Chloe Knox ‘22
Guest Writer
The Federalist Society welcomed Judge John Nalbandian ’94 of the Sixth Circuit back to Grounds last Wednesday to speak with students and faculty about current developments in the legal landscape. He admitted that he had not visited the school in over a decade before returning last spring to celebrate his 25-year reunion. After realizing how much he had missed the Charlottesville community, he was grateful for an opportunity to visit with professors and friends on the faculty, connect with current students, and, of course, make a trip to Bodo’s Bagels.
Judge Nalbandian conceded that the title of his speech, “Litigation Strategies for a New Era,” may have been ambitious. Are we actually in a new era that requires an innovative approach? He provided a two-fold reason—the first, general and philosophical and, the second, identifiable and practical—of why he would answer in the affirmative. The first prong centers on the transformation of the judicial landscape over the past few years and the change in methodological approaches that followed. The second prong centers on the technological innovations now available to litigators.
There has been a noteworthy transformation in the legal landscape over the past three years driven by the pace of judicial appointments. As of late January, the Senate has confirmed 187 federal judges nominated by President Trump. In the Courts of Appeals, 50 of the 180 active seats are now occupied by Trump appointees. With this influx of newly appointed judges, there has been a distinguishable shift in methods of interpretation.
Judge Nalbandian offered a few examples of these shifts. The Supreme Court’s opinions in United Steel Workers v. Weber[1] and Public Citizen v. DOJ[2] largely rested on what the justices viewed as the legislative intent for the statutes at hand—Title VII of the Civil Rights Act of 1964 and the Federal Advisory Committee Act respectively. Judge Nalbandian claimed that there is now less of a reliance on legislative history for the purposes of statutory analysis. He explained that judges are wary of citing to a statute’s history out of respect for bicameralism, since only the text itself demonstrates what both Houses of Congress agreed upon. Similarly, there also has been a distinct shift from reliance on original intent to reliance on original public meaning, as District of Columbia v. Heller[3] demonstrates. Rather than relying on how we may interpret the meaning of the text today, judges more frequently decide cases based upon how its language would have been understood at the time of its enactment. The growing number of citations to Antonin Scalia and Bryan Garner’s book The Interpretation of Legal Texts is an indication that the federal courts’ opinions are resting more on originalist and textualist interpretations.
Judge Nalbandian then turned to consider methodological stare decisis—whether courts feel bound by their previous interpretive methods. He believes that not only do courts not treat methodological decisions as binding, but they also would be greatly skeptical of any congressional attempt to tell the courts what methods to use.
What strategies should lawyers consider in the midst of this shift? How are they to litigate if the courts do not feel bound by methodological precedent? Judge Nalbandian recommended starting with the text itself. Beginning with a focus on the plain meaning of the text of the statute, constitution, or contract at issue will help frame the rest of the argument, and it will appeal to judges whose interpretive methods are shifting to textualism. Nevertheless, lawyers should employ other methods when able. “If you have a killer piece of legislative history, use it,” Judge Nalbandian advised. There are levels to legislative history, some more persuasive than others. It is crucial to determine how much certain methods will further your case and how legitimate those interpretations will be to the court. Nevertheless, simply because judges may weigh one method more than another does not mean litigators should limit their arguments.
The second prong of Judge Nalbandian’s argument as to why we are in a new era of litigation is the new technology available to aid lawyers in crafting their approach. He offered the example of corpus linguistics, a method by which lawyers can employ large collections of machine-readable writings from the time of a text’s enactment to discover the original public meaning of its words. In addition to its occasional evidentiary use, it can be used as a marketing tool for gaining and keeping clients. An increasing number of firms, particularly small and mid-sized ones, are focusing more on business development and client relations than in years past. Litigation analytics is a real, tangible way to demonstrate to a client their chances of success. If nothing more, Judge Nalbandian says that it is at least a way of “wooing” your client because of its innovative features.
The combined effects of a transformation in the nation’s judicial landscape and the new technological resources available to litigators has led to a new era of litigation. The influx of new federal judges will likely continue the shift in judicial interpretation with a heavier focus on textualism—a consideration lawyers will need to take into account for statutory analysis purposes. The availability of new technology like corpus linguistics provides a new source of evidentiary support, as well as a way to strengthen client outreach.
After concluding his recommendations to students for adapting to these changes in their future careers, Judge Nalbandian said he planned to visit with friends on faculty before heading back to Kentucky. One more personal tip he offered students was to go to class reunions. Not only will you reconnect with former classmates and professors—you’ll also get the chance to pick up some Bodo’s on the way.
---
cmk3xt@virginia.edu