Note

Reassessing the Doctrine of Judicial Estoppel: The Implications of the Judicial Integrity Rationale

When a party “assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” This doctrine is most often termed “judicial estoppel,” but it may also be called “fact preclusion,” “judicial preclusion,” or “estoppel in pais.” Judicial estoppel is an equitable, court-created, discretionary doctrine that may be invoked by either a party or the court sua sponte. Very simply stated, the doctrine prevents a party from taking a position contradictory to a position which that party adopted previously.

The most difficult questions of judicial estoppel tend to arise when a party asserts an inconsistent claim in two different proceedings, since judicial estoppel “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” For estoppel to be considered in a second proceeding, the first proceeding need not have been a complete case; rather, it may have taken a variety of forms—from a complete court case, to a pleading, to a sworn statement made to an administrative agency. And questions of judicial estoppel arise in a variety of different factual scenarios, from boundary disputes to bankruptcy cases.

Despite enjoying recognition for over one hundred and fifty years in some state courts and over one hundred years in the U.S. Supreme Court, the doctrine of judicial estoppel has never taken one settled form. In the nearly fifteen years since New Hampshire v. Maine—the Court’s seminal modern case on judicial estoppel—was handed down, various federal courts of appeals have changed their approaches to the federal doctrine of judicial estoppel, but no uniform approach has emerged. Different federal courts continue to emphasize different factors and rationales relevant to judicial estoppel when applying their own federal common law approaches to judicial estoppel. At the same time, there continues to be a circuit split over whether the Supreme Court’s decision in Erie Railroad Co. v. Tompkins requires federal courts to apply state law of judicial estoppel in some cases.

Little to no literature exists on the development of federal judicial estoppel—especially in relation to the Erie doctrine—since New Hampshire v. Maine. This Note attempts to fill that gap. Part I of this Note will lay out the background law of judicial estoppel. It will first outline the Supreme Court’s decision in New Hampshire v. Maine and then sketch the ways in which the courts of appeals have emphasized different elements of judicial estoppel when applying their own variations on the doctrine. It also will discuss the various rationales underlying different federal approaches to judicial estoppel.

Part II will begin with an explanation of the split among the courts of appeals over what form of judicial estoppel applies in particular scenarios under the Erie doctrine. The bulk of this Part will outline and defend the proposed rule: that judicial estoppel should be categorized as substantive for the sake of the Erie doctrine, and that a federal court considering the application of judicial estoppel in any case should apply the judicial estoppel doctrine that would be applied by the court that adjudicated the first proceeding. Part III will provide a cursory outline of state approaches to choice-of-law questions that states are faced with when applying judicial estoppel. This Part will also discuss the possible application of Semtek International Inc. v. Lockheed Martin Corp. to the doctrine of judicial estoppel and propose a state approach to choice-of-law questions that arise when states consider judicial estoppel; this proposed state rule mirrors the proposed federal rule under the Erie doctrine.

Clean Air Post-Healthcare: The Federalism Limits of the Spending Power and the Future of Environmental Regulation

Modern environmental regulation was born in the 1970s, at a time when federalism limits to congressional power were essentially an afterthought. Since then, U.S. constitutional law has undergone a federalism revival as Justices of the Rehnquist and Roberts Courts have sought to articulate principled limits to the federal power that ballooned during and after the New Deal. Because of federal environmental law’s expansive scope, many commentators have predicted that this growing revolution could soon change the face of federal environmental regulation.

Emblematic of federalism’s shifting landscape is the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, the politically charged controversy challenging the constitutionality of President Barack Obama’s healthcare reform package, the Patient Protection and Affordable Care Act (“PPACA”). While the majority of headlines about the case reported the Court’s dramatic split over whether the controversial “individual mandate” provision was permissible under the Commerce Clause, the less discussed yet perhaps more significant holding concerned the constitutionality of the “Medicaid expansion” and the scope of the Spending Clause. This new gloss on the Spending Clause could “seriously threaten the constitutionality of a broad swath of federal spending legislation,” including environmental laws.

At the top of the endangered statutes list is the Clean Air Act (“CAA”). The CAA, like many environmental statutes, employs a “cooperative federalism” structure that requires states to take responsibility for administering a federal regulatory program. As “Congress’s most aggressive effort to induce state regulation through the use of conditional spending,” the CAA is considered the most vulnerable environmental statute—and perhaps the most vulnerable statute period—to a federalism challenge post-Sebelius. Just as the PPACA conditioned the receipt of existing Medicaid funds on adopting an expanded Medicaid program, the CAA conditions the receipt of some federal highway funds on the implementation of an air pollution control program tightly managed by the Federal Environmental Protection Agency (“EPA”). This “leveraging” of funds from one program to secure compliance for another was a major factor in the Sebelius majority’s conclusion that the PPACA’s Medicaid expansion was unconstitutional. And although federal highway funds make up a much smaller portion of state budgets than does Medicaid assistance, which might indicate less potential for impermissible “coercion,” federal funds do make up a large proportion of states’ transportation budgets.

EPA’s recent greenhouse gas (“GHG”) rulemakings are a prime example of how the CAA may be vulnerable to a Spending Clause challenge. Chief Justice Roberts’s majority opinion in Sebelius pictured conditional spending as a contract with states, suggesting that Congress exceeds the scope of its Spending Clause power when the terms of that contract—of how states participate in the federal program—change drastically in contravention of states’ reasonable expectations. Although the requirements of the CAA are always in flux as EPA crafts national air pollution control policy to conform to new science and changing environmental priorities, the GHG rulemakings represent the largest nonstatutory change in the Act’s scope in its forty-year history.

This Note will explore the implications of the new Spending Clause jurisprudence for the CAA and how the doctrinal trajectory signaled by the Sebelius decision can undermine both the goals of federal environmental policy and those of our system of federalism itself. Many scholars have already offered assessments of the constitutionality of the CAA after Sebelius, and most have concluded that the Act will stand. While this Note will concur with this conclusion, I hope to offer a more detailed look into the operation and effect of the highway funding sanction in Section 179 of the Act and apply Sebelius in the context of EPA’s controversial GHG rulemaking. Most importantly, this Note will point out the danger of injecting a stronger brand of Tenth Amendment federalism into the Court’s Spending Clause jurisprudence and will discuss how Sebelius might signal a dangerous trajectory for environmental policy and cooperative federalism regulatory schemes in general.

The argument will proceed in four parts. Part I will summarize the structure of the CAA and the importance of cooperative federalism within that structure. Part II will then dissect the Court’s Spending Clause precedents in South Dakota v. Dole and Sebelius, and will dig deeper into the concept of “coercion” from those cases. Part III will apply the new Sebelius test to the CAA and EPA’s GHG rulemaking. Finally, Part IV will discuss why this episode in the Court’s federalism revival may hurt environmental policymaking—and may actually marginalize rather than elevate the power of states in our federal system.

Exiled from Education: Plyler v. Doe’s Impact on the Constitutionality of Long-Term Suspensions and Expulsions

Tunette was a problem student herself, preschool through high school graduation. . . . She remembers being bad. She flipped over a desk in class one time. That happened. But she also remembers that, after getting suspended in preschool, she walked into kindergarten fully convinced the teacher was the enemy. And that never went away. All those times she was suspended, she didn’t come back less angry, ready to obediently follow directions. It was the opposite. Tunette says, ‘I went into kindergarten knowing I was bad. I went into first grade knowing I was terrible. And it just went up from there.’

For students like Tunette, receiving a quality public education is rarely easy. Being poor, speaking another language, and misbehaving all increase the costs of education and provide incentives for schools to exclude students entirely. The Supreme Court issued one potential impediment to schools’ policy of exclusion over thirty years ago in Plyler v. Doe, applying heightened scrutiny to invalidate a Texas law that kept undocumented students out of public schools. The Court’s reasoning suggested the existence of a plausible right of equal access to education under the United States Constitution. Since then, states have attempted to limit this potential right in myriad ways. In some cases, states have gone so far as to directly attack it, passing draconian laws that ban undocumented students from school. For example, in 1994, California voters passed Proposition 187, making it illegal for undocumented students to attend public school. Similarly, in 2011, Alabama passed H.B. 56, requiring parents to report the immigration status of their school-aged children. These laws discouraged parents, fearful of deportation, from sending their children to school. While the exclusion of undocumented students in particular has garnered widespread media coverage, it is far from the only example of school exclusion going on in the United States today. In fact, the hidden excommunication of millions of students who misbehave in classrooms every year gets almost no media attention at all. But it should.

Prior to the 1990s, school districts utilized suspensions and expulsions as a way to address only the most serious offenses, as well as to provide consequences for repeat offenders. Since then, school districts around the country have adopted zero-tolerance policies that “impose[] expulsion or suspension [as a mandatory sanction] for a wide range of . . . conduct,” including trivial offenses such as disrupting class. As a result, by the 2005–2006 school year, more than 3.3 million students were suspended at least once, while over 100,000 students were expelled.

The purported goal of such policies is to maintain the integrity of the learning environment (by, for example, ensuring school safety and protecting academic outcomes for other students) by removing poorly behaved students from class. However, data from the past three decades has demonstrated that such policies are ineffective at achieving either school safety or academic success. For example, throughout the 1980s, 1990s, and early 2000s, school crime rates remained stable, even though suspension rates doubled during the same time period. In other words, school suspensions did not have the effect of increasing school safety. In addition, recent research has found that “a negative relationship [exists] between the use of school suspension and expulsion and school-wide academic achievement, even when controlling for . . . socioeconomic status.” This means that students suffer from poor academic performance at schools with high suspension and expulsion rates. Based on this data, harsh disciplinary policies accomplish little and fail to improve either safety or academic achievement on a school-wide level.

This Note will argue that, following Plyler, public school students have a plausible right of equal access to education under the United States Constitution. In addition to this right, students also benefit from a fundamental right to education in sixteen states. This framework has thus far provided students with some respite from states’ attempts to limit Plyler. However, in states where the right to education is not fundamental, or the status of education has not yet been determined by state supreme courts, school districts regularly violate students’ plausible right of equal access to education in two ways. First, school districts offer no alternative education programs (“AEPs”) during periods of long-term suspension or expulsion. Second, when school districts do offer AEPs, they routinely fail to provide even basic education, which places students at risk of academic failure. Ultimately, long-term suspensions and expulsions mean that many of our nation’s most vulnerable students are not receiving an education. However, as this Note will argue, our federal and state constitutions suggest that they are entitled to one.

In the legal field, little has been written about the implications of Plyler outside the context of undocumented students. The analyses that do exist focus on state and local attempts to limit the rights of undocumented students to attend primary and secondary school. Other studies analyze the limits to higher education that undocumented students face in terms of college admissions and in-state tuition rates. This Note differentiates itself from what the legal field already knows by focusing instead on the interplay between federal and state law to determine how students’ plausible right of equal access to education has been limited in other contexts, specifically school discipline. Such knowledge is worthwhile because it may permit a better understanding of exactly how child advocates can protect their most vulnerable clients from being shut out of the education system altogether. Equipped with this knowledge, school districts can be held accountable for educating all students, even the most behaviorally challenged ones.

To support these claims, this Note will proceed in three parts. Part I will explain the existence of any rights to education in the United States by outlining where possible rights are protected under federal and state law. In Part II, this Note will argue that students who are long-term suspended or expelled are deprived of their rights when states fail to create AEPs at all, or when states provide low-quality AEPs that do not even offer a basic education. Finally, Part III will address the typical school defense that students who misbehave forfeit their right to education.

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