Monday, June 29, 2015

Liberty lists: How Do We Enumerate Rights? Let Me Count the Ways

By Professor Aaron Caplan

This post is part of the Strange Bedfellows series at Prawsblawg.

To enumerate rights or not to enumerate them? Federalist Noah Webster, arguing against the need to include a Bill of Rights in the proposed constitution, asserted that a person sleeping on his right side has a natural law right to roll over and sleep on his left side, but we aren’t going to write such minutiae into the Constitution. Moreover, if that right was constitutionally enumerated, it would imply that those not enumerated—say, the right to wear a hat—were not protected. The latter problem was supposed to be put to bed by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Enumerate away!

The story’s not quite that simple, as the disagreement between plurality and dissent in the recent Kerry v. Din shows. But as a teaching tool, it can be useful to explore the decision to enumerate rights in the constitution through the decision to enumerate rights in court opinions. In a selection of cases, the Supreme Court has sought to provide sample enumerations of unenumerated rights as a way of indicating the scope of American freedom. These "liberty lists" have arisen most prominently in the 20th and 21st centuries with regard to the Due Process Clause, but decisions from before the ratification of the Fourteenth Amendment offered other lists that were claimed to flow from the Privileges And Immunities Clause of Art. IV and the structural meaning of citizenship itself.

Issues worth studying when comparing these various liberty lists are how their contents have (or have not) changed over time; when they are used as opposed to when they are not; and whether the amount of detail in the list correlates to a win for the individual claiming an unenumerated liberty. The punch line at the end of a capacious list is most often “We protect a huge range of liberties, including yours” (as in Meyer v. Nebraska) but it can also be “We protect a huge range of liberties, but not yours” (as in Board of Regents v. Roth).

Friday, June 26, 2015

Chevron After King v. Burwell

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

As Richard already observed today, in King v. Burwell, the Court upheld the government's interpretation of the Affordable Care Act to allow people to get subsidies on healthcare exchanges created by the federal government. Chris Walker has a nice post at JREG discussing the case.   

I agree with Chris that the way the Court reached today's outcome could have broader consequences for administrative law.  I offer some very, tentative off-the-cuff thoughts about the opinion below the fold.

Thursday, June 25, 2015

Thoughts on King v. Burwell

By Professor Brietta Clark

Today the Supreme Court, in a 6-3 decision in King v. Burwell, held that subsidies (or tax credits) are available to help consumers buy insurance, whether they purchase insurance on a State or Federal Exchange. In upholding this critical piece of the Affordable Care Act (ACA), the Court interpreted the law in a way that is most faithful to Congress’s goals of making insurance more affordable and of ensuring the availability of meaningful insurance offerings in the market. Practically, this decision is important because consumers in states that have resisted reform efforts are already suffering from the failure of these states to expand Medicaid; by holding that the ACA authorizes subsidies on a Federal exchange, the Supreme Court has preserved at least one important avenue for increased health care access in these states. But health reform proponents are not only happy about what the Court decided; they are relieved because of how the Court came to its decision.

The issue in the case – whether subsidies would be available for consumers purchasing insurance on a Federal exchange – turned on a question of statutory interpretation. Petitioners challenged the IRS rule authorizing the subsidies as inconsistent with the Affordable Care Act. Specifically, they pointed to language in a provision in the Act, now Section 36B of the Internal Revenue Code, which defines the premium assistance credit amount by referring to an insurance plan that is enrolled in through “an Exchange established by the State….” Petitioners insisted that this text only authorizes subsidies for use on state-run exchanges, but does not authorize them for use in states that have a Federal exchange. Government officials defended the IRS rule by arguing that the relevant language must be read within the context of the statute as a whole, and that based on this, it was clear that Congress intended to make subsidies available for use on State and Federal exchanges.

Wednesday, June 24, 2015

Aggregate Agency Adjudication

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

At Yale's Journal on Regulation, Chris Walker highlights our project on Aggregate Agency Adjudication with the Administrative Conference for the United States. Michael Sant’Ambrogio and I are studying agencies that experiment with class actions, trials by statistics, and other aggregate litigation techniques to resolves lots of cases in their own courts. As we discuss in The Agency Class Action, 112 Colum. L. Rev. 1992 (2012), agencies don't do this very often. And there are lots of reasons why. But, we want to see if agencies can use aggregate adjudication along with other tools -- rulemaking, informal guidance, stare decisis and ADR -- to resolve cases more effectively.

I've already described Medicare's new pilot plan to use "trials by statistics" to alleviate its 500,000+ case backlog. So, here's another example: the National Vaccine Injury Compensation Program. Congress created this program in the 1980s to provide people injured by vaccines with a no-fault alternative to lawsuits in federal court. In theory, an "Office of Special Master" must decide whether to compensate someone in 240 days based on a showing that the vaccine caused the injury. But see Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. _ (forthcoming 2015) (finding, among other things, that it takes longer than that). Many claims proceed one at a time, like most benefit programs. But when over 5,000 parents claimed that a vaccine additive, called Thimerosal, caused autism in children, the Vaccine Program used three “omnibus proceedings" to pool together all the individual claims that raised the same highly contested scientific questions in front of just three adjudicators. As it happens, the Vaccine Program has used coordinated proceedings like this for more than 20 years.

Even though the Act that created the vaccine program contains no provision for class action suits or anything like it, the program developed the concept of the omnibus proceeding on its own because the "same vaccine and injury often involve the same body of medical expertise." Counsel representing large groups of individual claimants often use an omnibus proceeding to answer questions of "general causation," like whether a particular vaccine is capable of causing a specific injury. The issue of whether it did so in a specific case can then be resolved more expeditiously. I'll provide a few more details about this process below, but can you think of other agencies that assign large groups of individual similar cases to the same adjudicator for similar reasons? What are strengths and weaknesses of this kind of approach? The Vaccine Program uses two types of omnibus proceedings. The first involves common vaccines and injuries--applying evidence developed in the context of one or more individual cases to other cases involving the same vaccine and the same or similar injury. See, e.g., Capizzano v. Sec’y, HHS, 440 F.3d 1317 (Fed. Cir. 2006). The second involves hearing evidence on a general theory of causation--like does a rubella vaccine cause chronic arthritis or other categories of joint problems? The special master makes findings based on that evidence and orders the parties to file papers establishing the extent to which the facts of individual cases fit within the courts general findings. See, e.g., Ahern v. Sec’y, HHS, No. 90-1435V, 1993 U.S. Claims LEXIS 51 (Fed. Cl. Spec. Mstr. Jan. 11, 1993). For example, counsel representing a large number of petitioners and counsel for respondent may file expert reports and medical journal articles to support the theory that the rubella vaccine is associated with chronic arthritis. The special master then (1) conducts a hearing in which the medical experts testify, (2) publishes an order setting forth the conclusions, and (3) files it in each of the rubella cases. If he finds sufficient evidence that the rubella vaccination could cause chronic arthropathy under certain conditions, he may order individual petitioners seeking compensation to establish those conditions in a separate filing.

According to one special master, however, most omnibus proceedings work like bellwether trials in federal district court--organizing individual cases that raise similar issues in front of the same adjudicator, in the hopes that a big outcome settles aspects of the remaining cases:

Most omnibus proceedings ... have involved hearing evidence and issuing an opinion in the context of a specific case or cases. Then, by the agreement of the parties, the evidence adduced in the omnibus proceeding is applied to other cases, along with any additional evidence adduced in those particular cases. The parties are thus not bound by the results in the test case, only agreeing that the expert opinions and evidence forming the basis for those opinions could be considered in additional cases presenting the same theory of causation.

The use of the omnibus proceeding is thus less binding than the "all-or-nothing" approach of the class action. But there are some drawbacks. First, some agencies, even if they wanted to, may not be able to adopt omnibus proceedings like the Vaccine Program. Many agencies use administrative law judges, who are assigned randomly to each individual case to minimize bias and to prevent gamesmanship. Second, omnibus proceedings raise interesting questions about the legitimacy of using an adjudication process to settle complex scientific questions. Not only were many plaintiffs in the autism proceedings anxious about commencing cases together, so were members of the public heath community, who "found it unsettling that the safety of vaccines must be put on trial before three "special masters"" in an obscure vaccine court. Said one: "the truth about scientific and medical facts is not, ultimately, something than can be decided either by the whims of judges or the will of the masses."

To be fair, however, those concerns aren't unique to mass litigation, or for that matter, agencies that rely on rulemaking procedures, scientific panels, or even, the Center for Disease Control to resolve tough scientific questions. And, in the case of vaccines and autism, a significant test for the limited resources of the vaccine program, at least some found that the ability to hear common cases together led to deliberations that represented a "comparatively neutral exhaustive examination of the available evidence." But such concerns still raise the question about the best way to efficiently and consistently pool information about many common claims without sacrificing legitimacy, compromising due process, or magnifying the risk of error.

Tuesday, June 23, 2015

Where Two Streams of Commerce Meet

By Professor Aaron Caplan

This post is part of the Strange Bedfellows series at Prawsblawg.

Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.” Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause.

These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.

During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states.

The metaphor was introduced in Swift & Co. v. United States, 196 U.S. 375 (1905), which upheld an antitrust injunction against price-fixing in the meat industry. Even though the agreement to fix prices occurred within the boundaries of one state, that transaction had a significantly plain impact on the interstate flow of goods as to justify federal regulation. As Justice Holmes opinion said:
When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce.

Thursday, June 18, 2015

One-Off Decisions (or, Thoughts on Plyler, Windsor, and Shelley v. Kraemer)

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

Whatever the outcome later this month of Obergefell v. Hodges (state-level bans on same-sex marriage), the decision is certain to refer heavily to US v. Windsor (2013) (federal ban on same-sex marriage). For its part, however, Windsor struck me as a descendent of a precedent it nowhere cited or discussed: Plyler v. Doe (1982).

Plyler invalidated a Texas statute denying public education to non-citizen children residing in the US unlawfully. The statute’s classification was sort of, but not really, based on alienage, which made it sort of, but not really, suspect. Free public education for youth was sort of, but not really, a fundamental right. The law threatened to create an economic underclass, which is sort of, but not really, wealth discrimination (which is sort of, but not really, a suspect classification in any event). There was no explicit finding of legislative animus against a disfavored class, although it seemed to be in the mix. Adding all of these not-quite factors together, the majority concluded that the statute violated equal protection, because “the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.” The dissent complained that “by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the [majority] spins out a theory custom-tailored to the facts of these cases.”

When teaching Plyler, I present it as a glimpse into an alternate universe where the sliding-scale approach favored by Justices Marshall and Stevens had taken hold, so that without regard to rigid categories, the more important the right or the more questionable the classification, the stricter the scrutiny. But it’s only a glimpse. Plyler has had little impact outside its factual setting: it remains a controlling precedent for laws that target undocumented aliens, but has not had any broader influence on equal protection or fundamental rights methodologies. Yet upon reading Windsor, I felt as if I was reading Plyler 2.0. The majority in Windsor portrayed federal DOMA as a statute that sort of, but not really, shifted control over marriage policy from states to the federal government. Marriage was spoken of in grand terms, but its role as a fundamental right was not really the basis of the opinion. The opinion implied that discrimination on the basis of sexual orientation was objectionable, but not really suspect. These various sort-of considerations allowed the majority to conclude that the statute was motivated by animus, obviating the need to undertake the usual examination of legislative means and ends. The dissenters decried the result and also criticized the majority for offering “rootless and shifting” justifications: for coloring outside the lines.

Time will tell if Windsor heralds a revival of Plyler’s approach to equal protection. If it is not, then Plyler remains one of the one-offs among the canonical Con Law cases—good teaching decisions whose results are in no real danger of being overruled, but whose reasoning never shaped the mainstream. The most prominent of the one-off decisions is Shelley v. Kraemer, which held that judicial enforcement of racially restrictive real estate covenants violates equal protection. Almost all instruction on Shelley includes discussion of why its approach to state action didn’t ultimately carry the day; not every instance of contract enforcement is treated as state action subject to the Equal Protection Clause.

For what it’s worth, Shelley makes more sense to me if viewed less as a state action decision but as a precursor to Brown v. Board of Education (if formally neutral law like “courts should enforce contracts” may violate the Equal Protection Clause, then so may a formally neutral segregation law) and Palmore v. Sidoti (1984) (the child custody case most often quoted for the notion that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect”). Viewed in that frame, Shelley is not the one-off that its reputation suggests.

I’d be interested to hear other nominees for one-off decisions, whose reasoning we are unlikely to see again, but that are nonetheless part of the current Con Law canon. My other suggestion is the Spending Clause holding from NFIB v. Sebelius.

Trusting Policing

By Professor Eric J. Miller

For the past eight months, since the shooting of Michael Brown, an unarmed Black man in the City of Ferguson, Missouri, the problem of white police officers using excessive force upon unarmed African Americans has gripped the United States of America The latest incident occurred last week, at a public swimming pool in McKinney, an upper-middle-class suburb of Dallas, Texas. Eric Casebolt, a police officer responding to reports of a fight at a public swimming pool, started shouting at the African American children attending a pool party. A bystander’s video shows him wrestling a bikini-clad and unarmed African American teenage girl to the ground, then drawing his weapon and using it to threaten other African Americans who were clearly disturbed by his use of force. He then kneels on the girl, whose screams of pain can distinctly be heard.

A common trope in contemporary policing is the idea that policing depends upon trust between the police and the community. Building trust between the police and communities is a central part of President Obama’s initiatives to strengthen relationships between communities and the police. But trust (and its opposite, distrust or suspicion) can be misplaced in stereotypical ways that unfairly empower or disempower people or groups. In those sorts of cases, we wrong people when we jump to conclusions based on their race, or gender, or some other superficial feature, and on that basis do afford their assertions less credibility than they deserve. In some cases, we give credence to the testimony of a witness because he is male, or white, and withhold it from another because she is female, or Latina. In countries around the world, we’ve seen, to our cost, that we tend to dismiss children when they claim abuse, but believe the priest or parent because of his position in the community.

Tuesday, June 16, 2015

Female Political Candidates Are Treated As Circus Freaks

By: Professor Jessica A. Levinson

This is an excerpt from an article by Professor Jessica A. Levinson on the San Francisco Chronicle

The message that these comparisons between Clinton and Fiorina send is clear — each side gets its one female candidate, no more, no fewer. It is all but understood that Clinton would not pick a female running mate. There would be no need, because we have already checked the gender box on her candidacy. Similarly, in the unlikely event that Fiorina were nominated for president, or chosen as a vice presidential candidate, it is all but assured that she would be the only female on that ticket.

Female candidates are therefore made into circus-like oddities. Come one, come all, and take a look at the women who want to be president. Let’s stop making female candidates circus freaks.

Read the full article here

Monday, June 15, 2015

Oppression vs. Discrimination: How the Law Failed Ellen Pao

By: Professor Sean M. Scott

This is an excerpt from a post by Dean Sean Scott on the Ms. Magazine blog.  
The issue in Pao’s case is not whether she was legally discriminated against, although cases such as this one highlight the inadequacy of the law in redressing the harm that goes unnamed but characterizes the experience of many women in the work force, particularly those in male-dominated fields. The law can do a better job of providing those who want to challenge their place in the social scheme with more effective tools to do so. Perhaps the question the law should be asking is not whether there was discrimination, but rather whether the actions undertaken, regardless of motive, result in the subordination of another based on her gender, race, ethnicity or some combination of all of these characteristics.
 The larger societal issue is how to begin to see the patterns of oppression that need no individual animus to replicate themselves. Until we can see, recognize and acknowledge that the harm suffered is oppression, not discrimination, the lives of women in the workplace will continue to be filled with Faustian choices.

Read the full post on the Ms. blog

The Bellwether Settlement

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

A curious thing is happening in a Bergen County court in New Jersey. A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."

By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims. A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.

But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement. It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful. The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.

A few thoughts beneath the fold.

Wednesday, June 10, 2015

Mass Compensation After September 11

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

Thanks to everyone for having me this month. For those of you who don’t know me, I write about complex litigation, mass torts and administrative law. Lately, I've been writing a lot about the issues that come up when mass disputes appear in unusual places—like administrative adjudication and agency settlements, federal prosecution agreements, private corporations, and even, the Presidency.

Despite some personal experience with it, I haven’t written much about the mass litigation that followed September 11. (But see here). However, in the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero. The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders. After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.

Tuesday, June 9, 2015

Prof. Caplan on PrawfsBlawg: Jury Selection All Over the Place

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

Jury selection appears often in the Con Law canon. The first SCOTUS case to find a violation of the Equal Protection Clause, Strauder v. West Virginia (1879), involved a statute that included only white men in the jury pool. Hoyt v. Florida (1961), an anti-canonical case usually taught as an example of the bad old days before sex classifications were deemed (quasi-) suspect, involved a law that excused women from the jury pool. Batson v. Kentucky (1986) involved a prosecutor’s peremptory strikes on the basis of race, but it tends to be taught in Criminal Procedure courses. Its progeny Edmonson v. Leesville Concrete (1991) applied Batson to peremptory strikes in civil cases; it is taught more often in introductory Con Law courses than is Batson, because it is conceptualized as a case about the state action doctrine. More recently, the first US Court of 
Appeals decision holding sexual orientation to be a (quasi-) suspect classification (included in my casebook) arose in the civil Batson context, after a gay man was peremptorily stricken from a jury deciding an antitrust claim against a manufacturer of HIV medications. SmithKline Beecham v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014).

These decisions are often taught and presented in casebooks as if jury selection just happens to be the factual setting in which a legal question (usually involving equal protection) just happens to arise. This is a lost opportunity, because the jury trial can be worthy of independent consideration in a Con Law survey course. Even if not taught together on the same day or same unit, it can be valuable to use such cases to emphasize the jury as an institution of constitutional dimension.

Continue reading

Monday, June 8, 2015

Prof. Caplan Publishes An Integrated Approach to Constitutional Law

Professor Aaron H. Caplan's An Integrated Approach to Constitutional Law is a "groundbreaking casebook is ideal for one-semester introductory Constitutional Law courses of 3–5 units that teach both structure and rights. Its novel approach presents constitutional law as a coherent system, not as isolated doctrines in silos. The book integrates subjects ordinarily taught in Con Law I and II; it integrates historical and doctrinal approaches; it integrates features of a casebook and a study guide; and it presents each case as an integrated whole, so that students learn relationships among doctrines while studying the details of each. Its tone is accessible, while its structure allows for sophisticated classroom discussion. A detailed teacher's manual offers charts, graphics, and additional source materials, significantly enhancing accessibility for first-time adopters."

Friday, June 5, 2015

Article III, Mandatory Arbitration, and Corporate Settlement Mills

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

To follow up on Richard's post, I wanted to ask your thoughts about another aspect of the Supreme Court’s most recent Article III decision in Wellness Int’l v. Sharif (2015). As a reminder, Sharif is one of many cases that asks how much power Congress can give to bankruptcy courts, legislative courts and other dispute resolution programs without threatening our independent federal judiciary. Over at Indisputably, Jean Sternlight argues that the opinion raises "substantial questions as to the constitutional legitimacy of ... private mandatory arbitration." She observes:

[Sharif] held that litigants may “knowingly and voluntarily” allow a bankruptcy judge to hear claims that, absent such consent, Article III would bar the bankruptcy judge from deciding...

Yet, while the Justices who have spoken on the topic seem inclined to find arbitration permissible, the principles espoused by the Court cast doubt as to the constitutional legitimacy under Article III of mandatory private arbitration. Lower court decisions have blithely held that arbitration is permitted because parties waive their right to go to court when they agree to arbitrate, but the issue is not so simple...

[W]hen courts have sought to justify arbitration on the ground that parties “consented” to bring claims in arbitration rather than in court, they have not applied the “knowing and voluntary” definition of consent recently applied in Sharif. If courts did look for knowing and voluntary consent they would find that while many business-to-business arbitration agreements meet the test, few if any consumer and employment clauses do so.

(H/T Jeff Sovern). I wonder whether Sternlight’s argument cuts more broadly. "Mandatory arbitration" refers to "take-it-or leave" it agreements forged between businesses and consumers before a dispute arises. But do you think the same analysis could apply to recent efforts by policymakers to encourage or require similar corporate dispute resolution programs after-the-fact? Some thoughts after the jump. 

Agency Class Actions and Trials By Statistics

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

According to a hearing at the Senate Finance Committee last month, a crisis is brewing at Medicare's Office of Hearings and Appeals (OHMA). OHMA is a small federal agency that hears billing disputes between the federal government and hospitals, doctors, nursing homes, and medical equipment providers. As Medicare has stepped up efforts to recover excess billings, the backlog of cases with OHMA has tripled to more than500,000 in just four years. Worse yet, average wait times have mushroomed from 121 days in 2011 to 603 days in 2015. Even though Medicare is required to make such decisions, by statute, in 90 days, Medicare's workload is now so heavy that it takes OMHA 20 to 24 weeks to even enter new cases into its docket.

In response, OHMA has adopted a fascinating new pilot program that allows medical providers with large numbers of similar billing claims to conduct "trials by statistics." Dubbed the "Statistical Sampling Initiative," a medical provider with more than 250 similar claims would have the option to try a small sampling of those claims before an administrative law judge and extrapolate the average result to the rest. To do so, a hospital, doctor or other medical provider would meet with one of Medicare's "trained and experienced statistical expert[s]" to develop the "appropriate sampling methodology" and randomly select the sample cases to be extrapolated to the whole. Following a pre-hearing conference, all of the pending claims would be consolidated in front of a single Administrative Law Judge to hear all of the sample cases selected by the OMHA statistical expert. The results of the sample cases would then be applied to all of the remaining cases. Although we had nothing to do with this -- Medicare has a long history of using sampling techniques in enforcement actions -- the pilot sounds much like an approach to "trials by statistics" that Michael Sant'Ambrogio and I recommended for agencies in The Agency Class Action, 112 Colum. L. Rev. 1992, 2060-63 (2012).

Michael and I are currently studying aggregate litigation programs, like this, in administrative agencies with the Administrative Conference of the United States. So, we welcome your input, experiences or thoughts about other administrative programs that use similar techniques to resolve lots of cases. Medicare's program is interesting because it differs from the way the Supreme Court, and most of the administrative state, approaches adjudication. Some thoughts about this new pilot program, and other ways agencies use aggregate adjudication, after the jump.