Michael Patrick Allen’s research while affiliated with Stetson University and other places

This essay argues that the Remedies Course is an excellent vehicle by which to assess whether students have achieved the types of knowledge, skills, and values legal educators likely wish them to have upon graduation. It first considers the educational environment in which we find ourselves, including proposed ABA accreditation standards focusing on the needs for greater assessment of professional skills. The paper then explains how a capstone experience at the conclusion of a student’s legal education is one means of addressing these proposed new standards. Finally, it explains why Remedies is one of a select group of courses that can be designed to meet the ABA requirements.

There are currently over 23 million veterans in the United States. Last year alone, the United States paid over $41 billion in benefits related to injuries or death associated with veterans’ military service. This number will only increase as the nation deals with the injuries that the men and women who serve in the military return home from missions in places such as Iraq, Afghanistan, Libya and elsewhere. This commitment to veterans is long standing and is perhaps best captured by President Lincoln’s statement in his second inaugural address that the country has an obligation “to care for him who shall have borne the battle and for his widow and his orphan.”Given this national commitment to veterans, it is odd that until 1988, veterans who believed that they were wrongly denied benefits to which they were entitled had no recourse outside of an administrative process. There was no judicial review. This changed with the Veterans Judicial Review Act of 1988 (the “VJRA”). In the VJRA Congress created an Article I court, today called the United States Court of Appeals for Veterans Claims (the “CAVC”). This Court is an appellate body independent of the Department of Veterans Affairs. As Congress recently recognized, the CAVC is the busiest federal appellate court in terms of cases decided per judge. Decisions of the CAVC are reviewed by the United States Court of Appeals for the Federal Circuit.Congress did not, however, replace the administrative system in which veterans are awarded benefits. That system administered by the Department of Veterans Affairs (the “VA”), the second largest cabinet agency, remains in place. Instead, it grafted judicial review onto that system. The interesting thing is that, as the Supreme Court recognized as recently as March of this year, the administrative is purportedly one that is non-adversarial and pro-claimant. Thus, the system by which veterans are awarded benefits is one that is an amalgam of a non-adversarial administrative process followed by a traditional, adversarial judicial review process.This Article concerns a recent decision of the Federal Circuit, Cushman v. Shinseki. In Cushman, the Federal Circuit held that applicants for veterans’ benefits have protected property interests entitling them to the protections of the Due Process Clause. The Article does not critique Cushman. Rather, it takes that decision as correct. Instead, the Article considers the potential impact that decision has on a process that affects so many Americans.Section I describes the current structure by which veterans’ benefits are awarded and reviewed. An understanding of that structure, and how it was assembled, is critical to an appreciation of Cushman’s impact. After describing the relevant features of the benefits system, Section II then discusses Cushman and decisions of the Federal Circuit and the CAVC applying that case’s rule.Sections III and IV turn to Cushman’s implications. Section III discusses the ways in which Cushman has the potential to alter the functions of the various actors in the process, including the VA adjudicators, the CAVC and the Federal Circuit. Cushman has the potential to affect how each level of the process of adjudication and review of benefits determinations is conducted. In addition, Section III considers how Cushman could affect both how the procedures of the system are developed as well as how veterans approach their claims. Section IV turns to a more conceptual matter. Specifically, it considers what Cushman and its holding reveal about the fundamental nature of the system by which veterans’ benefits determinations are made. Cushman forces one to address the critical question of whether the VA administrative system remains truly non-adversarial. That basic question remains a controversial one. Cushman’s due process holding both reveals the uncertainty in the area as well as provides an opportunity to address this critically important matter head-on. Section V is a brief conclusion, including some preliminary thoughts for ways to improve the system suggested by reflections on Cushman.

This Essay is part of a symposium in the Seattle University Law Review concerning the proper role of the judiciary in American government. In it, I provide a partial defense of the analogy between a judge and an umpire, a topic recently reignited in connection with the confirmation hearings of John Roberts to be the Chief Justice of the United States. The Essay first explores the ways in which this analogy is useful in comparing the non-decisional roles of judges and umpires. It then turns to the similarities in decision-making between these two actors. After canvassing these similarities, as well as acknowledging both the limitations of and dangers inherent in the analogy, the Essay ultimately concludes that the comparison has some important utility in understanding the role of judges in American constitutional democracy.

Until 1988, veterans who believed that they were wrongly denied benefits to which they were entitled had no recourse outside of an administrative process. There was no judicial review. This changed with the Veterans Judicial Review Act of 1988 (the "VJRA"). In the VJRA Congress created an Article I court, today called the United States Court of Appeals for Veterans Claims (the "Veterans Court"). This Court is an appellate body independent of the Department of Veterans Affairs. It has seven judges who are appointed to fifteen year terms. As Congress recently recognized, the Veterans Court is one of the busiest of all federal appellate courts. This year, the Veterans Court is celebrating its twentieth anniversary. This Article proposes that Congress create a commission to study the effect of judicial review over the past two decades as well as propose specific changes to the system that the Commission considers necessary. Such a commission is highly timely. The number of persons entitled to receive some form of veterans' benefit is growing. We have hundreds of thousands of American service members in harm's way. And we now know from news reports and the Dole-Shalala Commission that there are serious problems with the veterans health care system. The Veterans Court's twentieth anniversary provides a perfect opportunity to take stock. After a brief introduction, the Article proceeds in four parts. Part I describes the current process for obtaining veterans' benefits and, in particular, the procedures by which disputes concerning such benefit determinations are adjudicated and reviewed. After outlining the current structure of benefits determinations and judicial review, this Part considers the success and shortcomings of the endeavor over the past two decades. Having set the current stage, Part II articulates an approach for evaluating judicial review in this area including the role of the Veterans Court. It begins by explaining why such a review is warranted even if one assumes that the current structure is functioning well. It then proceeds to call for the creation of a commission appointed by either Congress or the President to conduct a full review of veterans' benefits determinations and their review. This proposed commission would include representatives of all relevant constituencies and be charged with making specific proposals to address problems in the system and to secure perceived successes. Ideally, the commission would also propose specific legislation to address any problems it identifies. In Part III, I preview some of the courses of action open to the commission the Article proposes. The goal of this Part is not to advocate for a particular approach, although several possibilities are ruled out. Rather, Part III is designed to start the discussion that I hope will continue if a commission is convened. Part IV is a brief conclusion. It acknowledges the political difficulties associated with any change to the current system but ultimately argues that the stakes are too high not to move ahead.

Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007), is the latest in the Court's project to explain in what respects the United States Constitution limits punitive damages. While apparently modest, the ruling is a highly significant step in the Court's development of constitutional doctrine in an area of great public interest. This Article considers the implications of Philip Morris on the Court's recently-developed constitutional jurisprudence concerning punitive damages. It has four parts in addition to an introduction. Part II discusses the various ways in which the Court had constitutionally limited punitive damage awards before Philip Morris. Part III focuses on Philip Morris. After briefly explaining the case's factual background, this Part explains the decision's holding. That holding both further serves to constrain the award of punitive damages and, quite confusingly, also appears to affect the role of the jury in the process in a significant fashion. Thereafter, I situate Philip Morris in the broader constitutional landscape. Part IV explores three significant aspects of Philip Morris beyond its impact on constitutional doctrine. First, I consider how the decision will likely affect punitive damages as a remedial device. I suggest that Philip Morris is another step in the Court's campaign to restrict the device to what it perceives to be its historical roots. The result of this effort could have significant repercussions especially when combined with other means by which monetary recovery in the civil justice system is being restricted. Second, I describe Philip Morris's impact on the states' ability to regulate punitive damages. Some of this impact is predictable: states are restricted in using punitive damages in innovative ways. However, the decision also has the potential to affect state regulation in a way that is harmful to defendants. Finally, Part IV considers the decision's impact on juries. I argue that the Court has planted seeds by which the role of the jury in awarding punitive damages could be fundamentally altered. Part V concludes by suggesting that, as significant as it is, Philip Morris leaves a host of questions unresolved.

The Bush administration has asserted a stunning broad vision of executive authority under the Constitution. The expansive scope of Article II power extends to matters both foreign and domestic. It includes, for example, claims of inherent authority in connection with the "war on terror" as well as administrative agency preemption of state law. This Article does not address the legality of any of the Bush administration's claims of executive power. It operates on the assumption that they are at the constitutional envelope. Its focus is on the appropriate role of courts in response to such envelope-pushing constitutional claims. The Article describes a structural equilibrium approach for courts to follow. Under this approach, the judiciary should respond to a constitutional change by preserving the foundational principles on which the Constitution is based. As the Article describes, the three foundational principles are: (1) a commitment to separation of powers both vertically and horizontally; (2) the maintenance of a role for the people in governing; and (3) the preservation of government functionality. In order to apply the theory of structural equilibrium, the Article further describes the salient features of the Bush vision of Article II executive power. Using a number of contemporary examples, the Article outlines a core feature of the Bush vision and three sub-attributes. The core feature is a commitment to the unilateral exercise of power. The three sub-attributes are: (1) power is often exercised in secret; (2) intolerance to criticism; and (3) retribution against critics. The Article then applies the structural equilibrium approach to the particular constitutional vision of the Bush administration. It does so by considering the October 2005 Term of the United States Supreme Court. It does not purport that the Court actually used the structural equilibrium approach. Rather, it considers the Term as if the Court had done so. Along the way, it discusses a number of recent high profile decisions, including those involving military commissions, campaign finance reform laws, assisted suicide, and partisan redistricting. It concludes that the October 2005 would have looked different in important respects had the Court used the structural equilibrium approach as part of its decision-making calculus.

Nearly twenty years ago, Congress for the first time created a system for judicial review of decisions denying veterans benefits. Specifically, Congress created an Article I Court: the United States Court of Appeals for Veterans Claims. Veterans dissatisfied with actions of the Department of Veterans Affairs regarding benefits could appeal to the Veterans Court. The United States Court of Appeals for the Federal Circuit provided appellate oversight of the Veterans Court. There simply is nothing like the Veterans Court elsewhere in American law. Yet, despite its uniqueness, there has been little scholarly attention to this institution. This Article begins to fill the gap in the literature through a focused consideration of the decisions of the Veterans Court and the Federal Circuit from 2004 to 2006. It has three principal parts. First, it describes the current structure of judicial review in the area and provides a statistical analysis of its operation during the relevant period. Second, the Article explores the substantive development of veterans law from January 2004 through March 2006. Finally, based on that substantive law, the Article draws conclusions about the operations of both the Veterans Court and the Federal Circuit.

After nearly twenty-five years on the bench, Justice Sandra Day O'Connor left the Supreme Court at the end of January 2006. There has been much discussion of Justice O'Connor's decisions in areas such as federalism, the First Amendment's Establishment Clause, and affirmative action, among other topics. But very little has been written about her important role in the development of federal constitutional law concerning the "right to die." This Essay seeks to fill this gap in the literature by exploring Justice O'Connor's important concurring opinions in Cruzan and Glucksberg. I argue that these opinions created constitutional promises of a sort that remain unfulfilled as Justice O'Connor retires. I also explain why this need not have been the case while highlighting the real world consequences of the failure to live up to the promises.

Much of America seemed to be captivated - or horrified - last year by the saga concerning Theresa Marie Schiavo and her approach to the end-of-life. One of the most unusual events in a story filled with them was Congressional passage of Public Law 109-03, An Act for the Relief of the Parents of Theresa Marie Schiavo. The Act, which provided a federal forum to consider the constitutional issues related to the removal of Ms. Schiavo's feeding tube, was widely derided, a position with which I agree as a policy matter. However, there were also strident assertions that this Congressional action was unconstitutional. These arguments variously contended that the Act violated principles of federalism, separation of powers and/or constitutional protections of individual liberties. This Article considers the claim that the Act violated the structural constitutional principles concerning separation of powers and federalism. I ultimately conclude that it does not. In fact, I assert that understanding why the Act is consistent with the Constitution tells one a great deal about the American constitutional order.

The Essay was written for the Fourth Remedies Discussion Forum held in November 2005 at the Louis D. Brandies School of Law at the University of Louisville. The papers from the Forum will be published in a forthcoming issue of the Akron Law Review. My contribution to the Forum focuses on tort reform at the federal level in its many forms. In Part I, I survey the potential types of federal tort reform. While many of these types of reform measures could be adopted on the state level as well as nationally, some important ones could not. It is on those uniquely federal measures that I focus much of my attention. This section also considers the interrelationships of the branches of government as well as the political and legal advantages and disadvantages of various types of reform. In Part II, I discuss some of the legislation adopted in the wake of the September 11th terrorist attacks. That legislation provides a useful summary of what can be done at the federal level by combining the various avenues for reform available to the national government. It also gives one a good indication of the extent, and simultaneously, the subtlety of federal power in the American constitutional order.