(Updated) Opinion analysis: The limited virtues of judicial modesty
Richard Epstein recorded a podcast on this decision for the Federalist Society. Listen to it here.
On January 11, 2012, a unanimous Supreme Court issued its decision in Pacific Operators OffShore v. Valladolid, which addresses the interpretation of Section 1333(b) of the Outer Continental Shelf Lands Act (OCSLA). The text of the statute reads in full as follows:
With respect to disability or death of an employee resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf, compensation shall be payable under the provisions of the Longshore and Harbor Workers’ Compensation Act.
The correct interpretation of this section centers on the elusive words “resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf.” The facts that gave rise to the dispute are as simple as the text itself. Juan Valladolid was a roustabout, or manual laborer, most of whose work involved picking up trash, emptying trash cans, swabbing texts, and assisting in operating a platform crane and other odd jobs. Most of the time, he worked on a platform located in the Outer Continental Shelf. But some small fraction of the time his jobs were land based. It was on one of those occasions that he was killed in a forklift accident related to those operations. The question was whether he could receive compensation under the OCSLA for those injuries.
The easy part of the Supreme Court’s job, and one that garnered it unanimous consent, was to reject the aggressive, and indefensible interpretations of the statute that were put up in the first instance by the parties. This is what I predicted in my earlier post after the oral argument. As Justice Thomas writing for the Court stressed, the use of the words “resulting from” necessarily import some causal element into the coverage formula under the OCSLA. It follows therefore as the night the day, that coverage under the law cannot depend, as the en banc Fifth Circuit held in Mills v. Director, Office of Workers’ Compensation Programs, solely on “situs of injury” determinations that have nothing to do with the causal issue. The effort therefore of Pacific Operators to opt for that “bright line” rule that limits the recovery under the OCSLA to those accidents that occurred while on the platform, may well have made life easy for the court. But its fatal law is that it flatly inconsistent with the text, and was rightly and summarily rejected.
Similarly, the federal government offered an equally improbable reading of the statute when it claimed that it did not matter where the particular accident took place, so long as the injured worker spent the bulk of his or her time on the Outer Continental Shelf. Thus, as Justice Thomas rightly pointed out, that rendering of the text would mean that a desk clerk who was hit by a stray boom on a site visit to the Outer Continental Shelf could not recover for his losses because of what he did with the rest of his time. Once again, the near plaintive objection of Justice Thomas affirms our faith in the clarity of the English language. No, no, no, that is not what this text means at all.
The good part therefore of the Supreme Court decision is that it rejected as a matter of statutory interpretation bright-line rules that bear no relationship to the text at all. But what to do then when the causation requirement now kicks in? On this point, Justice Thomas was again on firm ground when he rejected the interpretation of the Third Circuit in Curtis v. Schlumberger Offshore Service, Inc., which embraced some version of the “but for” causation. In its place he adopted a “substantial nexus” test, for which he was chided by Justice Scalia in his concurrence that there is no reason to introduce the phrase “substantial nexus” when the standard law of proximate causation as developed in negligence cases prefers the phrase “substantial factor.”
It is here where things start to turn bad. For starters, neither Justice, however, gives an illustration of why these two formulations are different or identical. So the bad news is that we observe a very standard trope from the Supreme Court. It announces that the tools of statutory construction get rid of some absurd extremes. But it never undertakes the task of indicating how the problem should be resolved as a matter of legal principle. The remand for reexamination in light of the standards developed becomes the tool for avoiding the harder task of letting us know what the words “result in” or any of its variations mean. Nor is there, apart from the recitation of hypothetical cases, the slightest effort to look at the facts in the particular case to see whether it falls within a disputed area, or whether the facts are sufficiently clear to warrant the administrative law equivalent of a directed verdict.
This form of judicial modesty should not be regarded as a sign of intellectual prudence or good judgment The issue of causation is not easy to grasp. In fact, it is one of the hardest issues in the private law of tort. I have written at length recently as to how it should be explicated, and the correct analysis in my view has nothing whatsoever to do with the artificial division of “but for” causation and proximate causation that pervades the literature and sets up the confusion in this case. The difficulty here is that none of the Supreme Court Justices thinks of him or herself primarily as a private lawyer, and thus the Court finds it difficult to battle over questions that are not within the traditional public law domain. So what the Justices do instead is to reproduce uncritically standard tort doctrine, which contains serious errors that make the whole issue obscure in a novel context. Here is a catalogue of common errors that work their way into this opinion.
First, it is always a mistake to begin the discussion of any topic by giving up on the ability to generate a comprehensive theory. Yet Justice Scalia frets openly about the difficulties that his preferred proximate cause formulation presents. But grudgingly he only gives aid and comfort to the standard realist position when he notes first that “[j]udicial opinions do not provide a uniform formulation of the test, and borderline cases are rarely clear.” From that it is an easy step to quote an earlier opinion, Exxon U.S.A. v. Sofec, that ruefully opines “precedents on proximate cause ‘furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other.’” That proposition, which dates from 1 T. Street, Foundations of Legal Liability 110 (1906), should be understood as a confession of intellectual weakness, not a sign of intellectual sophistication. If you give up on theory before you try, everything will be remanded because there are no clear cases one way or the other.
Second, both Justices Thomas and Scalia fall into this realist trap with their common premise that somehow “but for” causation serves as an adequate proxy for causation-in-fact. Thus Justice Thomas writes that “it was highly unlikely that Congress intended to allow all factually injured plaintiffs to recover.” “Highly unlikely” presupposes that “but for” causation is coherent, when it is not. What happened with the statute was that Congress spoke English – rather than bad tort-like jargon – when it announced its rule. The very notion that factual causation means that each particular event has tens or hundreds of causes is absurd on its face. No one uses it in ordinary language. No one should use it here, especially when the second move of the inquiry is quickly to jettison it in favor of the proximate cause inquiry, which is every bit as obscure on the current literature. The right answer therefore is that the Third Circuit decision is absurd on its face, because it offers an answer to no relevant causal inquiry. The proper way to think about causation in fact is this. First identify the relevant causal paradigm, and then see if the plaintiff can prove the allegations that are in fact needed to make this work. Thus if the paradigm is that you hit me, and broke my nose, look to see whether the blow was struck and the nose broke. Every serious tort case has this side to it, no matter how complicated the issue.
Second, it is critical to be aware of the tenuous connection between causation and negligence. Justice Scalia writes in his thoughtful concurrence: “Although the doctrine of proximate cause is rooted in tort law and most commonly applied in negligence actions, it can also provide a useful guide in no-fault compensation schemes like this one.” But note the limitations. Suppose that it is most commonly applied in negligence cases. That means that it is also applied in strict liability cases of the sort that is involved here. What is the connection and difference between the causal analysis in the two cases?
The first part of this answer actually begins with the strict liability side of the line because causation, which – unshackled from the “but for” world – is always simpler than it is in a negligence framework. The “he hit me” paradigm is the direct application of force. One just has to see who applied the force and whether it was expended before it reached its target. The ball from the bat that hits the spectator is the proximate cause of the damage to the body.
Causation, however, is not just limited to direct causation, for otherwise there could never there could never be, as there manifestly is, strict liability for defective products that cause harm in ordinary use. In this instance, we need an account of defect, which is the difference between the product that is presented and the one that is promised or represented. That difference has to persist unchanged until it reaches the plaintiff, who then is hurt when the product causes harm in ordinary use, owing to that concealed defect. The Coke bottle with excessive pressure explodes with ordinary handling. No reference in this account to but-for causation, and none to negligence either. But it shows that concealed defects can roll back causation one more level. It is just this implicit notion that is at work in dealing with the “results in” language that is involved in OCSLA.
But whither negligence? The answer is that it is never needed to establish physical connection, but once it is put into the equation, causation morphs to this extent. In addition to showing that the ball hit the spectator, or the power tool injured its operator, you had to show that the defendant had a duty to take reasonable care, which when neglected allowed these physical connections to go forward. So in the case of the batted ball it is no longer sufficient for a plaintiff to show that he was hit. He also has to show that a netting would have prevented this from happening. And with the defective product, the plaintiff has to show that a reasonable inspection would have uncovered the defect. Again, there is no reference to “but for.” It is only a combination of physical causation and mechanisms of harm avoidance, a more complex causal notion. In my view, there is no need to go through the negligence issue in stranger cases. It is usually indispensable in medical malpractice cases or duty to warn cases.
At this point, there are clear lines that answer the remoteness of damage issues without using ad hoc limitations based on foresight to hedge in the “but for test” that should never have been invoked in the first place. The ball landed before it hit the spectator. The machine tool was repaired before it was used by the worker. These are in fact the way all torts cases are argued by expert witnesses. No one who tries a case asks for any additional information.
So what then is the key for the instant case. It is instructive in this instance to go back to a torts decision by Calvert Magruder, a former law professor turned judge, called Marshall v. Nugent, in which Magruder waxes skeptical about finding any theory of causation that works, only to apply the correct one a few pages later. Ultimately, his basic test is that the defendant in any indirect causation case is only responsible until the increased risk or hazard of the defendant’s hazard poses a risk to the plaintiff. So if the defendant creates a tie-up on a road that forces the plaintiff to take evasive action, causation is not severed, even if his own action is the direct (i.e. trespassory) source of harm. But if he gets past that obstacle and resumes driving under “normal conditions,” the causal connection is severed even if the “delay” is a so-called “but for” cause of the injury. After all a delay in getting to one place early in the day could let you arrive to your hotel a minute late, at which point you are hit by a truck. “But for” causation, yes. Proximate cause, no.
Well, just use that framework here and the case should be a directed verdict for the defendant. The question to ask is whether the work on the platform created some increased risk or hazard for the injured worker, who was off situs. The answer in this case is surely in the negative. The terse statement of facts in the Ninth Circuit says it all: “He was killed, however, on the grounds of Pacific Operations’ onshore oil-processing facility when he was crushed by a forklift.” That is all you need to know to decide this case. The only source of increased risk was the condition in the onshore facility. There was no increased risk from activities on the platform, as would have been the case if he were handling a dangerous load of sludge from the platform that fell on him as he scrambled ashore. With a set of facts this simple, there is no reason to worry about the difference between substantial factor or substantial nexus. What is needed is a patient explication of how cases expand from trespass to the creation of indirect conditions.
Let us hope that when this case makes it way down to the lower courts, they use a bit of clear theory to put this case out of its prolonged misery. The Supreme Court should have done that itself, and Pacific Operators should have pushed this line, not the wrong bright-line situs test. It is very costly for the Supreme Court to punt on private law theory, but that is what we can expect when all the new appointments to the Court will have predominantly public law backgrounds. The difficulties in Valladolid have nothing to do with political or ideological differences. They have everything to do with legal technique. The blunt truth is that no one can do a good job in dealing with the issues arising out of the modern regulatory state unless sound common law fundamentals are part of their intellectual endowments.
Recommended Citation: Richard A. Epstein, (Updated) Opinion analysis: The limited virtues of judicial modesty, SCOTUSblog (Jan. 12, 2012, 2:31 PM), http://www.scotusblog.com/2012/01/opinion-analysis-the-limited-virtues-of-judicial-modesty/