from the Mt. Olympus of a state supreme court. A party must first attempt to prove a concrete and particularized harm in a trial court or administrative agency. Now it is quite true that a given trial decision would be reviewed in a particular state’s appellate system. But I am hard-pressed to predict, before the fact, which state’s supreme court would necessarily impact national workers’ compensation thinking. I told my student about my early career working as a trial attorney in the Philadelphia regional office of the National Labor Relations Board. One never knew which case was likely to make a splash. My office colleague took to trial a seemingly innocuous case which became Allentown Mack, one of the lead Supreme Court cases (authored by Justice Scalia) on judicial review of agency adjudication. We never saw it coming. Closer to home, who could have predicted a three-year-long national discussion on workers’ compensation opt-out in Oklahoma? Not me.
The second and related strand I emphasized for my student is that lower-court state decisions can speak to the permeation of national discussions. Clower appears to draw upon a national due process critique of the adequacy of workers’ compensation remedies. I am of the opinion that the mode of analysis employed by the judge in Clower will become more commonplace, particularly if national disability systems are disrupted in the current political environment (as I expect them to be). I find it remarkable that a lower-court judge in Alabama felt on sufficiently solid legal ground to render such an opinion. Seen in this light, it is not the sole measure of importance whether his decision is ultimately upheld by other courts or responded to by the Alabama legislature. These ideas have currency. I am currently studying the history of the development of the substantial evidence rule in administrative law and find myself, once-again, thoroughly impressed by the complexity and incrementalism of legal movements culminating in principles that we “moderns” now take for granted.
Michael C. Duff