ARTICLES It`s Not About the Money

ARTICLES
It’s Not About the Money:
THE ROLE OF PREFERENCES, COGNITIVE BIASES,
AND HEURISTICS AMONG PROFESSIONAL ATHLETES
Michael A. McCann†
I.
INTRODUCTION
Professional athletes are often regarded as selfish,
greedy, and out-of-touch with regular people. They hire agents
who are vilified for negotiating employment contracts that
occasionally yield compensation in excess of national gross
domestic products.1 Professional athletes are thus commonly
assumed to most value economic remuneration, rather than the
“love of the game” or some other intangible, romanticized
inclination.
Lending credibility to this intuition is the rational actor
model; a law and economic precept which presupposes that
when individuals are presented with a set of choices, they
rationally weigh costs and benefits, and select the course of
†
Assistant Professor of Law, Mississippi College School of Law; LL.M.,
Harvard Law School; J.D., University of Virginia School of Law; B.A., Georgetown
University.
Prior to becoming a law professor, the author was a Visiting
Scholar/Researcher at Harvard Law School and a member of the legal team for former
Ohio State football player Maurice Clarett in his lawsuit against the National Football
League and its age limit (Clarett v. Nat’l Football League, 369 F.3d 124 (2d Cir. 2004),
cert. denied, 125 S. Ct. 1728 (Apr. 4, 2005)). The author wishes to thank Paul Weiler
and Stephen Greyser for their insight and inspiration and Russell Korobkin, Jeffrey
Rachlinski, Nancy Levit, Donald Langevoort, William Li, and Bryan Stroh for their
thoughtful comments on an earlier draft.
1
In the extreme example, consider the ten-year, $252 million contract Alex
Rodriguez signed with the Texas Rangers in 2002. $252 million represents eleven
times the value of North Korea’s Gross Domestic Product. See John Blanchette, But
It’s Baseball That Is the Real Loser in This Absurd Deal, SPOKESMAN REV., Dec. 12,
2000, at C1.
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action that maximizes their wealth, happiness, or satisfaction.2
Since athletes are generally presumed to most value financial
compensation, they simply behave “rationally” by selecting the
most lucrative offer.
Intriguingly, however, for every apparent athletic
mercenary, there appear to be many who significantly discount
financial compensation. Indeed, for a variety of expressed
motivations, professional athletes regularly select the nonoptimal contract offer, at least in the traditional sense of
optimality. Risk aversion and other deliberative strategies
occasionally provide an explanation, but more often, the reason
lies in intangibles, such as loyalty, regional affinity, weather
preferences, familiarity with certain teammates or coaches,
prospects for team success, and demographic traits.
A law and economic explanation for such behavior
would illuminate the ranking of alternative preferences, and
then, as reflected by choice, a maximization of such ranking.
Put differently, by accepting a less remunerative offer,
professional athletes may consciously substitute subjective
value for objective value, and their choice simply reflects that
which makes them most happy.
Though diagrammatic in many instances, preferences
may not universally explain decision-making among
professional athletes. Indeed, like all individuals, professional
athletes appear vulnerable to cognitive biases, which are
subconscious
mental errors
triggered
by
simplified
informational processes, and heuristics, which are convenient,
if unfinished predictive cues. Though cognitive biases and
heuristics enable individuals to manage a complex array of
stimuli, they often distort preferences and adversely affect
decision-making. For instance, because of confirmation bias,
individuals are subject to ignore or discount information that
challenges existing beliefs. Alternatively, optimism bias leads
individuals to assume that general risks do not apply with
equal force to themselves.
In the context of professional sports, these and other
cognitive distortions may impair not only the pursuit of
objective value, but also rational assessment of subjective
value. This is especially true when teams adroitly manipulate
distortions, such as impressing illusory variances among
2
See Peter A. Alces, “If You Don’t Have Anything Good to Say . . . .,” 15
BANKR. DEV. J. 383, 409, 411-12 (1999) (reviewing KAREN GROSS, FAILURE AND
FORGIVENESS: REBALANCING THE BANKRUPTCY SYSTEM (1997)).
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PROFESSIONAL ATHLETES
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themselves and other teams. Accordingly, when accepting a
less remunerative offer, professional athletes may have
unknowingly misinterpreted their preferences and rankings.
To date, no published analysis has addressed the
potential influence of behavioral tendencies on professional
athletes in contemplation of contract offers. Perhaps this is not
surprising, given the relative paucity of professional athletes
among the general population, their presumptively unique
modes of employment, and a general aversion among
academics to the study of sports.
A more scrupulous
assessment of professional athletes, however, suggests a
uniquely desirable group for examination. Indeed, aside from
their striking influence on the world and economy around
them, professional athletes, unlike most groups commonly
studied by academics, furnish published commentary of their
thought processes, typically through newspaper, television, and
radio interviews. Accordingly, professional athletes offer a
wealth of narration as to their values, beliefs, and priorities,
and, equally important, such narration occurs in real world
settings, rather than in experimental circumstances. Along
those lines, by evading the alleged “experimental flaw” of many
behavioral law and economic studies, analysis of decisionmaking among professional athletes may prove extraordinarily
salient in the broader discussion of behavioral sciences and
their influence on traditional law and economics.
In pursuit of the above phenomena, this Article will
begin by exploring the rational actor model and how
individuals utilize preferences in determining their optimal
choice. This Article will then discuss limitations to the rational
actor model, namely the role of cognitive biases and heuristics.
Thereafter, this Article will canvass decision-making among
professional athletes in contemplation of contract offers. In
that regard, this Article will examine why some professional
athletes pursue the most lucrative offer, while others do not,
and to what extent cognitive biases and heuristics influence
their decision-making.
This Article will conclude by
highlighting implications for professional sports and proposing
recommendations for further analysis by economists,
psychologists, and legal academics.
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II.
EXPLORING THE RATIONAL ACTOR MODEL IN
BEHAVIORAL ECONOMICS
A.
Choice and Utility Among Rational Actors
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In assessing explanations for why individuals choose
one option over another, many theories have emerged. In the
context of economic activity, the rational choice theory has
received particular praise for its alleged ability to predict
human behavior.3 It posits that individuals are selfish actors
who seek maximum utility, and when presented with a set of
alternatives, select the alternative offering greatest utility.4
Utility may embody objective ends, such as material wealth or
tangible property.5 It may also comprise subjective goals, such
as happiness or satisfaction.6 Irrespective of its characteristics,
utility is thought to demand a set of preferences that
encourages a particular behavior, namely the satisfaction of
utility-driven preferences in the most efficient manner.7 Put
differently, “rationality” consists of pursuing preferences at
minimal cost.8
While in search of maximum utility, rational actors are
presumed to embody only “selfish” interests.9 Rational choice
theorists contend that pursuit of selfish interests promotes
cooperation with other persons. Such a contention is partly
deduced from the scholarship of Robert Axelrod, who, in The
3
See, e.g., Mark R. Brown, Deterring Bully Government: A Sovereign
Dilemma, 76 TUL. L. REV. 149, 160 n.59 (2001); Ronald A. Cass, Economics and
International Law, 29 N.Y.U. J. INT’L L. & POL. 473, 509 n.114 (1997); Richard H.
Pildes, The Destruction of Social Capital Through Law, 144 U. PA. L. REV. 2055, 2061
(1996).
4
See Alces, supra note 2, at 412.
5
See Alice G. Abreu, Taxes, Power, and Personal Autonomy, 33 SAN DIEGO
L. REV. 1, 28 n.64 (1996) (noting that when economists refer to “maximizing utility,”
they typically equate utility with material wealth).
6
See Jeanne L. Schroeder, The End of the Market: A Psychoanalysis of Law
and Economics, 112 HARV. L. REV. 483, 513 n.103 (describing traditional law and
economic metric of utility as a measure of happiness); see also Steven P. Croley & Jon
D. Hanson, The Nonpecuniary Costs of Accidents: Pain-and-Suffering Damages in Tort
Law, 108 HARV. L. REV. 1785, 1794-96 (1995) (discussing concept of satisfaction as an
economic metric).
7
See W. Bradley Wendel, Mixed Signals: Rational-Choice Theories of Social
Norms and the Pragmatics of Explanation, 77 IND. L.J. 1, 8 (2002).
8
See JON ELSTER, THE CEMENT OF SOCIETY: A STUDY OF SOCIAL ORDER 1112 (1989).
9
See Pamela H. Bucy, Games and Stories: Game Theory and the Civil False
Claims Act, 31 FLA. ST. U. L. REV. 603, 625 (2004); see also Neil S. Siegel, Sen and the
Hart of Jurisprudence: A Critique of the Economic Analysis of Judicial Behavior, 87
CAL. L. REV. 1581, 1583-85 (1999) (discussing self-interest among legal actors).
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Evolution of Cooperation, concludes that humans interact
optimally when their choices depend upon relative
cooperativeness, patience, and egocentricity.10 Thus, rather
than for the promotion of societal objectives, laws and
normative aspirations are thought to emerge only to facilitate
self-interested parties in achieving maximum utility.11
Naturally, a purely self-interested pursuit might render
individuals predictable, since it would signal anticipated
responses to incentives and other external influences.12 This is
particularly true if, as rational choice theorists contend,
preferences are “ranked, continuous, and stable.”13 Indeed, the
presumption of stable preferences buttresses the very use and
measurability of rational choice analysis; without such
stability, it would be difficult, if not impossible, to determine
whether a particular choice represents accordance with
preferences, change in preferences, or simply disregard of
preferences.14
A methodological preference among rational choice
theorists for equating “utility” with monetary wealth signifies
Such
another component of rational choice analysis.15
preference enables legal economists to cultivate a more
quantifiable framework,16 while also complying with traditional
economic assessment of behavioral success by level of
10
See ROBERT AXELROD, THE EVOLUTION OF COOPERATION 31-33 (1984) (on
file with author).
11
See Robert Sugden, Contractarianism and Norms, 100 ETHICS 768, 786
(1990); see also AXELROD, supra note 10, at 6-8 (examining role of aspirations in pursuit
of utility).
12
See Jonathan R. Macey, Competing Economic Views of the Constitution, 56
GEO. WASH. L. REV. 50, 54 (1987).
13
Tanina Rostain, Educating Homo Economicus: Cautionary Notes on the
New Behavioral Law and Economics Movement, 34 LAW & SOC’Y REV. 973, 976-77
(2000). Contra DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE
THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE 17-19 (1994) (finding that
it may be impossible to determine whether a changed decision over time reflects a
violation of the rationality criteria or a change in preferences).
14
See Rostain, supra note 13, at 977.
15
See Wendel, supra note 7, at 8 (noting that rational choice theory might be
objectionable because of its overriding concern with wealth maximization); see also
Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the
Rationality Assumption from Law and Economics, 88 CAL. L. REV. 1051, 1066 (2000)
(concluding that monetary accumulation is typically cited as the underlying motivation
for rational actors).
16
Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The
Problem of Market Manipulation, 74 N.Y.U. L. REV. 630, 641 n.31 (1999) [hereinafter
Hanson & Kysar, The Problem of Market Manipulation].
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accumulated resources.17 It also, by implication, engenders a
normative ethic whereby “it is normal—and hence
appropriate—for people to pursue monetary wealth” and to
measure the achievement of others by their extent of financial
Put differently then, rational choice theorists
wealth.18
generally assume that “rational actors will seek to gratify
fundamental biological drives and, in a market economy, to
accumulate monetary wealth.”19
Nevertheless, “utility” need not equate to monetary
wealth in order to accommodate rational choice analysis.
Indeed, though less preferred for purposes of rational choice
analysis, individuals may place material value in measurable,
but non-monetary forms of “wealth,” such as proximity to
family or professional title.20 Similarly, individuals may value
intangible wealth, such as perceived prestige or sense of
fairness,21 and yet still engage in rational analysis.22 In other
words, rational decision-making need not comprise the pursuit
of maximum monetary wealth, but only that personal
preferences are discernibly ranked and pursued accordingly.23
B.
Application of Rational Choice Theory to Behavioral
Relationships
Legal scholars have applied rational choice theory to
human behavior in specific and relatively familiar settings.
17
See David R. Lagasse, Undue Influence: Corporate Political Speech, Power
and the Initiative Process, 61 BROOK. L. REV. 1347, 1370 (1995) (explaining traditional
economic reliance on monetary gains and losses when evaluating micro-economic
behavior).
18
Avery Wiener Katz, Positivism and the Separation of Law and Economics,
94 MICH. L. REV. 2229, 2243 (1996).
19
Mark C. Suchman, On Beyond Interest: Rational, Normative and Cognitive
Perspectives in the Social Scientific Study of Law, 1997 WIS. L. REV. 475, 478.
20
See, e.g., Russell Korobkin, Ranking Journals: Some Thoughts on Theory
and Methodology, 26 FLA. ST. U. L. REV. 851, 860-62 (1999) (noting that, because
student-run law reviews often select submissions in part based on the affiliation of the
author, law professors consider reputation of their affiliated school when choosing
between teaching offers).
21
See Daniel A. Farber, Toward a New Legal Realism, 68 U. CHI. L. REV.
279, 280 (2001) (reviewing BEHAVIORAL LAW AND ECONOMICS (Cass R. Sunstein ed.,
2000)).
22
Existence of these phenomena is manipulated by related actors, such as
employers, who “value prestige as an independent good because it closely relates to
individual self-esteem and employee morale.” Andrew Cowan, Scarlet Letters for
Corporations? Punishment by Publicity Under the New Sentencing Guidelines, 65 S.
CAL. L. REV. 2387, 2401 (1992).
23
See, e.g., Russell Korobkin, Aspirations and Settlement, 88 CORNELL L.
REV. 1, 7-10 (2002) [hereinafter Korobkin, Aspirations and Settlement].
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Perhaps best illustrating this scholarship is an analysis of
litigants and their relative assessment of settlement and
litigation.24 Litigants are said to value rational “aspirations,”
which pertain to an “ideal target settlement sum, or set of
terms,” and that guide litigants in negotiations.25 Conversely, a
litigant’s “reservation price” comprises the least optimal value
nevertheless sufficient for settlement. For plaintiffs, the
reservation price dictates the minimum amount worth
accepting, while for defendants, it refers to the maximum
The area between these two
amount worth paying.26
reservation prices comprises the “bargaining zone,” and when
the two parties fail to identify a figure within that zone,
adjudication results.27 Accordingly, rational choice theory
regards the achievement of settlement as entirely dependent
upon agreement to share wealth, thereby rendering immaterial
“blame” or feelings of “revenge” and “justice.”28 In essence,
then, bargaining between litigants resembles any other form of
bargaining between rational actors, and it is thus
fundamentally indistinguishable from a manufacturer and
supplier negotiating a sales contract or a sports team and
player negotiating an employment contract.
Of course, this rational approach to civil litigation
depends upon the ability of litigants to identify their
bargaining zone. Indeed, rational choice theory surmises that
litigants can determine the expected value of litigating, as well
as the difference in transaction costs between out-of-court
settlement and litigating.29 More concretely, as posited by
rational choice theory, litigants equate the expected value of
each prospective strategy to the probability of that strategy’s
24
Id. at 6 (describing the significance of rational choice theory in litigant
behavioral assumptions).
25
Id. at 3.
26
HOWARD RAIFFA, THE ART AND SCIENCE OF NEGOTIATION 45 (1982); G.
RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR
REASONABLE PEOPLE 27 (1999) (on file with author).
27
See John P. Gould, The Economics of Legal Conflicts, 2 J. LEGAL STUD. 279,
285 (1973); see also Steven Shavell, Alternative Dispute Resolution: An Economic
Analysis, 24 J. LEGAL STUD. 1, 11 (1995) (identifying that parties will not settle when
expected judgments exceed their expected costs).
28
See George L. Priest & Benjamin Klein, The Selection of Disputes for
Litigation, 13 J. LEGAL STUD. 1, 12-13 (1984); see also Robert G. Bone, Agreeing to Fair
Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L.
REV. 485, 520 (2003) (noting that scholars sometimes view settlement as “just a type of
ex ante agreement, one that is ex ante relative to the final judgment”).
29
Priest & Klein, supra note 28, at 12.
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success multiplied by its predictive monetary value.30 For
instance, a litigant might conclude that expending
extraordinary resources on discovery would increase the chance
of victory, and that the value generated from that option would
exceed the value generated by expending fewer resources on
discovery but with diminished probability of victory.31
In determining their bargaining zone, litigants—and
their attorneys—must also account for rational choice decisionmaking among judges.
Indeed, rational choice theorists
surmise that trial judges consider the probability of reversal
whenever ranking their preferences for case disposition.32
Thus, in its application to litigant behavior, rational choice
theory demands expansive knowledge from litigants in order to
devise informed preferences.33
Although application of rational choice theory most
often concerns the pursuit of monetary wealth, “utility,” as
noted in the preceding subsection, need not equate to monetary
wealth.34 Indeed, individuals might place material value in
measurable, but non-monetary characteristics, or intangible
characteristics.35 Accordingly, rational decision-makers may
rank preferences in line with non-monetary objectives, thus
generating choices that optimally reflect those non-monetary
preferences.
To illustrate these “other” forms of utility, consider
application of rational choice theory to decision-making among
public actors. For instance, rational choice theory assumes
30
See generally ROBERT G. BONE, CIVIL PROCEDURE: THE ECONOMICS OF
CIVIL PROCEDURE 20-40 (2003) (explaining how parties can use high discovery
strategically to force settlements). Thus, in practice, both litigants will value litigation
based on the weighted average value of all potential outcomes. See Korobkin,
Aspirations and Settlement, supra note 23, at 7 (analyzing conclusions of Priest &
Klein, supra note 28, at 29-30).
31
See David Rosenberg, Mass Tort Class Actions: What Defendants Have and
Plaintiffs Don’t, 37 HARV. J. ON LEGIS. 393, 407 n.35 (2000) (discussing “real world
assumptions” about the relationship between investment in discovery and probability
of success in litigation); see also ROBERT COOTER & THOMAS ULEN, LAW AND
ECONOMICS 55-70 (1988) (discussing the theory of rational choice and expected
monetary value); Shavell, supra note 27, at 11 (illuminating predictive roles of cost and
benefit expectations among plaintiffs and defendants).
32
See Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals,
91 CAL. L. REV. 1457, 1483 (2003). The idea of “rational” decision-making by judges
has received substantial critique in recent years. See generally Siegel, supra note 9
(arguing that economic models fail to provide an accurate explanation of judicial
decision-making).
33
See Korobkin, Aspirations and Settlement, supra note 23, at 7-9.
34
See discussion supra p. 1464.
35
See id.
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that elected officials and, more broadly, those drawn to politics,
place greatest value in amassing power.36 Consequently,
political actors appear less interested in monetary wealth than
is traditionally assumed by rational choice theory.37 Similar
deductions have been made of government attorneys, whose
primary self-interest, be it apparent power or civic duty,
appears distinct from that of attorneys engaged in private
practice.38
The utility of these concepts can be further illustrated
by observing the American workforce and opportunities for
employment change. Indeed, studies find that when workers
anticipate an increase in either respect for their labor or
positive feelings of camaraderie, they tend to evince diminished
demand for tangible compensation.39 Alternatively constructed,
by merely accepting an offer that features less monetary
compensation than another offer, an individual implicitly
posits a higher actual value from the chosen offer.40 This
phenomenon is sometimes apparent when law firm partners
have opportunities to become judges or law professors.
Although such positions typically pay less in terms of monetary
compensation, their relatively high prestige and potential for
36
James R. Buckley, The Political Economy of Superfund Implementation, 59
S. CAL. L. REV. 875, 889 (1986) (concluding that “maximum wealth” for political actors
includes power and job security).
37
Less admirably, rational choice theory also assumes that those drawn to
politics are more interested in power than constituent representation or society’s best
interests. See MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON
ESTABLISHMENT (1977). But see Daniel Shaviro, Beyond Public Choice and Public
Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the
1980s, 139 U. PA. L. REV. 1, 66 & n.303 (dismissing analysis that concludes that
politicians are “for sale” as inconsistent with the history of tax law promulgation).
38
See Edward Brunet, Class Action Objectors: Extortionist Free Riders or
Fairness Guarantors, 2003 U. CHI. LEGAL F. 403, 454-56 (describing unique incentives
and motivations of government attorneys); see also Jonathan R. Macey & Geoffrey P.
Miller, Reflections on Professional Responsibility in a Regulatory State, 63 GEO. WASH.
L. REV. 1105, 1115-18 (1995) (reasoning that, due to an absence of private market
constraints, government attorneys are more likely to pursue self-interests than are
those attorneys engaged in private practice).
39
Katherine K. Yunker, Addressing the Real Problems for Law and
Economics of Factoring Interest Rates, Earnings Growth and Inflation into Awards for
Lost Future Earnings, 56 U. PITT. L. REV. 1, 23 n.57 (1994).
40
See Saul Levmore, Self-Assessed Valuation Systems for Tort and Other
Law, 68 VA. L. REV. 771, 802 (1982) (“By accepting a low paying job in lieu of a higher
paying one, an individual demonstrates that the total returns from the chosen
position—monetary and nonmonetary—are valued more than those from the job not
taken.”). But see discussion of cognitive biases infra Part III.A.
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intellectual flexibility often induce law firm partners into
concluding that they are superior positions.41
Neoclassical theory offers a useful corollary to
employment opportunities in rational choice models.
It
suggests that workers select employment opportunities that
offer “preference-maximizing packages” of compensation,
working conditions, and subjective characteristics.42 Similarly,
neoclassical theory finds that individuals order their
preferences depending upon value assessed to each
preference.43 To illustrate, consider that when workers may
determine their own hours of work before a change in wage
rates, they often adjust their work hours to reflect their
preferences for work and leisure.44 Accordingly, neoclassical
theory reaffirms predictive characteristics apparent in the
application of rational choice theory.
III.
RETHINKING RATIONAL CHOICE DECISION-MAKING
A.
Raising Doubts: Cognitive Biases
Superficially, rational choice theory furnishes a useful
tool for assessing why individuals make certain decisions.
Upon further reflection, however, it appears limited by
cognitive biases, which are subconscious mental processes that
impair rational thought-processes and ultimately lead to
“irrational” choices. Such biases are prevalent among all
41
See Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and
Indeterminacy in Substantive Review of Administrative Decisions, 44 DUKE L.J. 1051,
1055 (1995) (noting that attorneys are often attracted to the position of judge because
of its prestige and esteem); see also Kenneth F. Ripple, The Role of the Law Review in
the Tradition of Judicial Scholarship, 57 N.Y.U. ANN. SURV. AM. L. 429, 434 (2000)
(citing remarks by Justice Cardozo concerning the gradual rise in prestige of law
professors in the legal world). But see Richard A. Posner, Florida 2000: A Legal and
Statistical Analysis of the Election Deadlock and the Ensuing Litigation, 2000 SUP. CT.
REV. 1, 54 (wondering whether judges “exaggerate the value of their prestige to
society”). Some positions, of course, offer both maximum prestige and financial
recompense. See A. Mechele Dickerson, A Behavioral Approach to Analyzing Corporate
Failures, 38 WAKE FOREST L. REV. 1, 23 (2003) (noting that corporate directors often
cite prestige and status associated with their occupation as meaningful).
42
Mark Barenberg, Democracy and Domination in the Law of Workplace
Cooperation: From Bureaucratic to Flexible Production, 94 COLUM. L. REV. 753, 828
(1994).
43
See Ignacio de León, A Neo-Institutional Analysis of Vertical Integration
and Its Implications for Antitrust Enforcement in Developing Countries, 26 BROOK. J.
INT’L L. 251, 282 (2000).
44
Philip Harvey, Combating Joblessness: An Analysis of the Principal
Strategies that Have Influenced the Development of American Employment and Social
Welfare Law During the 20th Century, 21 BERKELEY J. EMP. & LAB. L. 677, 721 (2000).
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persons, and by simplifying the processing of information, often
induce mental errors in deliberation of choice.45 To illustrate
cognitive biases, consider that when individuals contemplate
choice, many unknowingly distort the degree of risk or only
selectively remember pertinent information.46 Furthermore,
cognitive biases are distinct from other forms of biases (e.g.,
self-interest; ethnic or gender prejudice), as well as intellectual
predispositions toward certain conclusions (e.g., conclusory
analysis). Instead, they reflect subliminal mental procedures
for processing information.
Since 1955, the role of cognitive biases in decisionmaking processes has intrigued behavioral psychologists. In
that year, Herbert Simon published A Behavioral Model of
Rational Choice, which proposed “replac[ing] the global
rationality of economic man with a” model inclusive of “the
computational capacities that are actually possessed by
organisms, including man, in the kinds of environments in
which such organisms exist.”47 Since that time, economists,
legal scholars, and psychologists have evaluated the
desirability of utilizing cognitive bias analysis in adjusting
expectations for human behavior. Such analysis has proven
useful beyond the academic setting as well. For instance,
businesses routinely adjust marketing and client practices to
accommodate for cognitive biases among customers and
Likewise, policy analysts often qualify
consumers.48
recommendations to account for potential biases among
affected groups.49
45
See generally RICHARDS J. HEUER, JR., PSYCHOLOGY OF INTELLIGENCE
ANALYSIS (1999) (observing effects of cognitive biases on decision-makers); Christine
Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471
(1998).
46
See generally Michelle G. Craske & Deborah C. Pontillo, Cognitive Biases
in Anxiety Disorders and Their Effect on Cognitive-Behavioral Treatment, 65 BULL.
MENNINGER CLINIC 58 (2001).
47
See Herbert A. Simon, A Behavioral Model of Rational Choice, 69 Q. J.
ECON. 99, 99 (1955).
48
See, e.g., MARKET PSYCHOL. CONSULTING, Money and Investing Personality
Test,
http://www.marketpsych.com/simulations.php (last visited Jan. 4, 2006)
(detailing how cognitive biases elicited from client bases can be exploited to generate
profits).
49
See, e.g., Josh Kerbel (analyst in the Strategic Assessments Group in the
Directorate of Intelligence), Thinking Straight: Cognitive Bias in the U.S. Debate About
China, 48 STUD. IN INTELLIGENCE 1 (official journal of the Central Intelligence Agency)
(2004), available at http://www.cia.gov/csi/studies/vol48no3/article03.html (discussing
role of cognitive biases in American perceptions of policy choices by China).
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Numerous studies have illustrated the role of cognitive
biases in decision-making processes. Perhaps most heralded,
consider the role of “framing effects” in shaping choice, and
how they diminish assumed rationality among actors. The
most notable such study was conducted by Daniel Kahneman
and Amos Tversky in 1984. It revealed how individuals
respond varyingly to two identical outcomes worded slightly
Specifically, the authors found that when
differently.50
individuals are presented with a hypothetical choice on how to
dispense finite medical care to 600 persons afflicted with a fatal
disease, with one choice resulting in 200 people being saved,
and the other resulting in 400 people dying, they are less likely
to endorse a policy where “400 people will die” than one where
“200 people will be saved.”51 Such a conclusion contradicts the
rational choice model, since a rational actor would make the
same choice regardless of its description.52 Framing effects of
these kinds have been found in other settings as well, and they
diminish the certainty of rational choice predictions.53 Along
those lines, framing effects belie the rational choice assumption
that choices reflect a maximization of utility or relative
strength of preferences, as such choices instead appear
modifiable by unappreciated factors, such as wording of
questions and other circumstances.54
Similarly, consider the effect of confirmation bias,
whereby individuals are subject to ignore or discount
information that challenges existing beliefs.55 Confirmation
bias is especially prevalent among those who are overconfident,
50
See Daniel Kahneman & Amos Tversky, Choices, Values, and Frames, 39
AM. PSYCHOLOGIST 341, 343 (1984).
51
Id.
52
See David A. Hoffman & Michael P. O’Shea, Can Law and Economics Be
Both Practical and Principled?, 53 ALA. L. REV. 335, 361 (2002) (describing how
rational actor theory presumes that individuals rank outcomes with identical outcomes
as equal, and thus would not prefer one option over the other).
53
See Hanson & Kysar, The Problem of Market Manipulation, supra note 16,
at 644-46 (discussing use of framing effects by exploitative industry actors).
54
See Hoffman & O’Shea, supra note 52, at 361.
55
See Hanson & Kysar, The Problem of Market Manipulation, supra note 16,
at 647-50. A corollary to confirmation bias is “self-serving” or “egocentric” biases,
whereby individuals “interpret information in a way that disproportionately favors
their own position.” Unlike confirmation bias, however, self-serving or egocentric biases
are likely consciously present. Chris Guthrie, Framing Frivolous Litigation: A
Psychological Theory, 67 U. CHI. L. REV. 163, 206 n.199 (2000) [hereinafter Guthrie,
Framing Frivolous Litigation] (noting that these biases may increase plaintiffs’ risk in
seeking frivolous litigation). See generally Linda Babcock & George Loewenstein,
Explaining Bargaining Impasse: The Role of Self-Serving Biases, 11 J. ECON. PERSP.
109 (1997) (discussing the impact of self-serving biases on settlements).
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and it frequently leads to “irrational” decision-making.56 For
instance, when business or policy managers discuss strategic
planning, they often avoid consideration of worst-case
scenarios, as well as refrain from consulting with “Devil’s
advocates” among their group of advisors.57 Confirmation bias
also affects how employers regard individual employees.
Indeed, as soon as a manager develops reservations about an
employee’s competence, the manager often becomes prone to
negatively interpret confusing or ambiguous circumstances
concerning that employee, while attributing positives
circumstances to luck, coincidence, or someone else’s
Also consider confirmation bias in the law
assistance.58
enforcement setting: When police investigators believe they
have identified the guilty party within a police lineup, they
tend to ask eyewitnesses specifically about that person while
not asking those same questions about others in the lineup.59
Optimism bias has likewise received scholarly attention
as disturbing traditional assumptions among rational choice
theorists. The concept posits that individuals assume that
general risks “do not apply with equal force to themselves.”60
Put differently, optimism bias is “the belief that good things
are more likely than average to happen to us and bad things
56
See John Kelly, Putting Investors on the Couch; With Equity Prices Having
Fallen, Now Would Be a Good Time for Investors to Reappraise Their Portfolios, but
Why Are So Few Actually Doing So?, INVESTMENT ADVISER, Mar. 24, 2003, available at
www.lexis.com (search “News, All (English, Full Text)” for full title in quotes) (noting
need for investment advisors to counter confirmation biases particularly among those
overconfident investors).
57
See Lynne L. Dallas, The New Managerialism and Diversity on Corporate
Boards of Directors, 76 TUL. L. REV. 1363, 1394 n.146 (2002).
58
Jean-Louis Barsoux & Jean-Francois Manzoni, The Downward Spiral, FIN.
TIMES, Nov. 15, 2002, at 6.
59
See Gary L. Wells & Eric P. Seelau, Eyewitness Identification:
Psychological Research and Legal Policy on Lineups, 1 PSYCHOL. PUB. POL’Y & L. 765,
767 (1995). Academic studies present another area where confirmation biases often
emerge, as researchers tend to discount conflicting data discovered after conclusions
have been made. See Richard E. Petty & John T. Cacioppo, Addressing Disturbing and
Disturbed Consumer Behavior: Is It Necessary to Change the Way We Conduct
Behavioral Science?, 33 J. MKTG. RES. 1, 5 (1996); see also Hans Baumgartner, On the
Utility of Consumers’ Theories in Judgments of Covariation, 21 J. CONSUMER RES. 634,
638 (1995) (discussing existence of confirmation bias during process of data sampling
by academic researchers).
60
Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: Some
Evidence of Market Manipulation, 112 HARV. L. REV. 1420, 1511 (1999) [hereinafter
Hanson & Kysar, Some Evidence of Market Manipulation]; see Melvin Aron Eisenberg,
The Limits of Cognition and the Limits of Contract, 47 STAN. L. REV. 211, 216 (1995)
(finding that “as a systematic matter, people are unrealistically optimistic”).
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Most
are less likely than average to happen to us.”61
illustratively, because of optimism bias, the average American
estimates a one in five chance of personally being the victim of
a non-terrorist violent crime, yet believes that the average
American has about a two in five chance of being one.62
Alternatively, consider that smokers are inclined to perceive
smoking as significantly less risky for themselves than for
other smokers.63 Indeed, optimism bias tends to flourish when
risks are long-term, or are presumed modifiable through
behavior.64 For that reason, when consumers assume that
signs of toxicity will appear early in product usage, they tend to
then assume that an absence of such signs foretells exemption
from future risk.65
Individuals are also distracted by irrelevant third
options when making decisions. These options most often
emerge in the consumer context. For instance, automobile
manufacturers routinely make a particular model “appear less
expensive by adding a higher-priced option to the product
line.”66 Similarly, manufacturers of “risky” products, such as
unfiltered cigarettes or untested dietary supplements, tend to
61
Korobkin & Ulen, supra note 15, at 1091.
See Neal R. Feigenson, Emotions, Risk Perceptions and Blaming in 9/11
Cases, 68 BROOK. L. REV. 959, 981 n.82 (2003) (citing Jennifer S. Lerner et al., Effects
of Fear and Anger on Perceived Risks of Terrorism: A National Field Experiment, 14
PSYCHOL.
SCI.
144,
149
(2003),
available
at
http://www.hss.cmu.edu/
departments/sds/faculty/Lerner/EffectsOfFearAndAngerOnPerc.pdf.
63
See William B. Hansen & C. Kevin Malotte, Perceived Personal Immunity:
The Development of Beliefs About Susceptibility to the Consequences of Smoking, 15
PREVENTIVE MED. 363, 370-71 (1986); see also Suzanne C. Segerstrom et al., Optimistic
Bias Among Cigarette Smokers, 23 J. APPLIED SOC. PSYCHOL. 1606, 1614-17 (1993).
But see W. Kip Viscusi, Constructive Cigarette Regulation, 47 DUKE L.J. 1095, 1113-14
(1998) (presenting evidence that optimism bias is unsupported in the context of
cigarette smoking, as “research on adolescents fails to indicate any significant
difference between risks to oneself and one’s peers”).
64
See Hanson & Kysar, The Problem of Market Manipulation, supra note 16,
at 657 & nn.106-09; see also Neil D. Weinstein, Unrealistic Optimism About Future Life
Events, 39 J. PERSONALITY & SOC. PSYCHOL. 806, 806 (1980) (presenting evidence that
individuals ascribe to “unrealistic optimism”).
65
Paul Slovic, Do Adolescent Smokers Know the Risks?, 47 DUKE L.J. 1133,
1137 (1998). Along those lines, optimism bias may prove most pronounced among
children smokers, who often rate their own chances of contracting lung disease as
nearly identical to those of non-smokers. See Jonathan D. Reppucci et al., Unrealistic
Optimism Among Adolescent Smokers and Nonsmokers, 11 J. PRIMARY PREVENTION
227, 235 (1991); see also Michael A. McCann, Dietary Supplement Labeling: Cognitive
Biases, Market Manipulation & Consumer Choice, 31 AM. J.L. & MED. 215, 223-27
(2005) [hereinafter McCann, Dietary Supplement Labeling] (discussing optimism bias
among consumers of dietary supplements and how supplement manufacturers may
exploit such a bias).
66
Hanson & Kysar, Some Evidence of Market Manipulation, supra note 60,
at 1440 (discussing irrelevant third options in context of used car sales).
62
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adroitly frame the choice between something dangerous (e.g.,
regular
cigarettes;
supplements
containing
ephedra),
something much less risky (e.g., “unfiltered cigarettes”;
“ephedra-free supplements”), and no action at all. In doing so,
they encourage continued usage from would-be quitters, as the
individual becomes biased in favor of options that he originally
disfavored.67
Also consider the salience of irrelevant third options in
disturbing the presumed stability of ranked preferences within
the rational actor model. For instance, when an individual is
presented with a small or large box of popcorn, she might
choose the small. That same consumer, however, would more
likely choose the large box when also presented with the option
of an extra large box.68 As noted by Richard Thaler, if actors
were entirely rational in their deliberation of choice, and thus
possessed stable options, then the presence of an extraneous
choice, like an extra large box, would not affect the choice
between a small and large box.69 Yet it does.70
Informational deficiencies and time constraints likewise
inhibit strategic and rational decision-making, and they
encourage individuals to make inferences from small sample
sizes. For instance, law enforcement officers, who are uniquely
taxed for time and expected to promptly solve cases, regularly
make conclusive judgments of guilt on the basis of only one or
two witness interviews.71 Similarly, consider trial judges, who,
in contemplating judgment, often consider the probability of
Rational actor analysis maintains that such
appeal.72
consideration should compel judges to rank potential outcomes
(e.g., appellate reversal; appellate remand) associated with
67
Id. at 1515 (discussing irrelevant third options in context of cigarettes); see
also McCann, Dietary Supplement Labeling, supra note 65, at 224 & 226 (discussing
irrelevant third options in the context of dietary supplements).
68
Daniel T. Ostas, Deconstructing Corporate Social Responsibility: Insights
from Legal and Economic Theory, 38 AM. BUS. L.J. 261, 294 (2001).
69
See generally RICHARD H. THALER, QUASI RATIONAL ECONOMICS 42 (1991).
70
Ostas, supra note 68, at 294. See Roger Mason, Interpersonal Effects on
Consumer Demand in Economic Theory and Marketing Thought, 1890-1950, 25 J.
ECON. ISSUES 871 (1995) (finding that marketing schemes often construct, rather than
react to consumer interests).
71
See Wells & Seelau, supra note 59, at 767 (explaining how law enforcement
officers tend to make “strong judgments of validity on the basis of only one
eyewitness”); see also Robert A. Prentice, Chicago Man, K-T Man, and the Future of
Behavioral Law and Economics, 56 VAND. L. REV. 1663, 1709-10 (2003) (assessing
cognitive biases experienced by witnesses while being interviewed by police).
72
See discussion supra p. 1465 and accompanying notes.
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possible trial choices (e.g., motion denied; motion sustained).73
Trial judges, however, often encounter time constraints, heavy
workloads, and uncertain information that may impair any
strategic value in pursuing these preferences.74 Legal scholars
have observed that in order for judges to accurately discount
the corresponding probability of reversal for each preference,
they would have to possess information concerning the
probability of appeal and settlement, as well as knowledge of
precise preferences embraced by the relevant appellant
judges.75 Thus, in the absence of such information, “rational”
decision-making appears more like guesswork and conjecture.
Cognitive biases may also affect retrospective
assessment of choice.
This is especially apparent with
hindsight bias, which refers to the tendency of individuals to
overestimate the extent to which they anticipated the fruition
of a particular event.76 Put differently, individuals often believe
that they knew something was going to happen when in fact
they did not.77 This phenomenon is especially apparent when
interviewing those prior and after a particular event. For
instance, when voters are asked to project the outcome of an
imminent election, and are later asked to remember their
choice, far more claim to have predicted the correct outcome
than actually did.78 Similarly, when individuals are asked to
73
See Christopher R. Drahozal, Judicial Incentives and the Appeals Process,
51 SMU L. REV. 469, 492 (1998).
74
Cross, supra note 32, at 1485; see also Susan P. Koniak & George M.
Cohen, Under Cloak of Settlement, 82 VA. L. REV. 1051, 1124-25 (1996) (describing
indifference of the public and politicians to insistence by trial judges of onerous
workloads and corresponding diminution of quality of judging); Jeffrey A. Parness &
Matthew R. Walker, Thinking Outside the Civil Case Box: Reformulating Pretrial
Conference Laws, 50 U. KAN. L. REV. 347, 363 (2002) (identifying time pressures as
observed by Judge Richard Posner).
75
See, e.g., Richard L. Revesz, Environmental Regulation, Ideology, and the
D.C. Circuit, 83 VA. L. REV. 1717, 1767-68 n.103 (1997) (describing immense complexity
of predicting reversals on statutory grounds); see also DAVID E. KLEIN, MAKING LAW IN
THE UNITED STATES COURTS OF APPEALS 14 (2002) (illuminating obstacles for trial
judges attempting to forecast probability of appeal success).
76
See W. Kip Viscusi, The Social Costs of Punitive Damages Against
Corporations in Environmental and Safety Torts, 87 GEO. L.J. 285, 328-29 (1998).
77
See, e.g., Scott A. Hawkins & Reid Hastie, Hindsight: Biased Judgments of
Past Events After the Outcomes Are Known, 107 PSYCHOL. BULL. 311, 311-12 (1990);
Baruch Fischhoff, Hindsight ≠ Foresight: The Effect of Outcome Knowledge on
Judgment Under Uncertainty, 1 J. EXPERIMENTAL PSYCHOL. HUM. PERCEPTION &
PERFORMANCE 288, 288 (1975) (first describing the effect).
78
Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in
Hindsight, 65 U. CHI. L. REV. 571, 577 (1998). Similar findings have pertained to
subjects who are asked to predict whether a business would be successful, with subjects
claiming “I predicted it” at a higher rate than actually did. Clifton E. Brown & Ira
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PROFESSIONAL ATHLETES
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predict whether a particular line of products will succeed, an
artificially high percentage will later claim to have identified
the correct outcome.79 Significantly, by distorting individuals’
capacity to objectively evaluate their decision-making and
pursuit of preferences, hindsight bias limits the potential for
ameliorative redress of any other cognitive biases.
Regret aversion, or the tendency to avoid feedback on
forgone conclusions, only exacerbates hindsight bias.80 Such
aversion encourages individuals to shield themselves from
discovering “what might have been” had they pursued
alternative choices.81 Individuals experiencing regret aversion
are similarly averse to comparisons with imagined outcomes,
which may likewise promote sadness or regret.82 Accordingly,
both hindsight bias and regret aversion discourage
retrospective analysis of decision-making. Empirical data
corroborates this idea. Indeed, regret aversion has been found
to influence consumer purchase decisions,83 investor
preferences,84 physician choice of care,85 and, most recently,
litigant behavior.86
Importantly, in light of the aforementioned cognitive
biases, ostensibly objective measures, such as “market value”
and “fair compensation,” may reflect irrational cognitive biases
Solomon, Effects of Outcome Information on Evaluations of Managerial Decisions, 62
ACCT. REV. 564, 568-75 (1987).
79
Brown & Solomon, supra note 78, at 570-73.
80
See Chris Guthrie, Better Settle Than Sorry: The Regret Aversion Theory of
Litigation Behavior, 1999 U. ILL. L. REV. 43, 43 [hereinafter Guthrie, Better Settle Than
Sorry].
81
See David S. Boninger, Faith Gleicher & Alan Strathman, Counterfactual
Thinking: From What Might Have Been to What May Be, 67 J. PERSONALITY & SOC.
PSYCHOL. 297, 297 (1994); see also Richard P. Larrick, Motivational Factors in Decision
Theories: The Role of Self-Protection, 113 PSYCHOL. BULL. 440, 445 (1993) (describing
behavioral predilections commonly associated with avoidance of risk).
82
See Guthrie, Better Settle Than Sorry, supra note 80, at 69-70 & n.133
(citing conclusions in Marcel Zeelenberg et al., Consequences of Regret Aversion: Effects
of Expected Feedback on Risky Decision Making, 65 ORGANIZATIONAL BEHAV. & HUM.
DECISION PROCESSES 148, 149 (1996)).
83
J. Jeffrey Inman & Leigh McAlister, Do Coupon Expiration Dates Affect
Consumer Behavior?, 31 J. MARKETING RES. 423, 423 (1994) (reasoning that
anticipated regret may account for the increase in consumer coupon redemption
behavior prior to coupon expiration dates).
84
Donald C. Langevoort, Selling Hope, Selling Risk: Some Lessons for Law
from Behavioral Economics About Stockbrokers and Sophisticated Customers, 84 CAL.
L. REV. 627, 652-53 (1996).
85
See Cheryl B. Travis et al., Judgment Heuristics and Medical Decisions, 13
PATIENT EDUC. & COUNSELING 211, 215 (1989) (proposing regret theory as one possible
explanation for clinical treatment decisions).
86
Guthrie, Better Settle Than Sorry, supra note 80, at 72-79.
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as much as any rational bargaining. As a result, individual
preferences may only partially account for market
determinations, such as the “going-rate” for a particular type of
worker (e.g., a talented chief executive officer; a 20-game
winner in Major League Baseball).87 Indeed, for that very
reason, Cass Sunstein maintains that rational choice models
are “often wrong in the simple sense that they yield inaccurate
predictions.”88 Similarly, Russell Korobkin and Thomas Ulen
find that “individuals are systematically biased in their
predictions of the probable results of various events89 . . . they
frequently act in ways that are incompatible with the
assumptions of rational choice theory.”90
B.
Raising Doubts: Heuristics
The failure of rational choice theory to absorb cognitive
biases invites discussion of further cognitive limitations,
namely human tendencies to incorporate rules of thumb into
their decision-making processes. These “rules of thumb” are
also known as heuristic devices or heuristics, which are
convenient, if unfinished methods to process information.91
Such devices emerge primarily because of processing devices
within the human brain that seek to conserve scarce
resources.92 These devices allow the brain to manage a complex
array of stimuli through shortcuts, largely based on predictive
probability.93
Heuristics, however, exhibit a tendency to encourage
decisions based on illusions, or distorted perceptions.94 For
instance, heuristics may lead individuals to exaggerate health
87
Hoffman & O’Shea, supra note 52, at 361.
Cass R. Sunstein, Behavioral Analysis of Law, 64 U. CHI. L. REV. 1175,
1175 (1997).
89
Korobkin & Ulen, supra note 15, at 1085.
90
Id. at 1055.
91
See Cass R. Sunstein, Introduction, in BEHAVIORAL LAW AND ECONOMICS 1,
3 (Cass R. Sunstein ed., 2000).
92
Jon Hanson & David Yosifon, The Situation: An Introduction to the
Situational Character, Critical Realism, Power Economics, and Deep Capture, 152 U.
PA. L. REV. 129, 137 (2003).
93
Jeffrey J. Rachlinski, Heuristics and Biases in the Courts: Ignorance or
Adaptation?, 79 OR. L. REV. 61, 61 (2000). See Samuel Issacharoff, The Content of Our
Casebooks: Why Do Cases Get Litigated?, 29 FLA. ST. U. L. REV. 1265, 1275 (2002)
(describing these phenomena in choices among individuals to seek litigation).
94
Rachlinski, supra note 93, at 61.
88
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PROFESSIONAL ATHLETES
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ailments,95 particularly when those individuals are unable to
measure the presence of actual risk.96 Moreover, the human
mind tends to minimize the role of complexifying context (e.g.,
background factors; situational pressures) and accentuate the
role of salient behavior (e.g., expressed words; physical
For that reason, individuals tend to
manifestations).97
attribute another person’s behavior to her own dispositional
qualities, rather than to circumstances or situational factors.98
The attribution of behavior to disposition rather than
circumstances is considered part of a broader defect called the
“fundamental attribution error,” and heuristics can evince its
effect.99
Heuristics can also adversely influence negotiations.
This is especially apparent with “anchoring and adjustment”
effects, whereby a negotiator begins with a presumptively
rational reference point, but then fails to adjust adequately for
new information.100 Psychologists sometimes describe this
effect as “belief perseverance,” or the tendency to cling to a
viewpoint in the face of disconfirming evidence.101 For instance,
a professional athlete negotiating a contract might estimate his
market value based on a contract earned by a similar player.102
He might then adjust that figure based on perceived variances
between himself and the similar player, such as age,
experience, and injury-history.103 Although such an approach
95
See Robert A. McNutt et al., Patient Safety Efforts Should Focus on
Medical Errors, 287 J. AM. MED. ASS’N 1997, 2001 (2002); see also Stephen B. Soumerai
et al., Effect of Local Medical Opinion Leaders on Quality of Care for Acute Myocardial
Infarction: A Randomized Controlled Trial, 279 J. AM. MED. ASS’N 1358, 1363 (1998)
(discussing the salience of heuristics in the context of acute myocardial infarctions).
96
See Sidney T. Bogardus, Jr., Eric Holmboe & James F. Jekel, Perils,
Pitfalls, and Possibilities in Talking About Medical Risk, 281 J. AM. MED. ASS’N 1037,
1041 (1999) (noting that people frequently utilize heuristic guides to counter difficulties
in understanding risk).
97
See Hanson & Yosifon, supra note 92, at 137.
98
See SUSAN T. FISKE & SHELLEY E. TAYLOR, SOCIAL COGNITION 67-86 (2d ed.
1991).
99
For an extensive analysis of the fundamental attribution error, see Jon
Hanson & David Yosifon, The Situational Character: A Critical Realist Perspective on
the Human Animal, 93 GEO. L.J. 1 (2004).
100
Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty:
Heuristics and Biases, 185 SCIENCE 1124, 1128 (1974).
101
See Hanson & Kysar, The Problem of Market Manipulation, supra note 16,
at 652-53.
102
See Donald Fehr, Union Views Concerning Agents: With Commentary on
the Present Situation in Major League Baseball, 4 MARQ. SPORTS L.J. 71, 79 (1993).
103
See Michael A. McCann, Illegal Defense: The Irrational Economics of
Banning High School Players from the NBA Draft, 3 VA. SPORTS & ENT. L.J. 113, 169-
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might appear sensible, studies find that individuals often fail
to adjust sufficiently away from the initial anchor.104 Indeed,
even in the absence of anchor-affirming information,
individuals exhibit a natural reluctance to alter anchors.105
Consequently, the professional athlete might modify the
anchor, but in a way that insufficiently reflects actual
variations between himself and the similar player. Such
phenomena are notable in other fields as well. For instance, in
litigation, the opening offer in a settlement negotiation can
influence the recipient’s judgment of a subsequent final offer,
even when the opening offer does not convey relevant
information.106
Likewise influential are “endowment effects,” whereby
individuals perceive more utility from their current state of
affairs than from altered and equivalent circumstances.107 As a
consequence, individuals often demand more to relinquish an
item than they would pay to obtain that same item.108 For
instance, Kahneman and Tversky find that when individuals
are hypothetically assigned one of two jobs, the first with a
higher salary and the second with better working conditions,
they prefer to remain in their assigned job rather than switch,
72 [hereinafter McCann, Illegal Defense] (discussing impact of age and experience on
contract negotiations in the NBA).
104
See Russell Korobkin & Chris Guthrie, Heuristics and Biases at the
Bargaining Table, 87 MARQ. L. REV. 795, 799 (2004).
105
See Gretchen B. Chapman & Eric J. Johnson, Incorporating the Irrelevant:
Anchors in Judgments of Belief and Value, in HEURISTICS AND BIASES: THE
PSYCHOLOGY OF INTUITIVE JUDGMENT 130-33 (Thomas Gilovich et al. eds., 2002); see
also Nicholas Epley & Thomas Gilovich, Putting Adjustment Back in the Anchoring and
Adjustment Heuristic, 12 PSYCHOL. SCI. 391 (2001) (discussing reluctance of individuals
to move away from initial anchors).
106
See Russell Korobkin & Chris Guthrie, Opening Offers and Out-of-Court
Settlement: A Little Moderation May Not Go a Long Way, 10 OHIO ST. J. ON DISP.
RESOL. 1, 11-13, 18-19 (1994). Anchoring and adjustment has also been illustrated by
utilizing different reference points in questioning. See, e.g., Edward J. Joyce & Gary C.
Biddle, Anchoring and Adjustment in Probabilistic Inference in Auditing, 19 J. ACCT.
RES. 120, 122-23 (1981) (illustrating how individuals’ estimation of the likelihood of
corporate fraud varies significantly based on the phrasing of the question).
107
See Korobkin & Guthrie, supra note 104, at 802-03; see also Daniel
Kahneman et al., Experimental Tests of the Endowment Effect and the Coase Theorem,
98 J. POL. ECON. 1325 (1990) (supplying findings that confirm the prevalence of
endowment heuristics); Russell Korobkin, Policymaking and the Offer/Asking Price
Gap: Toward a Theory of Efficient Entitlement Allocation, 46 STAN. L. REV. 663, 668-69
(1994) (discussing endowment heuristics in the context of negotiations).
108
See generally Russell Korobkin, The Endowment Effect and Legal Analysis,
97 NW. U. L. REV. 1227 (2003) (describing and suggesting strategies for the integration
of endowment effect into legal analysis).
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regardless of which job they are assigned.109 Similar findings
are evident in the investment context: individuals prefer to
maintain existing investment instruments (e.g., stocks; bonds)
and their levels of investment, regardless of the instrument
Further, when negotiating
type or investment level.110
contracts, individuals often prefer terms of trade that are
conventional and generally accepted, simply because they are
familiar.111
Correspondingly, consider myopic heuristics, which
encourage individuals to “stay the course,” even when doing so
would diminish their long-term welfare.112 This in part relates
to the human tendency to be more concerned about losses than
gains, and thus more averse to risk of loss than tempted by
For instance, even in the presence of
potential gain.113
conflicting evidence, shareholders often myopically view
earnings reports to assume that short-term earnings are likely
to continue indefinitely.114 Myopic heuristics also pertain to
systematic over-estimation of costs inherent in change, such as
time, thinking, and soliciting advice.115 To illustrate, consider
that individuals often dismiss future environmental concerns
because they are dissuaded by the complexity of the related
literature, as well as the requisite effort to overcome such
complexity.116
109
Kahneman & Tversky, supra note 50, at 348; see also Russell Korobkin,
The Status Quo Bias and Contract Default Rules, 83 CORNELL L. REV. 608, 627 (1998)
(discussing Kahneman & Tversky and related studies).
110
See William Samuelson & Richard Zeckhauser, Status Quo Bias in
Decision Making, 1 J. RISK & UNCERTAINTY 7, 14 (1988) (studying MBA students at
Boston University and public policy graduate students at Harvard University).
111
Russell Korobkin, Inertia and Preference in Contract Negotiation: The
Psychological Power of Default Rules and Form Terms, 51 VAND. L. REV. 1583, 1587-88
(1998).
112
Jolls et al., supra note 45, at 1479 (describing “bounded willpower” and its
effect on human choices); see also Erik Luna, Race, Crime, and Institutional Design, 66
L. & CONTEMP. PROBS. 183, 197 (2003) (discussing myopic heuristics in context of
criminal law).
113
Behavioral Finance: Borrowing from Psychology to Explain Behavior,
PENSIONS & INVESTMENTS, May 26, 1997, at 32 (discussing myopic risk aversion in
context of investment strategies).
114
See Lucian Arye Bebchuck & Marcel Kahan, A Framework for Analyzing
Legal Policy Towards Proxy Contests, 78 CAL. L. REV. 1075, 1102 (1990) (explaining
how management might exploit this behavioral pattern among shareholders to present
short-term earnings in a more favorable light by under-investing in research and
development and other long-term projects).
115
John R. Hauser et al., How Consumers Allocate Their Time When
Searching for Information, 30 J. MARKETING RES. 452, 458 (1993).
116
See U.S. Rep. Earl Blumenauer, Entrepreneurial Environmentalism: A
New Approach for the New Millennium, 30 ENVTL. L. 1, 5 (2000) (observing that
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A more encompassing heuristic pertains to the human
tendency to arrive at conclusions that they are motivated to
reach.117 Indeed, motivation to achieve a certain conclusion
often induces the mind to form impressions, evaluate
observations, and make decisions pursuant to such
motivation.118 The most salient of these motivations is the
desire to see oneself in “self-affirming ways.”119 That is, people
tend to view themselves as harboring good intentions and
To ensure
acting in accordance with moral norms.120
preservation of such selective views, individuals routinely
make dramatic cognitive adjustments, including complete
shielding of conflicting information.121 These adjustments are
especially telling when individuals are confronted with
challenging philosophical choices, such as participation in war
crimes.122
Like cognitive biases then, heuristics may lead to
systemic errors, as judgments about how to best respond to
choice and circumstances can unknowingly discount
meaningful data.123 Taken together, biases and heuristics
reveal significant limits to the rational actor model, and
suggest that individuals may unknowingly pursue less-thanpreferable course of actions. These deleterious tendencies are
only accentuated by individuals’ vast and systematic underappreciation of their capacity to utilize and be manipulated by
“[c]omprehensive environmental approaches are too often laid aside as overly complex
or even impossible to implement”); see also Rebecca M. Bratspies, Myths of Voluntary
Compliance: Lessons from the StarLink Corn Fiasco, 27 WM. & MARY ENVTL. L. & POL’Y
REV. 593, 642 (2003) (discussing difficulty of understanding environmental regulation);
Edward R. Morrison, Judicial Review of Discount Rates Used in Regulatory CostBenefit Analysis, 65 U. CHI. L. REV. 1333, 1346-47 (1998) (describing environmental
regulation as an example of a topic where its complexity tends to dissuade inquiry).
117
Hanson & Yosifon, supra note 92, at 138.
118
Ziva Kunda, The Case for Motivated Reasoning, 108 PSYCHOL. BULL. 480,
480 (1990).
119
Hanson & Yosifon, supra note 92, at 138.
120
Id.
121
Adam Benforado, Jon Hanson & David Yosifon, Broken Scales: Obesity and
Justice in America, 53 EMORY L.J. 1645, 1659 (2004); see also Abhijit Biswas et al.,
Consumer Evaluation of Reference Price Advertisements: Effects of Other Brands’ Prices
and Semantic Cues, 18 J. PUB. POL’Y & MKTG. 52 (1999) (describing how consumers
make cognitive adjustments in value judgments).
122
See Eddie Harmon-Jones & Cindy Harmon-Jones, Testing the Action-Based
Model of Cognitive Dissonance: The Effect of Action Orientation on Postdecisional
Attitudes, 28 PERSONALITY & SOC. PSYCHOL. BULL. 711, 719-21 (2002) (presenting
subjects with varying difficulties of decisions and assessing results).
123
See Cass R. Sunstein, Behavioral Analysis of Law, 64 U. CHI. L. REV. 1175,
1178 (1997).
2006]
PROFESSIONAL ATHLETES
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cognitive distortions.124 As a result, there often exists a
considerable gap between an individual’s set of preferences and
her pattern of choices, thus undermining the very premise
behind rational choice theory.
Nevertheless, the alleged effects of cognitive biases,
heuristics, and, more broadly, behavioral decision theory are
not without critique. One of the most often cited critiques
suggests that while individuals may display cognitive errors in
laboratory or controlled experiments, they may act more
rationally in real world settings.125 There are also doubts as to
how well cognitive biases and heuristics predict anomalous
behavior, or how well such techniques forecast response to
policy shifts or circumstantial changes.126 In the context of
professional athletes contemplating contractual offers, the
following section will assess the relative strengths and
limitations of rational choice models and competing cognitive
influences.
IV.
PROFESSIONAL ATHLETES & CONTRACTUAL DECISIONMAKING
A.
Relevance to the Study of Law and Economics and
Behavioral Sciences
The potential influence of alternative preferences and
cognitive biases on professional athletes is, to date, an
unexplored topic.
Perhaps this is not surprising, since
professional athletes comprise less than one-tenth of one
percent of the population and are thus considered a
statistically-insignificant population segment by most
Moreover, with their often exorbitant
demographers.127
salaries, generous work schedules, and glamorous lifestyles,
professional athletes tend to be considered extraordinarily
124
See Hanson & Yosifon, supra note 92, at 138.
See, e.g., Alan Schwartz & Robert E. Scott, Contract Theory and the Limits
of Contract Law, 113 YALE L.J. 541, 551 & n.18 (2003) (doubting existence of heuristics
and cognitive biases in contract law); Robert E. Scott, A Theory of Self-Enforcing
Indefinite Agreements, 103 COLUM. L. REV. 1641, 1661 (2003).
126
See, e.g., Jessica L. Cohen & William T. Dickens, A Foundation for
Behavioral Economics, 92 AM. ECON. REV. 335, 335 (2002).
127
See, e.g., Fares al-Braizat, Muslims and Democracy: An Empirical Critique
of Fukuyama’s Culturalist Approach, 43 INT’L J. COMP. SOC. 269 (2002), available at
http://www.worldvaluessurvey.org/Upload/5_Islamdem_2.pdf
(describing
as
“insignificant” a population that comprises less than one percent of the total
population).
125
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unique and sufficiently incomparable to more socially-relevant
populations.128 Perhaps for these very reasons, professional
athletes have warranted relatively scant consideration by legal
academics.129 Other reasons for their academic marooning
include a more than occasional dismissal of sports law as a
frivolous area of study,130 as well as sports law’s only recent
ascendancy in legal academia.131
Overlooking professional athletes, however, appears to
be a disservice to the study of behavioral law and economics.
Indeed, although a comparatively small group, professional
athletes appear strikingly influential on the world around
them. Most notably, professional athletes play on teams which
supply tangible economic benefit to local communities,
including the generation of employment opportunities for
vendors, concessionaires, security, and other ameliorated
groups, as well as the boosting of sales for adjoining businesses,
such as restaurants, pubs, and hotels.132 Also consider the
128
See, e.g., Brown v. Pro Football, Inc., 518 U.S. 231, 255-57 (1996) (Stevens,
J., dissenting) (highlighting the unique economic position of professional athletes); Dan
Messeloff, The NBA’s Deal with the Devil: The Antitrust Implications of the 1999 NBANBPA Collective Bargaining Agreement, 10 FORDHAM INTELL. PROP. MEDIA & ENT. L.J.
521, 532 (2000) (quoting NATIONAL BASKETBALL ASSOCIATION UNIFORM PLAYER
CONTRACT, ¶ 9) (explaining how the “extraordinary and unique skill and ability” of
professional athletes renders them sufficiently distinct from other population groups
considered by the law); Eric D. Scheible, No Runs. No Hits. One Error: Eliminating
Major League Baseball’s Antitrust Exemption Will Not Save the Game, 73 U. DET.
MERCY L. REV. 73, 100 n.209 (1995) (describing unique nature of professional athlete in
the labor market, and implying how that nature might make legal comparison more
challenging and less predictable).
129
Timothy Davis, What Is Sports Law?, 11 MARQ. SPORTS L. REV. 211, 212
(2001) (noting that many legal academics believe that analysis of sports does not
warrant academic attention).
130
See, e.g., James R. Elkins, Troubled Beginnings: Reflections on Becoming a
Lawyer, 26 U. MEM. L. REV. 1303, 1311 (1996) (quoting JOHN GRISHAM, THE
RAINMAKER (1996)).
131
See Roger I. Abrams, Book Review, 54 U. CIN. L. REV. 1237, 1238 (1986)
(describing how sports law became popular in the late 1980s, following growth of the
modern sports industry). In fact, since the 1990s, a number of law schools, including
Tulane Law School and Marquette University Law School, offer certificates in sports
law. Larry Cata Backer, Toward General Principles of Academic Specialization by
Means of Certificate or Concentration Programs: Creating a Certificate Program in
International, Comparative and Foreign Law at Penn State, 20 PENN ST. INT’L L. REV.
67, 117 n.115 (2001). See http://www.law.tulane.edu (follow links to “Programs of
Study” and “Sports Law”) (last visited Jan. 25, 2006). In contrast to many legal
scholars, economists have tended to regard professional sports as a useful vehicle from
which to examine a range of theoretical issues. See, e.g., J. Colin H. Jones et al.,
Ethnicity, Productivity and Salary: Player Compensation and Discrimination in the
National Hockey League, 31 APPLIED ECON. 593, 594 (1999) (discussing role of
professional sports in economic research).
132
See generally KENNETH L. SHROPSHIRE, THE SPORTS FRANCHISE GAME
(1995) (claiming that sports teams provide a multiplier effect on local economies);
2006]
PROFESSIONAL ATHLETES
1483
capacity of professional sports to effect meaningful broadcast
revenue: the television contracts of the four largest leagues (the
National Football League (“NFL”), Major League Baseball
(“MLB”), the National Basketball Association (“NBA”), and the
National Hockey League (“NHL”)) collectively exceed $4 billion
annually.133 More subjectively, professional athletes supply
appreciable, though intangible benefit to their surrounding
communities, often in the form of team pride or simply the
enabling of fandom and associated enjoyment.134
Perhaps more importantly, and unlike most population
groups, professional athletes furnish published commentary of
their thought processes, as evidenced by regular newspaper,
television, and radio interviews. Moreover, burgeoning playerto-fan discussions, such as chat rooms or blogs, offer
supplemental avenues for players to explain their decisionmaking processes.135 Further commentary is provided by the
media, players’ agents, team executives, and a myriad of
“insiders.”136 In short, there exists a wealth of statements by
SPORTS, JOBS & TAXES: THE ECONOMIC IMPACT OF SPORTS TEAMS AND STADIUMS (Roger
G. Noll & Andrew Zimbalist eds., 1997) (arguing that sports teams create jobs, boost
tourism, and decrease crime). But see MARK ROSENTRAUB, MAJOR LEAGUE LOSERS:
THE REAL COSTS OF SPORTS AND WHO’S PAYING FOR IT (2001) (on file with author)
(dismissing the benefit of sports franchises on the local economy as miniscule); PAUL C.
WEILER, LEVELING THE PLAYING FIELD: HOW THE LAW CAN MAKE SPORTS BETTER FOR
FANS 267-69 (2000) (equating a publicly-financed stadium to a public park that charges
expensive admission); Dale F. Rubin, Public Aid to Professional Sports Teams—A
Constitutional Disgrace.
The Battle to Revive Judicial Rulings and State
Constitutional Enactments Prohibiting Public Subsidies to Private Corporations, 30 U.
TOL. L. REV. 393, 418 (1999) (arguing against public finance for professional sports
franchises due to lack of credible evidence such financing ultimately yields greater
benefit than cost).
133
See PAUL C. WEILER & GARY R. ROBERTS, SPORTS AND THE LAW: TEXT,
CASES, PROBLEMS 389 (2d ed. 1998).
134
See WEILER, supra note 132, at 170 (observing that sports fans follow their
favorite teams and players similar to religious followers); see also Bruce W. Burton &
Matthew J. Mitten, New Remedies for Breach of Sports Facility Use Agreements: Time
for Marketplace Realism, 88 IOWA L. REV. 809, 820 n.37 (2003) (illuminating
psychological benefits identified by sports fans).
135
Some players, such as Red Sox pitcher Curt Schilling, regularly utilize chat
rooms to post their thoughts. Daniel G. Habib, Down to the Last Out, SPORTS
ILLUSTRATED, Sept. 27, 2004, at Z8 (noting how Schilling regularly posts on the “Sons
of Sam Horn” message board, which is primarily comprised of devoted Red Sox fans);
see also Howard Bryant, Schilling’s Off Line, BOSTON HERALD, June 15, 2004, at 90
(criticizing Schilling for communicating his feelings directly through Sons of Sam Horn
while refusing to discuss those feelings with reporters).
136
Such insiders even include player wives. See Steven M. Ortiz, The
Ethnographic Process of Gender Management: Doing the “Right” Masculinity with
Wives of Professional Athletes, 11 QUALITATIVE INQUIRY 265, 273 (2005) (interviewing
players’ wives regarding their husbands’ choices in both the personal and professional
arena).
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athletes and those close to them that attest to their values,
beliefs, and priorities when deciding where, and for how much
they want to play, among other choices.
Accordingly,
professional athletes illuminate real world behavioral patterns,
rather than stimuli to experimental circumstances, and, in
doing so, abrogate the alleged “experimental flaw” of many
behavioral law and economic studies.137
Thus, exploring the decision-making processes of
professional athletes in the context of employment
opportunities may prove not only to be an engaging exercise,
but an instrumental analysis of behavioral tendencies in realworld settings. This Article will now turn to this exploration,
and will begin with a discussion of contracting and choice
among professional athletes. Subsequently, it will canvass
actual players who accepted the “less-than-optimal” contract
offers, assuming optimality is defined as the most lucrative
offer. In doing so, this Article will address whether their
choices reflected conscious preferences, such as desire to be
close to home or partiality to warm weather, or cognitive biases
and heuristics that went unappreciated in their decisionmaking processes.
B.
Exploring Contract Negotiations Between Player, Agent
& Team
Like film actors, musicians, and other high-paid,
service-oriented professionals, professional athletes enter into
personal services contracts that reflect their unique skills or
talents.138 In the case of professional athletes, those unique
skills or talents comprise the exceedingly rare ability to
athletically perform in a way that attracts financial
As a result, their “employment” with
remuneration.139
professional sports teams entails their “execution of personal
services contract[s] with the owner or prospective owner of a
137
See supra note 125 and accompanying text.
See M. Scott McDonald, Noncompete Contracts: Understanding the Cost of
Unpredictability, 10 TEX. WESLEYAN L. REV. 137, 143 (2003).
139
To illustrate how exceedingly rare it is for an athlete to ever earn income
playing sports, consider that “[o]nly 3 out of every 10,000 boys who play high school
basketball ever make it to the pros,” and “[o]nly 1 out of every 75 college players ever
makes the jump to the big time.” Fred Bowen, Going Pro: It’s a Long Shot, WASH.
POST, June 29, 2001, at C12 (citing research conducted by the National Collegiate
Athletic Association (NCAA)). Also consider that less than one percent of high school
athletes receive college athletic scholarships. Tony Hansen, Havin’ a Ball at Camp,
BATTLE CREEK ENQUIRER, May 26, 2004, at 1B.
138
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professional sports team for the purpose of future athletic
services.”140
Typically, players’ contracts are negotiated by their
Generally,
agents, who are contracted representatives.141
agents receive a fixed percentage of earnings under player
contracts, which reflects their commission, although some
receive compensation based on hourly rates instead.142 Player
agents perform other services as well, such as negotiating
endorsement contracts, providing financial management and
accounting advice, and resolving disputes that arise under the
athlete’s employment contract.143 Significantly, and as in any
agency relationship, the player (client) possess decision-making
authority for all aspects pertaining to his profession.144
The actual framework for contract negotiation between
player/agent and team greatly depends on the sport and the
player’s level of experience. In all four major sports leagues
(i.e., the NFL, MLB, the NBA, and the NHL), players gain
entrance by selection in an entry draft, whereby a team
“drafts” the player, and obtains that player’s rights to play in
the associated league.145 The primary purpose of a draft is to
140
See Rob Remis & Diana Sudia, Escaping Athlete Agent Statutory
Regulation: Loopholes and Constitutional Defectiveness Based on Tri-Parte
Classification of Athletes, 9 SETON HALL J. SPORT L. 1, 65 (1999) (quoting “Definition of
Athlete” under CONN. GEN. STAT. ANN. § 20-553 (West 1997)).
141
Id.
142
Typically, the fixed percentage is between three and five percent of total
earnings. Eric Willenbacher, Regulating Sports Agents: Why Current Federal and
State Efforts Do Not Deter the Unscrupulous Athlete-Agent and How a National
Licensing System May Cure the Problem, 78 ST. JOHN’S L. REV. 1225, 1244 & n.139
(2004) (citing Michael Cohen, Meet the Real Jerry Maguires, BOSTON BUS. J., Oct. 5,
1998). More recently, some agents, such as Lon Babby of Williams & Connolly, have
begun utilizing an hourly rate, rather than commission. See generally Stacey M.
Nahrwold, Are Professional Athletes Better Served by a Lawyer-Representative than an
Agent? Ask Grant Hill, 9 SETON HALL J. SPORT L. 431, 458-60 (1999) (describing
Babby’s work for Grant Hill of the Orlando Magic).
143
James G. Sammataro, Comment, Business and Brotherhood, Can They
Coincide? A Search into Why Black Athletes Do Not Hire Black Agents, 42 HOW. L.J.
535, 545 & n.50 (1999) (citing Rob Remis, Analysis of Civil and Criminal Penalties in
Athlete Agent Statutes and Support for Imposition of Civil and Criminal Liability upon
Athletes, SETON HALL J. SPORT L. 1, 6 (1998)); see also Richard C. Webb, Personal
Services Lawyering: Sports, Entertainment, Art or Just Plain Risky Business?, 5 S.C.
LAW. 11, 12 (1993) (describing myriad duties of player agents, some of which include
rather undignified duties, such as fielding late-night phone calls pertaining to trivial
matters).
144
See Grace M. Giesel, Enforcement of Settlement Contracts: The Problem of
the Attorney Agent, 12 GEO. J. LEGAL ETHICS 543, 587-88 (1999) (discussing rights of
client versus those of agent).
145
See Michael A. McCann & Joseph S. Rosen, The Legality of Age
Restrictions in the NBA and the NFL, 56 CASE W. RES. L. REV. (forthcoming, 2006), at
Part 1 (discussing eligibility for NFL and NBA Drafts) (draft of article on file with
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prevent amateur players from bargaining with multiple
teams.146 Indeed, in each of the four major leagues, once a team
drafts an amateur player, his playing rights become the
exclusive property of that team for at least one calendar year,
and he can negotiate with no other teams during that time.147
If a player chooses not to sign and wait one year, the team that
drafted him no longer controls his rights, but that player’s only
option to gain entry into the league is to enter the draft again,
“and if drafted a second time, he again becomes the property of
[another] team for one year.”148 Practically, therefore, the draft
is the exclusive entrance for amateur players into professional
sports.
Once drafted, an athlete signs a player contract in
accordance with the league’s collective bargaining agreement.
There are significant variations among the four major sports
leagues for entry contracts, as parameters for such contracts
reflect the product of negotiations between individual leagues
and players’ associations. For instance, while players selected
in the NBA Draft sign for pre-determined salary slots in
accordance with their draft position,149 players selected in the
MLB Draft can negotiate their own contracts. Though heavily
influenced by draft position, such contracts may vary widely
upon leveraging circumstances, such as whether the player has
remaining collegiate eligibility, or whether the team possesses
sufficient funds to sign its draft selections.150
author); Erik Ekblad, Note, A Slice into the Sand Trap: Why the PGA Was Unwise in
Its Decision to Push Its Dispute with Casey Martin to the Supreme Court, 32 SW. U. L.
REV. 151, 174 (2003) (noting mechanics of MLB Draft and NHL Draft).
146
See McCann, Illegal Defense, supra note 103, at 130.
147
See, e.g., NBPA, Collective Bargaining Agreement, July 30, 2005, art.
X(1)(b)(ii), available at http://nbpa.org/cba_articles/article-X.php#section1 (last visited
Jan. 26, 2006) (stipulating the rule for players selected in the NBA Draft); NFL
Collective Bargaining Agreement, art. XVI, 4(b), at 44 (1993), available at
http://www.nflpa.org/Members/main.asp?subPage=CBA+Complete#art16 (last visited
Jan. 26, 2006) (stipulating that the playing rights of players selected in the NFL Draft
remain the property of the drafting team for one calendar year); Jeffrey A. Rosenthal,
The Amateur Sports Draft: The Best Means to the End?, 6 MARQ. SPORTS L.J. 1, 19 n.79
(1995) [hereinafter Rosenthal] (citing Major League Baseball Professional Rules Book
4(e) (1988), which stipulates that the playing rights of players selected in the MLB
Draft remain the property of the drafting team for one calendar year or until the player
returns to college, whichever is shorter)). While occasional exceptions to this standard
exist, they are seldom employed. Peter N. Katz, Comment, A History of Free Agency in
the United States and Great Britain: Who’s Leading the Charge, 15 COMP. LAB. L.J.
371, 384 n.82 (1994).
148
McCann, Illegal Defense, supra note 103, at 129-30.
149
See discussion infra pp. 1487-88.
150
Rosenthal, supra note 147, at 17-20; see also Jack Curry, Fulfilling Great
Expectations: Barry Lamar Bonds, N.Y. TIMES, Oct. 7, 2001, § 8, at 1 (describing how
2006]
PROFESSIONAL ATHLETES
1487
Regardless of the league, a drafted player can only
maximize his earning potential by eventually obtaining “free
agent” status, whereby the player may negotiate and sign with
any team.151 Typically, such status emerges only after a player
has accrued a certain level of service time in a particular
league, and only after his existing contract has expired.152
There are two types of free agency: “unrestricted” free agency,
whereby a player can negotiate and sign with any team after
his contract expires, and “restricted” free agency, whereby a
player can likewise negotiate and sign with any team after his
contract expires, but the original team reserves the right to
“match” any signed contract or otherwise receive compensation,
usually in the form of draft selections.153 Thus, an unrestricted
free agent possesses the optimal bargaining position: he can
sign with any team, and the team with which he signs owes no
compensation to his prior team.154
To illustrate the economic path of a professional athlete,
consider an amateur player who seeks to enter the NBA. This
player must participate in the NBA Draft, in which he will
either be drafted by a team in one of two rounds, or not
selected. If he is drafted in the first round, he will sign a
guaranteed two-year contract for a pre-determined amount,
ranging from $9.0 million for the first pick to $1.8 million for
the last pick in that round.155 The NBA team that drafts him
Barry Bonds was originally drafted in 1982 by the San Francisco Giants, chose to
attend Arizona State instead, and in 1985 was drafted by the Pittsburgh Pirates, with
whom he signed).
151
See generally WEILER, supra note 132, at 170-97 (discussing free agency’s
effect on the professional sports leagues). See also McCann, Illegal Defense, supra note
103, at 212 (discussing impact of free agency on career earnings opportunities for NBA
players); Note, NFL Free Agency Restrictions Under Antitrust Attack, 1991 DUKE L.J.
503 (1991) (exploring impact of free agency on player salaries in the NFL).
152
For instance, in MLB, a player can only become a free agent after six years
of service time. See Joshua Hamilton, Comment, Congress in Relief: The Economic
Importance of Revoking Baseball’s Antitrust Exemption, 38 SANTA CLARA L. REV. 1223,
1240 & n.144 (1998) (explaining the history and rationale behind the rule).
153
See Note, supra note 151, at 503 nn.1-2.
154
See Ethan Lock, The Regulatory Scheme for Player Representatives in the
National Football League: The Real Power of Jerry Maguire, 35 AM. BUS. L.J. 319, 32628 (1998) (explaining the implications of unrestricted and restricted free agency for
professional athletes).
155
See NBPA, Collective Bargaining Agreement, supra note 147, at Exhibit B,
available at http://nbpa.org/cba_exhibits/exhibitB.php (last visited Jan. 26, 2006); see
also McCann, Illegal Defense, supra note 103, at 125 & n.37, 128 & tbl. 4 and
accompanying text (describing draft pick economics in preceding collective bargaining
agreement and how players selected in the first round of the NBA Draft can negotiate
between 80% and 120% of stated annual salaries, and how, in practice, they always
negotiate 120%).
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may extend his contract following his second and third seasons,
although he may become a restricted free agent at the
conclusion of his fourth season.156 Only at the conclusion of his
fifth season may he become eligible for unrestricted free
agency.157 In contrast, if he is drafted in the second round, he
may obtain unrestricted free agency status earlier in his
career, although most players selected in the second round sign
either non-guaranteed contracts for the league minimum
($398,762) or simply fail to earn a contract.158 If he is not
drafted in either round, then he immediately becomes an
unrestricted free agent, though seldom does such a player ever
play in the NBA.159
Assuming the player described in the preceding
paragraph becomes a star, his earning capacity as an
unrestricted free agent would prove quite impressive. Indeed,
after completion of his rookie contract, and upon becoming an
unrestricted free agent, that player may sign a contract worth
up to the “maximum contract,” which reflects the longest and
156
NBPA, Collective Bargaining Agreement, supra note 147, at art. VIII,
available at http://nbpa.org/cba_articles/article-VIII.php (last visited Mar. 2, 2006).
157
From a practical standpoint, most players remain with their team at the
conclusion of the fourth season. Indeed, the 2005 Collective Bargaining Agreement
preserves the so-called “Larry Bird exception,” which allows teams to exceed the salary
cap in order to re-sign their own players (also called “Larry Bird rights”). See McCann,
Illegal Defense, supra note 103, at 124-25. Thus, when a first round pick concludes his
fourth season, usually the team for which he has played can offer him the most.
158
See NBPA, Collective Bargaining Agreement, supra note 147, at Exhibit C,
available at http://nbpa.org/cba_exhibits/exhibitC.php (last visited Jan. 26, 2006). Very
rarely, a second round pick will surprise the NBA and become a competent player or
even a star player. Under the 1999 Collective Bargaining Agreement, such star
players could gain optimal negotiating power at the conclusion of their second season—
when their rookie contracts would typically expire—as they became “non-Larry Birdrights restricted free agents,” since Larry Bird rights only manifest after a player plays
three seasons. As a result, the “restricted” nature of their free agency was curtailed,
since, due to the absence of Larry Bird rights, the team for which they played could not
re-sign them for any amount above the salary cap. This very machination arose in
2003, when 2001 second round pick Gilbert Arenas of the Golden State Warriors
became a restricted free agent, and because Arenas had no Larry Bird rights and
because the Warriors’ payroll exceeded the league-imposed salary cap, the Warriors
could not match the six-year, $65 million free agent contract Arenas had signed with
the Washington Wizards. See McCann, Illegal Defense, supra note 103, at 126-27. The
2005 Collective Bargaining Agreement, however, disallows other teams from offering
such a player more than $4.5 million for his third season, an amount all NBA teams
may utilize through its “mid-level exception” to the salary cap, regardless of whether
the team’s payroll exceeds the salary cap. As a result, teams may hold on to their
second-round picks long enough to invoke their Larry Bird rights. See NBPA,
Collective Bargaining Agreement, supra note 147, at art. XI(5), available at
http://nbpa.org/cba_articles/article-XI.php#section5 (last visited Mar. 2, 2006); see also
NBPA, Collective Bargaining Agreement, supra note 147, at art. X(1)(b)(ii), available at
http://nbpa.org/cba_articles/article-X.php#section1 (last visited Jan. 26, 2006).
159
See McCann, Illegal Defense, supra note 103, at 122.
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PROFESSIONAL ATHLETES
1489
most lucrative contract allowable under the NBA’s collective
bargaining agreement.160 Currently, that maximum contract is
worth approximately $91 million over a six-year period.161
Although such a contract is typically reserved for the league’s
best players, even far less-heralded players may obtain
This
exorbitant deals as unrestricted free agents.162
phenomenon is not unique to basketball, as unrestricted free
agents in baseball, football, and hockey likewise position
themselves for extraordinarily lucrative contracts.163
Thus, the most dynamic setting for professional sports
contracting occurs when a player becomes an unrestricted free
agent, attracts meaningful interest from multiple teams, and
negotiates with those teams to yield the optimal contract. Put
differently, this setting offers a “competitive market,” since
there exists a market of sellers (i.e., the teams) competing for
the attraction of a buyer (i.e., the player).164 Though varying
circumstances, such as number of interested teams and relative
skill of representation, as well as collectively-bargained
restraints of trade, such as “salary caps” and “luxury taxes,”165
160
See NBPA, Collective Bargaining Agreement, supra note 147, at art. II(7),
available at http://nbpa.org/cba_articles/article-II.php#section7 (last visited Jan. 26,
2006).
161
Id. This figure is based on an amount up to thirty percent of the NBA’s
salary cap in effect at the time the contract is executed, and can thus change in
correspondence to any changes in the salary cap. Id. at art. II(7)(a)(2).
162
For instance, consider Mark Blount, the much-maligned Minnesota
Timberwolves center, who, as an unrestricted free agent in 2004, managed to secure a
six-year contract worth $42 million with the Boston Celtics. Shira Springer, Celtics Do
New Deal for Blount, BOSTON GLOBE, July 9, 2004, at E1. Another strikingly lucrative
free agent contract was obtained by Derek Fisher, the venerable but middling point
guard, who, as an unrestricted free agent in 2004, signed a six-year contract worth $37
million. David DuPree, Lakers Have Plenty of Retooling To Do, USA TODAY, July 16,
2004, at 14C.
163
See, e.g., WEILER, supra note 132, at 185 (“[A]verage MLB salaries have
soared under free agency.”); see also Mélanie Aubut, When Negotiations Fail: An
Analysis of Salary Arbitration and Salary Cap Systems, 10 SPORTS LAW. J. 189, 198201 (describing optimal bargaining position for MLB players); Lock, supra note 154, at
335-39 (describing optimal bargaining position for NFL players); Stephen F. Ross, The
NHL Labour Dispute and the Common Law, The Competition Act, and Public Policy, 37
U.B.C. L. REV. 343, 403 (2004) (describing optimal bargaining position for NHL
players).
164
See Eyal Zamir, The Inverted Hierarchy of Contract Interpretation and
Supplementation, 97 COLUM. L. REV. 1710, 1790 (1997).
165
A salary cap is a ceiling on the total amount teams may spend on player
salaries, while a luxury tax requires teams with payrolls over a particular threshold to
pay a percentage of the excess to the other teams in the league. Id. Thus, a salary cap
imposes an actual limit on team payroll, while a luxury tax serves as a deterrent to
teams that would otherwise spend above a certain threshold. See generally Thomas A.
Piraino, Jr., A Proposal for the Antitrust Regulation of Professional Sports, 79 B.U. L.
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affect the degree of market competition, meaningful
engagement among multiple parties tends to emerge whenever
a player becomes an unrestricted free agent.166
Lastly, note the relatively brief earnings curve for most
professional athletes, and thus their limited window of time to
capitalize on lucrative earnings. Indeed, in all four major
leagues, the average career only lasts between four and six
years,167 and only a small percent of players within those
leagues play into their late thirties or beyond.168 Along those
lines, most professional athletes are considered in their “prime”
for a mere two- or three-year stretch, which typically occurs
between the ages of 27 and 30; outside of that window, athletes
usually possess diminished earnings potential.169 Thus, and
along with the need to accrue sufficient service time in order to
obtain free agent eligibility, many professional athletes possess
only one opportunity to “cash in” as unrestricted free agents.
In part for that reason, many seek to maximize their earnings
as free agents. This topic, along with evidence of alternative
free agent pursuits, will be explored in the following section.
V.
IDENTIFYING CHOICE, BIAS, AND HEURISTICS AMONG
PROFESSIONAL ATHLETES
A.
Evidence of Monetary-Maximizing Values Among
Professional Athletes
The setting of an unrestricted free agent negotiating
with multiple teams drives several analytical interpretations.
Traditional rational choice theory would posit that such an
athlete, like any rational actor, would pursue maximization of
REV. 889, 936-39 (1999) (comparing salary caps and luxury taxes as modes to ensure
competitive play in professional sports).
166
Other externalities might include an absence of perfect information and
certain obstacles to the execution of contracts, such as league approval.
167
See McCann, Illegal Defense, supra note 103, at 170 (noting that the
average NBA career lasts five years); Alan Gersten, Show Me the Money: Why
Professional Athletes Make Tough Clients, FIN. PLANNING, Mar. 1, 2005, at 5 (noting
that the average NHL career lasts six years, the average MLB career lasts three and a
half years, and the average NFL career also lasts three and a half years).
168
See, e.g., McCann, Illegal Defense, supra note 103, at 170 (discussing how
only three percent of NBA players are over the age of thirty-five); Martin Miller,
Raising the Bar at 40, L.A. TIMES, Sept. 29, 2003, at F1 (noting how, in 2003, only
eleven MLB players, nine NHL players, six NFL players, and two NBA players were
forty or older).
169
Id. But see Michael Russo, Many Free Agents, Not Much Money, SUNSENTINEL, July 1, 2001, at 15C (noting several large contracts obtained by aging NHL
players).
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PROFESSIONAL ATHLETES
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“utility,” as best, or most readily evidenced by monetary
wealth. This deduction may be observed at both the macro and
micro level. Most dramatically, consider the recent precipitous
rise in player salaries, an ascent primarily attributed to the
maximization of monetary interests during free agent
bargaining.170 For instance, since 1995, the average NHL
player salary has risen by 245 percent ($733,000 to $1.8
million), during which time league revenue has grown by only
163 percent.171 Similarly astounding, consider that since 1983,
the average NBA player salary has grown by 1,892 percent
($246,000 to $4.9 million),172 or that since 1989, the average
MLB player salary has risen by 423 percent ($497,000 to $2.6
million).173 These trends suggest that maximization of wealth
proves a salient consideration to many professional athletes,
thus corroborating a traditional rational choice model.
On a micro level, traditional rational choice would find
that when players (and their representatives) negotiate with
teams, they each begin with a reservation price, defined in this
context as the maximum amount each is willing to relinquish
or the minimum amount each is willing to accept.174 To
illustrate, imagine a player who seeks a contract extension
170
See generally MICHAEL LEWIS, MONEYBALL: THE ART OF WINNING AN
UNFAIR GAME (2003) (discussing precipitous increase in salaries among MLB players
since the advent of free agency, and how such a development has disadvantaged
smaller-market teams); Richard A. Kaplan, Note, The NBA Luxury Tax Model: A
Misguided Regulatory Scheme, 104 COLUM. L. REV. 1615 (2004) (studying economic
trends in the NBA); Sanjay José’ Mullick, Browns to Baltimore: Franchise Free Agency
and the New Economics of the NFL, 7 MARQ. SPORTS L.J. 1 (1996) (studying economic
trends in the NFL); Joseph M. Weiler, Legal Analysis of the NHL Players’ Contract, 3
MARQ. SPORTS L.J. 59 (1992) (studying economic trends in the NHL); ANDREW
ZIMBALIST, MAY THE BEST TEAM WIN: BASEBALL ECONOMICS AND PUBLIC POLICY (2003)
(studying economic trends in MLB).
171
See Dave Stubbs, Europe Might Elbow NHL out of Picture, MONTREAL
GAZETTE, Feb. 17, 2005, at A3 (noting the increase in player salary); Michael Arace,
Players Ratify New Deal, COLUMBUS DISPATCH, July 22, 2005, at 1F (noting the
increase in league revenue).
172
See Looking for a Model? Try the NBA, TORONTO STAR, Dec. 16, 2004, at C4
(noting the current average NBA salary); David Dupree, NBA: Red Ink and a Bleak
Future, WASH. POST, Mar. 15, 1983, at D1 (noting the average NBA salary in 1983).
The increase in average NBA salary has closely approximated the increase in league
revenue, which has risen 1,840 percent since 1983 ($160 million to $3.1 billion).
Looking for a Model?, supra (citing current league revenue); Union Alters Stance, N.Y.
TIMES, Mar. 26, 1983, at 1 (noting projected revenues for 1984-85 season).
173
See Murray Chass, Players’ Figures Show $497,254 Pay Average, SPORTING
NEWS, Dec. 18, 1989, at 44 (noting the average MLB salary in 1989) (on file with
author); Tim Tucker, Baseball Pay Creeps Up, ATLANTA J.-CONST., Apr. 10, 2005, at 2E
(noting the current average MLB salary).
174
See DAVID A. LAX & JAMES K. SEBENIUS, THE MANAGER AS NEGOTIATOR:
BARGAINING FOR COOPERATION AND COMPETITIVE GAIN 51 (1986).
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from his existing team, but because he has not yet accrued
sufficient service time for free agent eligibility, he cannot
pursue employment with any other team should such an
extension fail.175 If this player enters contract negotiations
with a reservation price of $2 million per year, it means that he
is unwilling to accept any contract that pays him less than $2
million per year, and also that he is willing to pursue noncontractual resolutions in lieu of a contract for less than $2
million per year. The primary such resolution is a “hold-out,”
whereby the player refuses to report to his team (and thus
forfeits pay) in hopes that doing so will motivate that team to
acquiesce.176
Importantly, there exists a meaningful distinction
between “public” and “private” reservation prices, and such
prices may evolve in accordance with unexpected or non-static
market conditions.177 For instance, after completing his most
recent contract with the Atlanta Braves in October 2003,
pitcher Greg Maddux instructed his agent to inform teams that
he would accept no less than a two-year contract worth $20
After four months of unexpectedly lukewarm
million.178
interest, however, Maddux would agree to a two-year contract
worth $15 million with the Chicago Cubs.179
175
This fact-pattern arises with some regularity in MLB, the NFL, and the
NHL, though less often in the NBA, as the league’s CBA stipulates more discernable
contract parameters, thus diminishing opportunities for discord between player and
team in negotiating contract extensions. See McCann, Illegal Defense, supra note 103,
at 195.
176
For instance, during NFL training camp in August 2004, Miami Dolphins’
defensive end Adewale Ogunleye held out in hopes of receiving a long-term extension
instead of a one-year extension tendered by the Dolphins. Alex Marvez & Keven
Lerner, Dolphins Reward Chambers, ORLANDO SENTINEL, Aug. 6, 2004, at D3. Rather
than acquiescing to his demand, the Dolphins traded Ogunleye to the Chicago Bears,
who promptly signed Ogunleye to a long-term extension. Mike Mulligan, Bears Can
Alter Stingy Image in a Buy Week, CHI. SUN-TIMES, Aug. 24, 2004, at 105; see also Basil
M. Loeb, Comment, Deterring Player Holdouts: Who Should Do It, How to Do it, and
Why It Has to Be Done, 11 MARQ. SPORTS L. REV. 275, 275-79 (2001) (providing a
detailed background of holdouts in professional sports and how players internalize the
relative risks and benefits of pursuing holdouts).
177
See Lynn A. Stout, Are Takeover Premiums Really Premiums? Market
Price, Fair Value, and Corporate Law, 99 YALE L.J. 1235, 1237 n.150 (describing how
reservation prices are affected by modified expectations and how they may be
strategically revised to accommodate such expectations).
178
See Tom Verducci, Hard Line: Will Scott Boras’s Waiting Game Help or
Hurt His Clients This Year?, SPORTS ILLUSTRATED, Jan. 19, 2004, at 84.
179
Mike Kiley, Wood Takes Cubs’ Sales Pitch, CHI. SUN-TIMES, Feb. 28, 2004,
at 102 (noting also that the contract included a possible third year for $9 million if
Maddux pitches a certain number of innings during the 2004 and 2005 seasons).
2006]
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During actual negotiations, rational choice analysis
would find players and teams attempting to identify their
bargaining zone, which, as discussed in Section II, comprises
the range of amounts between competing reservation prices.180
Within this range, any amount would prove “mutually
beneficial, or ‘Pareto superior’ to the alternative of not reaching
an agreement.”181 Put more succinctly by Richard Posner,
Pareto superior “makes at least one person better off and no
one worse off.”182
In the context of professional sports negotiations,
effectively identifying the bargaining zone depends upon
negotiation parameters, such as whether the negotiations
concern a free agent or a current employee, as well as the
number of potential suitors for the player. Predictably, a free
agent with numerous teams pursuing his services generally
has less of an incentive to identify a bargaining zone with any
one of those teams than would a player negotiating a contract
extension with his present team, particularly if that player
would not become a free agent in the near future.183 Bargaining
zones may also provide room for settlement when the parties
reach incompatible estimates of each others’ reservation
price.184 Along those lines, settlement proves especially likely
180
See discussion infra pp. 1464-65 and accompanying notes; see also Russell
Korobkin, A Positive Theory of Legal Negotiation, 88 GEO. L.J. 1789, 1816-17 (2000).
Professor Robert H. Mnookin characterizes the bargaining zone as the “zone of possible
agreement.” See ROBERT H. MNOOKIN ET AL., BEYOND WINNING: NEGOTIATING TO
CREATE VALUE IN DEALS AND DISPUTES 20 (2000).
181
See Korobkin, Aspirations and Settlement, supra note 23, at 5.
182
RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 14 (5th ed. 1998).
183
Even with the more favorable circumstances described herein, a player
may nevertheless prove unwilling to constructively pursue the bargaining zone. For
instance, as discussed below on pages 1520-1524, at the start of the 2003 MLB season,
it is speculated that Boston Red Sox shortstop Nomar Garciaparra was unwilling to
negotiate a contract extension, despite the team’s interest in consummating one, and
despite the fact that Garciaparra would not be eligible for free agency until after the
2004 season. Dan Shaughnessy, Damaged Goods: Deal Garciaparra, BOSTON GLOBE,
July 3, 2004, at G1 [hereinafter Shaughnessy, Damaged Goods] (asserting that Red
Sox management doubted Garciaparra’s actual willingness to negotiate). But see Julie
S. Turner, The Nonmanufacturing Patent Owner: Toward a Theory of Efficient
Infringement, 86 CAL. L. REV. 179, 197 (1998) (describing the presence of multiple
parties as an impediment to the consummation of an agreement between two parties).
184
George A. Loewenstein & Don A. Moore, When Ignorance Is Bliss:
Information Exchange and Inefficiency in Bargaining, 33 J. LEGAL STUD. 37, 45 (2004)
(describing the value of large bargaining zones in difficult negotiations).
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when parties perceive limited or unsatisfying alternatives to an
agreement.185
Nevertheless, incompatible estimates of competing
reservation prices occasionally yield impasse, whereby the
parties, frustrated by their failure to reach a number within
the bargaining zone, cease negotiations.186 Some traditional
rational choice theorists believe that impasse arises due to a
lack of shared information, which eventually motivates parties
to misinterpret each others’ reservation price.187 More recent
analysis, however, suggests that sharing of information may
actually promote divergence between the parties, particularly
when such information invites disparate interpretation.188 This
later finding appears corroborated by the “self-serving” bias
apparent during negotiations, as even contemporary rational
choice analysis identifies a tendency among parties to interpret
information in egoistic ways, thus further impairing their
pursuit of a mutually-satisfying number.189
To illustrate the difficulties of identifying a number
within the bargaining zone, as well as the presence of selfserving bias in estimating the competing reservation price,
consider the effect of “market-setting” contracts in professional
sports. These contracts establish an economic barometer by
which other players and teams may determine market value in
the same economic period.
This barometer is especially
illuminating in a free agency period, as it allows instant and
contemporaneous comparisons of existing free agents with
those who had recently signed contracts. Often, comparative
185
See Kevin C. McMunigal, The Costs of Settlement: The Impact of Scarcity of
Adjudication on Litigating Lawyers, 37 UCLA L. REV. 833, 861 n.106 (1990) (noting
that negotiations are guided by the presence of alternative and viable opportunities).
186
Impasse may be defined as “that point at which the parties have exhausted
the prospects of concluding an agreement and further discussions would be fruitless.”
Laborers Health and Welfare Trust Fund for N. California v. Advanced Lightweight
Concrete Co., 484 U.S. 539, 543 n.5 (1988).
187
See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 525 (3d ed. 1986); see
also Steven Shavell, Sharing of Information Prior to Settlement or Litigation, 20 RAND
J. ECON. 183 (1989) (applying information-sharing to the context of litigation, and
finding that discovery promotes settlement since it reveals information to opposing
parties).
188
See Loewenstein & Moore, supra note 184, at 38-39.
189
See George Loewenstein et al., Self-Serving Assessments of Fairness and
Pretrial Bargaining, 22 J. LEGAL STUD. 135, 159 (1993) (identifying implications of selfserving assessments of fairness for bargaining).
2006]
PROFESSIONAL ATHLETES
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characteristics include relative performance to date,
expectation of future performance, age, and injury history.190
For example, consider that when the New York Mets
signed pitcher Kris Benson to a three-year, $22.5 million
contract at the start of the 2004 free agency period, observers
perceived the contract as “market-setting,” since it established
a contemporary value for free agent pitchers of Benson’s ilk.191
Indeed, following consummation of Benson’s contract, a
number of free agent pitchers elevated their asking prices, and
estimated their market value as greater than that of Benson,
and thus warranting a contract in excess of a three-year, $22.5
million term.192 In response, the relevant negotiating teams
tended to dismiss the Benson contract as reflective of one
team’s desperation to win—and thus its willingness to pay
above market value.193 Therefore, the “new information” of
Benson’s contract proved sufficiently ambiguous as to invite
contrasting interpretations by the negotiating parties. In fact,
several free agent pitchers and teams so disparately
internalized the Benson contract that their negotiations
reached irreparable impasses.194 Subsequently, those pitchers
initiated negotiations with new teams, and reached contracts
consistent with the market established by the Benson
contract.195 Accordingly, by potentially bifurcating existing
negotiations, a market-setting contract might establish a
barometer of varying compatibility to existing and potential
190
See, e.g., Rick Carpiniello, Free Agent Situations Are Getting Sticky, J.
NEWS, Oct. 17, 1999, at 7C (describing contract negotiations with star players in the
NHL); see also Jeffrey D. Schneider, Note, Unsportsmanlike Conduct: The Lack of Free
Agency in the NFL, 64 S. CAL. L. REV. 797 (1991) (discussing relevant characteristics
for free agent analysis).
191
See Larry Stone, Winners of Winter, SEATTLE TIMES, Jan. 25, 2005, at D1
(“[T]he pitching market was established, most GMs agree, when the Mets signed Kris
Benson to a three-year, $22.5 million contract.”).
192
See, e.g., Tyler Kepner, Age-Wary Yanks Pick Wright over Lieber, N.Y.
TIMES, Dec. 9, 2004, at D7 (noting that the Benson contract prompted free agent
pitcher Jon Lieber to increase his own contract demands).
193
See Mark Hale, Sosa in Sight: But Fat Pact Could Break Deal for Mets,
N.Y. POST, Nov. 13, 2004, at 72 (describing the desire of new Mets’ general manager
Omar Minaya to “make a splash”).
194
See, e.g., Bob Elliott, D-Backs on Spending Spree: A Day After Landing
Troy Glaus, Arizona Signs Russ Ortiz to a Four-Year, $33 Million Deal, TORONTO STAR,
Dec. 11, 2004, at S8 (citing remarks by Blue Jays’ general manager J.P. Ricciardi that
Russ Ortiz altered his contract demands with the Atlanta Braves after the Benson
contract); Todd Zolecki, Yankees’ Missed Opportunity a Plus for Phillies, PHILA.
INQUIRER, Mar. 6, 2005, at D6 (discussing how the New York Yankees refused the
revised demands of free agent pitcher Jon Lieber following the Benson contract,
leading Lieber to sign with the Philadelphia Phillies).
195
See supra note 192 and accompanying text.
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teams, and thus impair the capacity of contemporaneously
negotiating parties to identify a number within the bargaining
zone.196
B.
Evidence of Alternative Preferences Among Professional
Athletes
The preceding discussion frames player-team contract
negotiations as entirely driven by the distribution of monetary
resources. That is, it assumes that players exclusively value
financial
compensation
when
seeking
employment
opportunities. Such an assumption is commonly held among
Media and other journalists often feel
Americans.197
198
similarly.
Such framing begs an important question: Why should
society assume that professional athletes are unusually
interested in monetary wealth? Indeed, as discussed in Section
II, when individuals pursue employment opportunities, they
often identify considerable value in non-monetary forms of
“utility.”199 Such forms of utility might include objective
characteristics, such as preferred location or job title, or
intangibles, such as projected happiness or anticipated social
These ideas are also consistent with rational
status.200
decision-making, since “rationality” of choice refers to the
196
See supra notes 186-89 and accompanying text.
See Thomas Boswell, Players, Owners and Us, WASH. POST, Oct. 21, 1994,
at F1. Similarly, most Americans believe that athletes are paid too much money. Don
Walker, Baseball Slips a Bit on State Poll: Interest Drops with Attendance, MILWAUKEE
J. SENTINEL, May 26, 2003, at 6C (citing survey conducted by the University of
Wisconsin that found that 89 percent of Americans believe professional athletes make
too much money); see also, Michael Hiestand, Put a Lid on Pro Player Salaries, USA
TODAY, Sept. 2, 2004, at 3C (citing remarks by Ralph Cindrich, an NFL player agent
and former NFL player, who stated the opinion that if Americans were polled, 98
percent would say that “athletes are paid too much” money). Data suggests that
teenagers feel likewise. See, e.g., Teen Ink, February 2001 Poll: Do Baseball Players
Make Too Much Money, available at http://www.teenink.com/Poll/PastPolls.html (last
visited Jan. 4, 2006) (finding that 71 percent of teenagers believe baseball players
“make too much money”); Most Kids Look Up To Athletes: Fewer Are Influenced by
Them, 12 YOUTH MARKETS ALERT 1 (2000) (finding that 43 percent of children ages ten
to seventeen believe that athletes appear in ads for charities to get paid and improve
their personal image, rather than caring about the cause).
198
See, e.g., Mark Patinkin, For Too Many Pro Athletes, It’s All About the
Money, PROVIDENCE J., Feb. 20, 2005, at A2 (regarding the NHL Lockout of 2004-05 as
evidence of greed among NHL players); Bob Raissman, Going Ratings Bad News for
Boss, DAILY NEWS (New York), June 11, 2000, at 67 (“This is [a sports] era where it’s
all about the money.”).
199
See discussion supra pp. 1462-63.
200
See id.
197
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1497
methodological pursuit of personal preferences, which vary by
individual. Thus, unless professional athletes prove somehow
“more greedy” than the average person, they should exhibit,
with similar frequency, a preference for non-monetary forms of
utility when contemplating employment opportunities.
A review of expressed player motivations for accepting
offers reveals a wide-range of preferences. Although many
athletes pursue the most lucrative offer available, many others
opt for less remunerative opportunities. Through the following
illustrations, this Article will explore alternative optimal
preferences to monetary aggrandizement, and how professional
athletes often embrace those preferences. In doing so, this
Article will attempt to explain behavioral tendencies among
professional athletes and how those athletes navigate
preferences when contemplating contractual opportunities. To
begin this analysis, this Article will examine a question framed
strikingly dissonant with popular expectations: Why do many
professional athletes choose to stay in a setting when playing
elsewhere would pay substantially more?
1. Environmental Preference: Remaining in Place
According to many economists, individuals find it
efficient to preserve familiar settings, such as location or
personal contacts, and they attribute appreciable value to that
preservation.201 Similarly, psychologists often maintain that
individuals derive confidence from acquainted surroundings,
and that such confidence influences their decision-making.202
This phenomenon is sometimes described as “regional affinity”
or “hometown bias,” whereby individuals internalize intrinsic
201
See, e.g., RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST
EMPLOYMENT DISCRIMINATION LAWS (1992) (assessing value of familiarity in decisionmaking among individuals in hiring capacities); see also J.D. Trout & Shahid A.
Buttar, Resurrecting “Death Taxes”: Inheritance, Redistribution, and the Science of
Happiness, 16 J.L. & POL. 765, 802 n.118 (2000) (describing the psychological cost of
those who fled the United States to Canada to avoid service in the Vietnam War).
202
See ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY 89 (1996) (noting that
college students perform worse on tests taken in unfamiliar surroundings); see also
Peter J. Cohen, How Shall They Be Known? Daubert v. Merrell Dow Pharmaceuticals
and Eyewitness Identification, 16 PACE L. REV. 237, 248 (1996) (describing how
individuals function better in familiar surroundings); D. Michael Risinger & Jeffrey L.
Loop, Three Card Monte, Monty Hall, Modus Operandi and “Offender Profiling”: Some
Lessons of Modern Cognitive Science for the Law of Evidence, 24 CARDOZO L. REV. 193,
275 n.434 (2002) (quoting JOHN E. DOUGLAS ET AL., CRIME CLASSIFICATION MANUAL §
132 (1992)) (describing how criminal behavior is in part motivated by confidence
through familiar surroundings).
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value in remaining in a set location, and perceive themselves
as better off by doing so.203
Professional athletes sometimes evince striking value in
the preservation of their surroundings. To illustrate, consider
Edmonton Oilers goaltender Tommy Salo, who, in 2000, agreed
to a three-year contract extension worth $10.4 million.204
Although impressive, his contract likely reflected a market
discount of approximately $4 million, as he declined the
opportunity to pursue unrestricted agency at the earliest date
in his career.205 Salo, however, articulated a preference for
staying in Edmonton, as it reminded him of his native land,
Sweden, and its citizens reminded him of Swedes.206 His
preferences illuminate how a professional athlete may
internalize “wealth” as a concept inclusive of non-economic
terms, including preservation of surroundings.
Similarly, during his nineteen-year career with the
Cincinnati Reds, shortstop Barry Larkin, a Cincinnati native,
identified meaningful subjective value in maintaining existing
conditions. Indeed, during that time, Larkin declined several
more lucrative opportunities to play elsewhere, reasoning that
his continued stay in Cincinnati would exceed in value.207
Intriguingly, the subjective benefit of preserving familiarity
came with a subjective cost: throughout his career, Larkin
endured disapprobation from fellow players and their agents
for accepting less compensation to stay in Cincinnati, as doing
so may have diminished the market value for players of his
Thus, the opportunity cost of forgoing enhanced
ilk.208
compensation may include not only the difference in tangible
203
See Marcel Kahan & Linda Silberman, The Inadequate Search for
“Adequacy” in Class Actions: A Critique of Epstein v. MCA, Inc., 73 N.Y.U. L. REV. 765,
775 n.50 (1998).
204
See Mario Annicchiarico, Stop Sign: Salo Takes Long-Term Lease on Oilers’
Cord Cottage, EDMONTON SUN, Nov. 3, 2000, at SP1.
205
Id. (citing comments by Salo’s agent).
206
Id. (quoting Salo, “[My fiancée and I] both like it here, it’s almost like back
home . . . . Friendly people, a good club and I’m happy to be here. That’s why I signed
the contract.”).
207
See, e.g., Hal McCoy, Reds Sign MVP Larkin Through 2000, DAYTON DAILY
NEWS, Jan. 3, 1996, at 1D (quoting Larkin: “I love Cincinnati—my wife (Lisa) and I are
both are [sic] from here. I’m happy here and I’ve been treated well. The Reds have
been good to me. And I didn’t want to have to test the free agent market after next
season.”).
208
See Hal McCoy, Larkin Feels Asking Price Is Fair, DAYTON DAILY NEWS,
July 20, 2000, at 1D (quoting Larkin: “[B]ecause I signed for less money when I signed
my contracts in the past . . . I caught a lot of grief from guys around the league and
other agents for signing for under value.”).
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PROFESSIONAL ATHLETES
1499
compensation, but also the “cost” of coping with hard feelings
from peers who are more interested in financial recompense.
Other professional athletes indicate a preference to stay
in a location because of positive relations with teammates and
coaches, coupled with uncertainty as to whether such relations
may manifest in other settings. To illustrate, when Teemu
Selanne re-signed with the San Jose Sharks in 2002, he
accepted a pay reduction of nearly $3 million from his prior
annual salary of $9 million, even though, as an unrestricted
free agent, a number of teams were offering to pay him more
than $9 million per year.209 At the time, the cash-strapped
Sharks lacked the budgetary resources to pay Selanne his
market value, thus forcing him to compare the subjective value
of remaining a member of the Sharks with the subjective value
of playing elsewhere for more money.210 In explaining his
decision to re-sign, Selanne described how, over the course of
his eleven-year career, he had become increasingly appreciative
of team camaraderie, as well as the feeling of playing for a
“classy organization,” and that such “personal goals” proved
greater in value than additional millions of dollars.211
Reflecting upon Selanne’s decision to forgo several million
dollars, Sharks’ general manager Dean Lombardi noted, “this
is clearly a case where money was not important.”212
In exploring the role of alternative preferences among
professional athletes, loyalty may offer a useful corollary to
positive relations with teammates and coaches.
As a
behavioral concept, “loyalty” refers to a continuous cognitive
affirmation of a particular entity, such as a nation, employer,
or team, and its continuousness results from the feelings of
Continuous cognitive
well-being that it generates.213
affirmation, however, tends to trigger suppression or
obfuscation of negative associations, while promoting the
exaggeration or even invention of favorable aspects.214 More
209
See Robin Brownlee, Selanne’s a Fine Fit in San Jose: Teemu Enjoying Life
in Fast Lane with Sharks, EDMONTON SUN, Oct. 18, 2002, at SP2.
210
Id.
211
Id. (quoting Selanne, “I could have got more money other places, but you
have to see the whole picture.”).
212
See Selanne Spurns East to Stay with Sharks, OTTAWA SUN, July 6, 2002,
at 56.
213
See generally STANLEY MILGRAM, OBEDIENCE TO AUTHORITY (1974).
214
Id.; see also Erwin Chemerinsky, Opening Closed Chambers, 108 YALE L.J.
1087, 1103-04 (questioning the desirability of loyalty when Supreme Court clerks
refrain from discussing their experiences on the Court); Randall Morck, Behavioral
Finance in Corporate Governance-Independent Directors and Non-Executive Chairs,
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simply put, loyal persons tend to ignore the bad and focus on
the good of their object of loyalty, and they do so because it
makes them happy.
Considering the subjective value of happiness
engendered by loyalty, perhaps it should come as no surprise
that certain professional athletes identify a duty of loyalty to
their team as a rationale for accepting less compensation. To
illustrate, consider the decision-making process of St. Louis
Cardinals pitcher Matt Morris, who, in signing a three-year,
$27 million contract in January 2002, accepted a steep
hometown discount.215 At the time, the 26-year old Morris had
recently completed a dominant, 22-win season and was eligible
to become a free agent at the conclusion of the 2002 season,
when he may have obtained twice the salary on the open
market.216 Though acknowledging that he “definitely left
money on the table,” Morris highlighted a sense of loyalty to
the team, particularly since it had “always treated [him] well”
and helped him recuperate from injuries.217 For Morris, this
sense of loyalty may have been worth $27 million, thus
illuminating the material degree of subjective value associable
with alternative preferences.
Professional athletes also occasionally cite family
considerations as a rationale for remaining in a location, as
some are willing to sacrifice meaningful compensation in order
to stay in close proximity to family members. For instance,
during the 2002 MLB season, Tampa Bay Devil Rays’ first
baseman Fred McGriff initially refused to waive a no-trade
clause in his contract after the team had agreed to trade him to
the Chicago Cubs.218 At the time, the Devil Rays were in last
place, while the Cubs were positioning themselves for a World
Series run. Along with the opportunity to join a contending
Harvard Institute Economic Research Discussion Paper 2037, at 3 (2004), available at
http://post.economics.harvard.edu/hier/2004papers/HIER2037.pdf (discussing risks of
loyalty among corporate officers).
215
See Rick Hummel, Morris Says Cards Were Fair in Negotiations on
Contract, ST. LOUIS POST-DISPATCH, Jan. 5, 2002, at 18.
216
Id. In fact, Morris finished third in the balloting for the 2001 Cy Young
Award. See Baseball-Reference.com, Awards Voting for 2001, http://www.baseballreference.com/awards/awards_2001.shtml (last visited Jan. 4, 2006); see also Bernie
Miklasz, Rams Wouldn’t Mind Meeting “Someone New” in Playoffs, ST. LOUIS POSTDISPATCH, Jan. 5, 2002, at 3 (describing how Morris “could have made a lot more
money if he’d waited a season to test the free-agent market”).
217
See Hummel, supra note 215.
218
See Stephen Cannella, Inside Baseball, SPORTS ILLUSTRATED, Aug. 6, 2001,
at 70.
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PROFESSIONAL ATHLETES
1501
team, the Cubs also offered to raise McGriff’s annual salary
from $6.75 million to $7.25 million, as well as extend his
contract for an additional year at a salary of $8.5 million—an
extraordinary economic conferral for a 39-year old first
baseman.219 McGriff, however, posited the value of remaining
with his wife and two young children as greater in value than
playing for a contender and an enhancement in pay: “I get to
see my family all the time [in Tampa]; I’m happy.”220
Nevertheless, such subjective value apparently contained a
discernable limit: McGriff agreed to the trade 19 days later,
after the Cubs had offered even more money, and apparently to
a sufficient level for McGriff to value waiving his no-trade
clause over remaining with his family in Tampa.221
2. Environmental Preference: Moving to a Preferable
Setting
Professional athletes also choose to play in new locales
that satisfy certain wants over other opportunities that might
pay more. In some instances, professional athletes yearn to
return home, or to be close to family; in others, they seek to
experience characteristics of the setting, such as favorable
weather, cultural offerings, or societal tendencies. Social
psychologists sometimes describe the desire to move to a
particular location as part of one’s “active agen[cy],” whereby
individuals interpret their preferences to be associative of a
new locale.222 As evinced by the decision-making methodology
of certain free agents, active agency appears highly salient in
professional sports.
To illustrate, consider the much-queried decision of
Utah Jazz power forward and unrestricted free agent Donyell
219
Id. Generally, position players in their late thirties and early forties have
difficulty securing such exorbitant contracts. See, e.g., Susan Vinella & John Mangells,
Nothing Personal: The Indians’ Analysis Shows It Makes Little Business Sense to Offer
Long Contracts to Older Players, PLAIN DEALER, Sept. 22, 2003, at A1. But see Gordon
Edes, Dodgers Break Bank to Land Ace Brown, BOSTON GLOBE, Dec. 13, 1998, at E1
(citing concern by Sandy Alderson, executive vice president of baseball operations for
Major League Baseball, that players in their late thirties and early forties will
eventually obtain lucrative contracts with more regularity).
220
See Bruce Miles, Cubs Not Giving Up Hope on McGriff, CHI. DAILY
HERALD, July 13, 2001, at 1 (emphasis added).
221
See Cannella, supra note 218, at 70. McGriff claimed that he ultimately
agreed to the trade because he “didn’t want to make a hasty decision. I knew I had
time to think about it. I wanted to analyze things.” Id.
222
See Dorothy Rowe, Watching You Watching Me, 10 OPEN MIND 45, 50
(2003).
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Marshall during the 2002 off season: he elected to sign a threeyear, $14 million contract with the Chicago Bulls, even though
he was offered a four-year, $27 million contract to stay with the
Jazz.223 In explaining his decision, Marshall stated a preference
for living in Chicago and experiencing its culture over living in
Salt Lake City and continuing to experience its culture, and
that such a preference was worth more to him than the
significant disparity in pay.224 Paradoxically, that same offseason, Philadelphia 76ers power forward and fellow
unrestricted free agent Matt Harpring signed a four-year
contract with the Jazz worth $18.5 million, or $2.5 million less
than he was offered by the Bulls for the same length of
contract.225 In other words, while Marshall was willing to
accept less money in order to leave Utah for Chicago, Harpring
was willing to take less to move there instead of Chicago.
Similarly influential may be preference for warm
weather, particularly after playing in cold weather
environments for some years. The decision-making process of
nose tackle Fred Smerlas in 1990 demonstrated this concept.
At the time, Smerlas, who had played the previous eleven
seasons with the Buffalo Bills, was an unrestricted free agent
in receipt of three offers: a guaranteed, two-year, $1 million
offer from the New England Patriots; a non-guaranteed, oneyear, $650,000 offer from the Bills; and a non-guaranteed, oneyear, $500,000 offer from the San Francisco 49ers.226 Smerlas
selected the 49ers’ offer, even though it was the least lucrative,
223
See Rich Evans, Marshall Gets Less $$$ to Sign with Chicago, DESERET
NEWS, Aug. 17, 2002, at D5.
224
See Lacy J. Banks, Marshall Not Money Hungry, CHI. SUN-TIMES, Aug. 20,
2002, at 99 (quoting Marshall: “One reason was [that Chicago is] centrally located for
myself, for my family as well as for [my fiancée’s] family” and, despite passing up $13
million in leaving the Utah Jazz, “[t]his is a decision that is going to . . . make my
family happy.”); see also Tim Buckley, No Donyell? Marshall’s Agent Says Talks with
Jazz Are Stalled, DESERET MORNING NEWS, July 20, 2002, at D1 (citing comments from
Marshall’s agent that his client was concerned about “quality of life” and that he
expressed a willingness to accept much less in compensation in order to obtain it
elsewhere). The following year, Marshall was traded to the Toronto Raptors. Roman
Modrowski, Rose, Davis Headline Bulls-Raptors Trade, CHI. SUN-TIMES, Nov. 30, 2003,
at 114.
225
Lacy J. Banks, Harpring Signs with Jazz, CHI. SUN TIMES, Aug. 16, 2002,
at 143; see also K.C. Johnson, Summer Snub Doesn’t Faze Harpring, CHI. TRIB., Nov.
24, 2002, at 13 (noting that Harpring also rejected a more lucrative contract to stay
with the 76ers).
226
Larry Weisman, Smerlas, 49ers Agree to Terms, USA TODAY, Mar. 29,
1990, at 7C. Although the 49ers’ offer, unlike the offers from the Patriots and Bills,
contained the prospect of a bonus, it lacked the guarantee and total value of the
Patriots’ offer, and the Bills’ base salary was higher. Id. For those reasons, Smerlas’
agent, Jack Mula, acknowledged “we took less money.” Id.
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PROFESSIONAL ATHLETES
1503
and even though it lacked a guarantee.227 According to his
representative, Jack Mula, Smerlas valued the “warm weather”
of San Francisco in distinguishing between the offers.228
Neither Smerlas nor other professional athletes are especially
unique in identifying worth in warm weather; scientific data
suggests seasonal and weather changes may affect mood and
happiness, thus motivating individuals to pursue settings most
compatible with weather preferences.229
Other professional athletes prefer settings that ascribe
to normative desires, and that also reflect appealing contrasts
to existing conditions. For instance, when free agent outfielder
Kirk Gibson signed with the Kansas City Royals in 1990, he
declined several offers of greater economic value, reasoning
that, after three years of living in Los Angeles, he most
preferred a relaxed setting in a relatively small city.230
Similarly, he expressly desired an unhurried culture with midwest values.231 Gibson’s choice suggests that active agency may
be fungible, and influenced by mirrored reflections of current
conditions.
Such a disposition appears corroborative of
findings that individuals often proscribe value to new settings,
simply because those settings contrast to existing and
unfavorable circumstances.232 This is sometimes called the
“grass is always greener” phenomenon.233
227
Id. Unlike in the MLB, the NBA, or the NHL, player contracts in the NFL
may be non-guaranteed. See generally Adam W. Heller, Creating a Win-Win Situation
Through Collective Bargaining: The NFL Salary Cap, 7 SPORTS LAW. J. 375, 389-97
(2000).
228
E-mail from Jack Mula, Chief Administrative Counsel, New England
Patriots, to the author (Mar. 30, 2005) (on file with author).
229
See Leo Sher, Seasons and the Brain, 358 LANCET 2092 (2001) (describing
research findings pertaining to “seasonal affective disorder,” a disorder causing
individuals to become depressed when exposed to prolonged cold or dreary weather);
see also Timo Partonen & Jouko Löonnqvist, Seasonal Affective Disorder, 352 LANCET
1369 (1998) (recommending greater exposure to warm weather and sunlight as best
remedies to seasonal affective disorder).
230
See Royals Sign Kirk Gibson, UNITED PRESS INT’L, Dec. 1, 1990 (Lexis
News Wire).
231
Id. (quoting Gibson, “I guess I’ve always been kind of a country boy.
Coming from Los Angeles, I know I’ll never have to sit in six lanes of traffic at 1 o’clock
in the afternoon to go six miles in 35 minutes.”).
232
See, e.g., Barbara Millar, Relocation: Where the Grass Is Always Greener,
NURS. TIMES, June 14, 2001, at 28, 28-29 (2001) (describing methodology of nurses
when they seek to move to new hospitals and new cities); Edilberto O. Pelausa, Moving
to America: Is the Grass Really Greener?, 31 J. OTOLARYNGOLOGY 65, 73-75 (2002)
(discussing dissonance between expectations and realities for foreign otolaryngologists
who move to the United States).
233
Miller, supra note 232, at 29 (on file with author).
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The allure of playing on a championship-contending
team also attracts professional athletes to sacrifice fortune.
This is especially apparent among those professional athletes
nearing the end of their careers. Consider, for instance, the
decision of unrestricted free agent Alonzo Mourning to sign a
four-year, $22 million contract with the New Jersey Nets in
2002.234 Though he was presented with a more lucrative offer
from the Dallas Mavericks, Mourning believed that playing
with the Nets would provide a greater probability of winning a
championship.235 In the twilight of his career, Mourning
identified particular value in this motivation, as he deemed a
championship the critically missing piece of his professional
For that reason, Mourning expressed a
biography.236
willingness to sacrifice meaningful economic remuneration in
exchange for enhanced probability of team success.237
Professional athletes also seek new settings that might
enhance perceived personality traits. To illustrate, consider
the decision-making process of pitcher Eddie Guardado, who,
as an unrestricted free agent in 2003, opted to sign with the
Seattle Mariners for less compensation than he was offered by
teams in larger media markets, including the Boston Red Sox
and the Chicago Cubs.238 Significantly, Guardado articulated a
predilection for an environment in which he would “not [be in]
the limelight.”239 Similarly, he aspired a setting where media
commentary would prove less hurtful to his family.240 Thus,
Guardado appeared highly cognizant of the relationship
between playing environment and happiness, and he placed
corresponding value in that recognition when choosing between
offers.
234
Charlie Nobles, Mourning Shows the Rust, but Dreams About the Ring,
N.Y. TIMES, July 14, 2003, at D2.
235
See Mike Celizic, Give Nets Credit for Major Coup, MSNBC SPORTS, July
11, 2003, http://msnbc.msn.com/id/3074478/.
236
See Nobles, supra note 234.
237
See Celizic, supra note 235 (quoting Mourning: “[I]t’s not just about the
money . . . . It’s about winning, too.”). For a similar instance, consider Brett Hull’s
decision to sign with the Detroit Red Wings in 2001. He signed for less because he
perceived the opportunity to win a Stanley Cup as more valuable than millions extra in
compensation. See Hull Joins Hasek, Robitaille in Detroit, ESPN.COM, Aug. 23, 2001,
http://espn.go.com/nhl/news/2001/0821/1242288.html.
238
See Red Sox to Hire Francona Today, SEATTLE TIMES, Dec. 4, 2003, at D2;
Mike Dodd, Setup Men Face High-Pressure Relief with Low Pay, USA TODAY, Mar. 26,
2004, at 1C. Guardado signed a three-year, $13 million contract with the Mariners.
Dodd, supra, at 1C.
239
Dodd, supra note 238, at 1C.
240
See Red Sox To Hire Francona Today, supra note 238, at D2.
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Lastly, by externally imposing alternate preferences,
the families of professional athletes may also influence
decision-making of free agent opportunities.
Take, for
instance, defensive end Sean Jones, who, as an unrestricted
free agent in 1996, attracted significant interest from NFL
teams.241 He ultimately chose to sign with the Green Bay
Packers, even though he was offered more money by other
teams.242 Jones revealed that his choice was “pretty much [his]
wife’s decision,” as she required that he to play in a city where
there would be comparatively few “late night” options for
players.243 Indeed, Mrs. Jones wanted assurance that her
husband “would be home at a reasonable time of night.”244
3. Risk Aversion
A separate, non-geographic rational preference also
deserves discussion: risk aversion, or the willingness to pay
more money (or accept less money) to avoid participation in a
risky activity, even when the expected value of the activity is
favorable.245 As captured by the adage, “A bird in hand is worth
two in the bush,” risk-aversion signifies that the prospect of
losing a dollar already owned weighs more heavily than the
More
chance of gaining a dollar not yet owned.246
241
David Aldridge, Green Bay’s Low-Key High Life; Big-time Athletes Adjust to
Small Town, WASH. POST, Jan. 13, 1996, at F3.
242
Id.
243
Id.
244
Id. For perhaps a similar illustration of familial influence, consider
remarks by former Boston Red Sox great Johnny Pesky, for whom Fenway Park’s
“Pesky Pole” is named, concerning his decision to sign with the Red Sox in 1940:
Back then, you could sign with anybody—there was no draft yet. There were
a number of teams interested in me, and some offered more money than
Boston. My mother and father wanted me to sign with the Red Sox, though,
because their scout brought her flowers when he came to the house—and
bourbon for my father. They were immigrants, and even though it was the
Depression, that was more important than the extra money. I’m glad it
worked out the way it did.
David Laurila, Interview with Johnny Pesky, RED SOX NATION, May 29, 2004,
http://www.redsoxnation.net/forums/index.php?showtopic=5219.
245
See RICHARD A. BREALEY, AN INTRODUCTION TO RISK AND RETURN FROM
COMMON STOCKS 47-54 (1969) (explaining the relationship between risk and value);
Lynn M. Stout, Why the Law Hates Speculators: Regulation and Private Ordering in
the Market for OTC Derivatives, 48 DUKE. L.J. 701, 736 (1999) (describing how
individuals with greater tolerance for risk can reap benefits by accepting risks avoided
by others).
246
See JOHN MUELLER, CAN FINANCIAL ASSETS BEAT SOCIAL SECURITY? NOT
IN THE REAL WORLD 4 (1997), available at http://heartland.org/pdf/80785B.pdf. See also
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formalistically then, a risk-averse individual would prefer
suffering a certain harm of $100 to suffering a harm of $1,000
with a 10 percent probability of occurring, in spite of their
identical expected values.247 Such decision-making manifests
itself across economic, political, and legal spectrums, and
affects both individual and institutional choices.248
Professional athletes occasionally evince risk aversion
in explaining their acquiescence to below-market contract
offers. Cleveland Browns quarterback Kelly Holcomb is one
such player. Prior to the start of the 2002 NFL season,
Holcomb served as the primary backup quarterback to starting
quarterback Tim Couch.249 At that time, Holcomb was 29 years
old and appeared destined for a career as a backup
quarterback.250 The Browns offered him a two-year contract
extension worth nearly $2.2 million251, which essentially
reflected the going-rate for backup quarterbacks.252
Significantly, Holcomb was set to become an
unrestricted free agent at the end of the 2002 season.
Considering that typically between 10 and 20 percent of
starting quarterbacks miss more than five games each year due
to injury, and that a similarly meaningful percentage play
poorly and are benched, Holcomb, like any backup quarterback,
DONALD N. MCCLOSKEY, THE APPLIED THEORY OF PRICE 65-70 (2d ed. 1985) (providing
economic description of risk aversion).
247
See Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L.
REV. 961, 1074 (2001) (explaining risk aversion in the insurance context). See also
Mark F. Grady, Proximate Cause and the Law of Negligence, 69 IOWA L. REV. 363, 36667 (1984) (discussing how risk aversion among townspeople affects their preferences for
local policies).
248
See Richard Birke, Reconciling Loss Aversion and Guilty Pleas, 1999 UTAH
L. REV. 205, 209 (1999) (reconciling risk aversion among criminal defendants with
insufficient plea bargain offers by prosecution); Albert J. Boro, Jr., Banking Disclosure
Regimes for Regulating Speculative Behavior, 74 CAL. L. REV. 431, 451 (1986)
(explaining how fiduciary duties and the threat of legal liability encourages risk
aversion among institutional investors); David A. Yalof, Dress Rehearsal Politics and
the Case of Earmarked Judicial Nominees, 26 CARDOZO L. REV. 691, 697 (2005)
(discussing risk aversion of President Bill Clinton when selecting judicial nominees for
federal appellate positions).
249
American Football Conference Team Notes, SPORTING NEWS, July 29, 2002,
at 51.
250
Id. (describing Holcomb in rather modest terms, “Kelly Holcomb is a steady
backup who won’t win games but won’t lose them either”).
251
See Mary Kay Cabot, Former Browns Pay Disorderly Conduct Fine, PLAIN
DEALER, Apr. 30, 2002, at D7 (noting that the contract included a signing bonus of
$325,000 and base salaries of $825,000 and $975,000, for a total value of $2,175,000).
252
See, e.g., Mark Eckel, Brian’s Song, TIMES OF TRENTON, Aug. 7, 2005, at
C9 (noting that, in 2005, NFL back-up quarterbacks tend to make at least $1.4 million
per year).
2006]
PROFESSIONAL ATHLETES
1507
could have declined a market-value extension, and chosen
instead to “gamble” that Couch would either suffer injury or
play poorly, thus elevating Holcomb to the starting position.253
Indeed, in light of established NFL precedent, just one start
may have offered the opportunity to catapult his market value:
quarterback Rob Johnson had only one start in three seasons
with the Jacksonville Jaguars between 1996 and 1998, but
played very well in the start, prompting the Buffalo Bills to
trade for him, and sign him to a five-year, $25 million
contract.254
On the other hand, Holcomb was presented with a
contract worth almost $2.2 million, and chances were, he would
not play more than a few plays during the 2002 season, and
thus not elevate his market value. Indeed, Couch had proven
remarkably durable, not missing a single start in the 2001
season.255 Moreover, Holcomb recognized the prospect of injury
in practice or otherwise during the 2002 season, and would
have regretted not signing the extension in the event of such
occurrence.256 Presented with these risk assessment variables,
Holcomb elected to sign the contract extension.257
During the last preseason game for the Browns in 2002,
Holcomb may have suddenly felt regret. In that game, Couch
suffered an elbow injury that would cause him to miss the first
two games of the regular season. Holcomb went on to start
those two games, as well as play in most of the season’s third
game, and would play extraordinarily well, throwing nine
touchdowns and just two interceptions, while leading the NFL
in Quarterback Rating.258 When confronted with speculation as
253
See, e.g., Will McDonough, Ironic Twists in Bledsoe Saga, BOSTON GLOBE,
Apr. 28, 2002, at D2 (noting that one or two starting quarterbacks is typically injured
in the preseason, and that several others tend to “fail miserably”).
254
See Larry Weisman, Bills’ Playbook a Work in Progress, USA TODAY, Aug.
5, 1998, at 10C.
255
See ESPN.com, Green Bay Packers, # 2 Tim Couch-QB,
http://sports.espn.go.com/nfl/players /stats?statsId=4649 (last visited Jan. 4, 2006).
256
For instance, during the 1994 NFL season, Tampa Bay Buccaneers backup
quarterback Trent Dilfer was set to ascend to the starting quarterback position, but
was injured in practice, thus delaying his ascension. See David Elfin, Growing Pains:
Rookies Schuler, Dilfer Find Life Tough in NFL, WASH. TIMES, Dec. 3, 1994, at C1.
257
See Tony Grossi, Holcomb Takes What’s Dealt: Backup Quarterback Doesn’t
Regret Signing Contract Extension, PLAIN DEALER, Nov. 17, 2002, at C14.
258
See id. “Quarterback rating” is a composite statistic based on four criteria:
1) percentage of completions per attempt; 2) average yards gained per attempt;
3) percentage of touchdown passes per attempt; and 4) percentage of interceptions per
attempt.
See
NFL
Quarterback
Rating
Formula,
NFL
News,
http://www.nfl.com/news/981202qbrate.html (last visited Jan. 4, 2006).
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to how much more money he could have earned had he declined
the contract extension and pursued free agency, Holcomb noted
a conscious internalization of risk: “It’s that old saying, one
bird in hand is better than two in the bush.”259 In other words,
by signing the contract extension, Holcomb prescribed
subjective value to the nullification of risk, and that subjective
value was worth more to him than the difference in objective
value between the contract extension and his prospective free
agent status, discounted by risk of injury, poor performance, or
other impairments of play.260
Risk aversion also emerges when players attempt to
forecast market changes. For instance, when former Red Sox
outfielder Mike Greenwell declined to elect for free agency in
1994, and instead surprisingly agreed to a two-year, $7.3
million contract extension, he highlighted a market strategy
Specifically, Greenwell
based on his risk preferences.261
anticipated that because of public outrage associated with the
baseball players’ strike in 1994, fans would soon turn away
from baseball in droves, thus contracting the value of the game
and leading to diminished player salaries.262 Consequently,
Greenwell perceived a discounted contract in an existing
market as more valuable than a market-value contract in an
uncertain and future market.
Unfortunately for Greenwell, his market projections
would prove largely erroneous. Even though MLB player
salaries dipped 1.3 percent from 1994 to 1995,263 they increased
by 3.5 percent from 1995 to 1996, followed by a 17.0 percent
Nevertheless, his expressed
surge from 1996 to 1997.264
259
Id.
Recent economic analysis suggests that risk aversion among professional
athletes also affects contracting of off-court responsibilities, such as extent of team
monitoring of player activities. See Örn B. Bodvarsson & Raymond T. Brastow, Do
Employers Pay for Consistent Performance?: Evidence from the NBA, 36 ECON. INQUIRY
145, 152-58 (1998).
261
See Greenwell Remains in Red Sox Tradition, N.Y. TIMES, Mar. 17, 1994,
at B12.
262
See Nick Cafardo, Greenwell Not Holding a Grudge, BOSTON GLOBE, Apr.
3, 1995, at 46 (quoting Greenwell: “People were wondering . . . why I took the offer they
made. Well, I’m not that stupid. I’m a little smarter than people think. I knew what
was coming. Right now, I’m extremely happy I signed the contract that I did when I
did.”).
263
See Baseball Salary Decline, WASH. POST, Apr. 30, 1995, at D6 (also noting
that while many players took pay cuts following the strike of 1994, the top stars
continued to observe their salaries surge considerably).
264
See Erik Brady & David Leon Moore, Big Sports, Bigger Bucks: Just How
High Can Players’ Salaries Go?, USA TODAY, Apr. 3, 1997, at 1A.
260
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1509
rationale for negotiating a below-market value contract
extension suggested a conscious, tactical strategy based on risk
preferences.
C.
Evidence of Cognitive Biases and Heuristics
The preceding subsection described alternative
preferences among professional athletes when contemplating
employment opportunities. In doing so, it largely endorsed
rational choice theory: individuals appear to rank preferences,
and then, as reflected in their choices, maximize those
preferences in their decision-making process. Thus, when
professional athletes choose a “discount” offer, it simply reflects
a conscious ranking of non-monetary preferences ahead of
remunerative preferences.
Doubtless, a rational choice model strikes an appealing
rubric, since it more broadly suggests that individuals act
rationally when making decisions, and that such decisions
reflect conscious preferences.
Moreover, given societal
skepticism towards the intellectual capacity of most
professional athletes,265 typical individuals might infer
confidence from the capacity of professional athletes to engage
in rational decision-making. In short, based on the rationalchoices of professional athletes, individuals appear to possess
not only the capacity to navigate through difficult professional
decisions, but also the tendency to select the “optimal” choice.
This analysis, however, is incomplete.
Indeed, as
discussed in Section III, cognitive biases and heuristics,
unbeknownst to decision-makers, frequently disturb decisionmaking processes. Perhaps then it should come as no surprise
that professional athletes appear likewise influenced by choice
distortions.
1. Framing Effects
Framing effects suggest that varied wording of equallyvaluable options can induce individuals into valuing them
differently.266 How might framing effects influence professional
265
See Timothy Davis, The Myth of the Superspade: The Persistence of Racism
in College Athletics, 22 FORDHAM URB. L.J. 615, 631 (1995) (describing how, even when
they evince high intellectual capacity, collegiate athletes are frequently discouraged by
scholastic advisors from taking “hard” classes, and instead enrolled in less burdensome
courses).
266
See discussion supra p. 1470 and accompanying notes.
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athletes when selecting employment opportunities? Consider
the influence of team negotiators, such as general managers or
owners, and how some adroitly utilize invention, red herrings,
and props to spawn illusory distinctions.
Framing effects among professional teams are especially
evident in the NBA, where salaries have maximum limits,
meaning that teams often extend identical offers to premiere
free agents.267 Without the potential of distinguishing financial
terms, NBA teams routinely employ aggressive recruiting
tactics, and these tactics sometimes amplify trivial distinctions.
For instance, when the Chicago Bulls courted unrestricted free
agents in the summer of 2001, they arranged for a band,
assorted mascots, and numerous front office officials to greet
each player upon his arrival at O’Hare International Airport.268
Bulls’ general manager Jerry Krause had hoped that such a
marketing strategy would frame the Bulls as a franchise of
particular “substance” and player care.269
Similarly, to promote distinction in relative levels of
interest, NBA general managers are known to call free agents
at the very first moment when teams are allowed to contact
free agents. This moment usually occurs at 12:01 A.M. of an
early July morning.270 Occasionally, this strategy appears
influential in free agents’ decision-making. For instance, in
explaining his decision to sign with the New York Knicks in
2004, free agent guard Jamal Crawford highlighted an
enthusiastic phone call that he had received from New York
Knicks’ general manager Isiah Thomas at the very first
moment when teams could contact free agents.271 Crawford
267
See discussion supra pp. 1488-89 and accompanying notes.
See Lacy J. Banks, Krause Made the Right Call Targeting Jones, CHI. SUNTIMES, July 14, 2000, at 138.
269
Id. This strategy did not work, however, as none of the five primary free
agents Krause pursued (i.e., Tim Duncan, Tracy McGrady, Grant Hill, Eddie Jones,
and Tim Thomas) signed with the Bulls, and they instead chose identical offers from
other teams. See Fred Mitchell, Local Agent Discounts Talk of Anti-Bulls Conspiracy,
CHI. TRIB., Dec. 12, 2000, at N3.
270
This date varies, depending upon the NBA calendar, but usually occurs
between July 1 and July 15.
271
See Mike Lupica, Isiah Giving Crawford His Shot to Score with Fans,
DAILY NEWS (New York), Nov. 3, 2004, at 74. Perhaps more often, however, this
strategy proves immaterial.
See, e.g., Mark Montieth, O’Neal to Visit Spurs,
INDIANAPOLIS STAR, July 2, 2003, at 1D (noting that although Isiah Thomas personally
called unrestricted free agents Jermaine O’Neal and Reggie Miller, neither of them
signed with the Knicks); Liz Robbins, Kidd’s a Free Agent, and Phones Ring, N.Y.
TIMES, July 2, 2003, at D6 (describing unsuccessful efforts by the Dallas Mavericks and
San Antonio Spurs to recruit free agent Jason Kidd, and that such efforts entailed
calling him at 12:01 A.M.).
268
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regarded the call as instrumental in helping him distinguish
between identical offers.272
Framing effects also emerge in other professional sports
contexts, albeit more conjecturally. For instance, when the
New York Mets successfully pursued free agent pitcher Pedro
Martinez in 2004, Mets’ general manager Omar Minaya is
thought to have intimated to Martinez that since he, like
Martinez, was of Dominican descent, Martinez could “trust”
him more than Theo Epstein, Minaya’s counterpart on the
Boston Red Sox and for whom Martinez had been playing.273
Such fact patterns undermine the rational choice model, and
suggest that choices may not reflect a pristine maximization of
utility or relative strength of preferences, but rather
vulnerability to unappreciated factors, such as sales pitches
and manipulative overtures.
2. Confirmation Bias
Similarly influential is the effect of confirmation bias,
whereby individuals are subject to ignore or discount
information that challenges existing beliefs.274 This disposition
occasionally arises when professional athletes encounter a
uniquely positive experience on a particular team, and are
thereafter
prone
to
positively
interpret
ambiguous
circumstances and to dismiss negative associations. Since they
are prone to misinterpret signals and cues, professional
athletes affected by confirmation bias may unknowingly
dismiss
salient—and
thus
valuable—distinguishing
characteristics.
272
Lupica, supra note 270, at 74.
See Filip Bondy, Pedro Plays N.Y. Way in City, Everyone Has Own Set of
Rules, DAILY NEWS (New York), Dec. 17, 2004, at 104; see also Gordon Edes, Martinez
Is Starting Already in Mets Camp, He’s Starting Already!, BOSTON GLOBE, Feb. 16,
2005, at F1 (citing remarks by Martinez that he gave his word to Minaya while he
could not do the same to Epstein, who he believed—in spite of facts supporting the
opposite conclusion—was not genuinely interested in re-signing him).
274
See Hanson & Kysar, The Problem of Market Manipulation, supra note 16,
at 647-50. A corollary to confirmation bias is “self-serving” or “egocentric” biases,
whereby individuals interpret information in a way that disproportionately favors their
own position. Unlike confirmation bias, however, self-serving or egocentric biases are
likely consciously present. See Guthrie, Framing Frivolous Litigation, supra note 55,
at 206 n.199 (noting that these biases may increase plaintiffs’ risk in seeking frivolous
litigation); see also Linda Babcock & George Loewenstein, Explaining Bargaining
Impasse: The Role of Self-Serving Biases, 11 J. ECON PERSPECTIVES 109 (1997)
(discussing the impact of self-serving biases on settlements).
273
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To illustrate, consider the events that led to Jermaine
O’Neal’s decision to re-sign with the Indiana Pacers in 2003.
O’Neal’s NBA career began in 1996, when he was drafted by
the Portland Trailblazers.275 After four unspectacular seasons,
O’Neal was traded to the Pacers.276 As a Pacer, O’Neal
developed a close bond with head coach Isiah Thomas, who
devoted much of his time to O’Neal and helped him become a
star. In fact, O’Neal would call Thomas his “father figure.”277
Besides his on-court instruction, Thomas would also serve
O’Neal as an emotional buffer, as best evidenced by Thomas’
counseling of O’Neal after the player’s stepfather attempted
suicide by shooting himself in the head—in O’Neal’s presence—
in 2002.278
The O’Neal-Thomas relationship emerged as mutually
beneficial. Indeed, O’Neal would often rush to the defense of
Thomas, whose coaching strategies were widely-criticized and
whose teams often appeared underachieving.279 For instance,
when doubts were raised of Thomas’ competence, O’Neal would
regularly characterize his coach as a victim of unrealistic
expectations, saddled by prior management decisions that
created an on-going re-building process.280 Such comments
bewildered many observers, as the Pacers were generally
regarded as one of the league’s most talented teams, and one
275
See Ken Vance, Blazers President Not Afraid of Change, COLUMBIAN
(Vancouver, WA), June 30, 1996, at C1.
276
See Brian Meehan, O’Neal Becoming a Force on the Court for Indiana,
OREGONIAN, Nov. 26, 2000, at C11.
277
See Lacy Banks, Pacers in Limbo After Firing Thomas, CHI. SUN-TIMES,
Aug. 29, 2003, at 166 (quoting O’Neal: “[Thomas] was more than a coach to me. He
was like a father.”); Mark Montieth, Lineup Shuffle Puts Strickland on Court,
INDIANAPOLIS STAR, Jan. 7, 2003, at 4D (quoting O’Neal: “It’s like a father-son
relationship”); Christian Red, O’Neal Gets Over Axing of Thomas, DAILY NEWS (New
York), Feb. 4, 2004, at 48.
278
See Sekou Smith, Rising to the Occasion, INDIANAPOLIS STAR, Mar. 25,
2003, at 1D (describing how Thomas went to the emergency room to counsel O’Neal the
night of his step-father’s attempted suicide).
279
See Bob Ryan, As Game 5 Beckons, Consider These Salient Topics on the
Indiana-Boston Series 5 Points—Ok, Actually Five Observations on Basketball with a
Bonus Entertainment Topic Thrown In, BOSTON GLOBE, Apr. 29, 2003, at F1
(describing the Pacers as one of the worst-coached teams in the NBA, particularly with
their bizarre substitution patterns); see also Steve Bulpett, Celts Earn Playoff Berth by
Default, BOSTON HERALD, Apr. 12, 2004, at 82 (criticizing Thomas for his coaching
strategies against inferior Celtics teams that nevertheless beat the Thomas-coached
Pacers).
280
See Mark Monteith, O’Neal: I’ll Play Only for Thomas, INDIANAPOLIS STAR,
May 2, 2003, at 1D (quoting O’Neal: “This is still a learning process. Isiah’s got a team
competing at a high level with a lot of guys who hadn’t played in the past. Isiah
inherited a team that he didn’t put together but he’s winning with it.”).
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led by seasoned veterans, such as Reggie Miller and Brad
Miller; a “rebuilding team” they were not.281
The 2002-03 season would prove to be a pivotal one for
the O’Neal-Thomas relationship. First, consider that the
Pacers lost 19 of their last 30 regular season games, and then,
in a dismal showing, lost to the Boston Celtics in the first
round of the 2003 NBA Playoffs.282 Following the playoff series,
media and even Pacers’ players harshly criticized Thomas for
his coaching strategies.283 Then, in May 2003, Pacers team
president Donnie Walsh announced that Thomas would not
receive a contract extension, a significant proclamation
considering that Thomas had only one year left on his four-year
contract, and a team declination of a coaching extension
typically foretells a forthcoming coaching dismissal.284
Only making matters more dubious for Thomas, in early
July 2003, the Pacers hired a new president of basketball
operations, Larry Bird—a personal and professional archrival
of Thomas—who immediately announced major organizational
changes on the horizon.285 Along those lines, speculation
quickly arose that Bird would replace Thomas with Rick
Carlisle, Bird’s close friend and former Detroit Pistons’ head
coach.286 In fact, only a year earlier, Bird had opined that if
Carlisle, rather than Thomas, were the Pacers’ coach, the team
would “be 10 to 20 percent better.”287 Accordingly, by all
objective measures, the future of Thomas as Pacers’ head coach
appeared very bleak in July 2003.
For O’Neal, Thomas’ impending demise proved of great
relevance, as he was set to become an unrestricted free agent
281
See, e.g., Al Iannazzone, Isiah Pining for Pacers, THE RECORD (Bergen
County, NJ), Feb. 3, 2004, at S6 (describing Pacers 2002-03 squad as one that, “by most
accounts, underachieved”); Doug Smith, Raptors “Open to All Discussions” at Draft,
HAMILTON SPECTATOR (Ontario, Canada), May 28, 2003, at E5 (describing Pacers as
“underachieving”).
282
See Peter May, Doubts on Thomas, BOSTON GLOBE, Apr. 30, 2003, at F8.
283
Id. (identifying complaints among players concerning unpredictable
substitution patterns, with players receiving significant minutes in one game, and then
no minutes in the next).
284
Id.
285
See Sekou Smith, Off and Running: Bird Identifies Pacers’ Faults, Wants
Solutions, INDIANAPOLIS STAR, July 12, 2003, at 1D [hereinafter Smith, Off and
Running].
286
See Mark Monteith, “Isiah Thomas Is the Coach”; Carlisle Says He’s
Pursuing TV Analyst Jobs, Not Pacers’ Position, INDIANAPOLIS STAR, July 13, 2003, at
5C.
287
See Jackie MacMullan, For Playoffs, Bird Still a Green Backer, BOSTON
GLOBE, Apr. 18, 2002, at E1.
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on July 1, 2003.288 Despite Thomas’ precarious status, O’Neal
expressed interest in re-signing with the Pacers, but as a
precondition, he insisted that Thomas remain the coach.289 In
response, Bird stated only that he had no immediate plans to
make a coaching change, which O’Neal interpreted as
unwavering confidence by Bird in Thomas.290 In contrast, most
observers not only interpreted Bird’s comments as lukewarm
support, but that Thomas would be retained only until O’Neal
re-signed or signed elsewhere.291 Nevertheless, O’Neal chose to
re-sign with the Pacers—a mere five days after Bird’s hiring.292
Less than a month later, Bird fired Thomas as head
coach, and replaced him with Carlisle.293 Observers described
the move as one of the most predictable coaching changes in
recent NBA history.294 O’Neal perceived it a bit differently. He
expressed shock and displeasure, and claimed that he had been
“deceived” by Bird into signing the contract extension.295 He
also stated that he would not have re-signed had he known
that Thomas was going to be fired.296
O’Neal’s decision-making process appeared strikingly
incongruous with both available information and his stipulated
preferences for re-signing with the Pacers. Along those lines,
O’Neal appeared to discount myriad informational sources that
challenged his core belief, namely that Thomas would remain
as his head coach, mentor, and father-figure. Even arguably
ambiguous information, such as speculation of Bird’s fondness
288
See David DuPree, Big Names Are in Position for Free-Agent Free-for-All,
USA TODAY, July 1, 2003, at 6C.
289
See Mark Monteith, Pacers’ Star Player Welcomes New Boss, INDIANAPOLIS
STAR, July 12, 2003, at 8D [hereinafter Monteith, Pacers’ Star Welcomes New Boss].
290
Monteith, Pacers’ Star Player Welcomes New Boss, supra note 289; Smith,
Off and Running, supra note 285.
291
See, e.g., Jemal Horton, Bird and Thomas See a Future Together,
INDIANAPOLIS STAR, July 12, 2003, at 1A (noting “myriad reasons to figure that
Thomas’ days as the Pacers’ head coach were numbered”).
292
Mark Monteith, O’Neal Makes It Official: Pacers Forward Signs Huge 7Year Contract, INDIANAPOLIS STAR, July 17, 2003, at 1D.
293
See Dave Lewandowski, Isiah Ousted, Carlisle Courted, INDIANAPOLIS
STAR, Aug. 28, 2003, at 1A.
294
See, e.g., Michael Lee, Inside the NBA, ATLANTA J.-CONST., Aug. 29, 2003,
(regarding move as not surprising to any objective observer); Tom Enlund, Carlisle
Clearly Was Saving Himself for Pacers All Along, MILWAUKEE J. SENTINEL, Sept. 7,
2003, at 19C (stating that Thomas’ “days with the team were numbered” following the
hiring of Bird).
295
See Bob Kravitz, O’Neal Could Have Handled the Truth, INDIANAPOLIS
STAR, Aug. 29, 2003, at 1D.
296
See Patrick Hruby, Coming Attractions; NBA Ready to Go Reel-to-Reel in
2003-04, WASH. TIMES, Oct. 28, 2003, at C1.
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for Carlisle, was dismissed by O’Neal with ease. Thus, O’Neal
appeared to unknowingly impair his own capacity to maximize
choice: though he enunciated meaningful subjective value in
playing for the Pacers only if Thomas was the coach, he either
disregarded or misread evidence indicating that Thomas would
not be the coach. Thus, when Thomas was dismissed, such
impairment of preference-maximization dismayed O’Neal, as
he had unknowingly suppressed the internalization of salient
and distinguishing characteristics.
3. Optimism Bias
Optimism bias likewise provides a useful mode of
heuristic analysis by which to gauge decision-making among
professional athletes, and how they may not always utilize
rational choice. As discussed in Section III, optimism bias
reflects the tendency of individuals to assume that general
risks do not apply with equal force to themselves.297 Thus,
when contemplating employment opportunities, might
professional athletes overestimate the probability of positive
outcomes and underestimate the probability of negative
outcomes?
Evidence for optimism bias sometimes emerges when
professional athletes weigh the relative risk of incentive-laden
contracts versus guaranteed contracts, with the former
naturally offering greater potential for reward—and loss. For
instance, consider the choice of New Orleans Saints’ running
back Ricky Williams in 1999 to agree to an eight-year contract
worth between $11 million and $68 million, depending upon his
capacity to reach certain incentives.298 At the time, Williams
was the fifth overall selection in the 1999 NFL Draft and was
negotiating his first NFL contract. As a useful juxtaposition to
Williams’ decision-making process, consider that of fellow
rookie running back Edgerrin James, who was selected by the
Indianapolis Colts with the fourth overall selection and was
likewise negotiating his first NFL contract.299 In striking
contrast to Williams’ incentive-laden contract, James agreed to
a seven-year contract worth between $44 million and $49
297
See discussion supra pp. 1471-72.
Mark Wiedmer, Maybe Ricky Should Lose Master P, CHATTANOOGA TIMES
FREE PRESS, Aug. 26, 1999, at D1.
299
See id.
298
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million, with incentives primarily affecting Williams’ potential
to void the last year of the contract.300
For two players selected at almost the same point in the
NFL Draft, the Williams and James contracts appeared of
exceptionally disparate values.
In fact, performance
projections estimated that Williams would earn at least $30
million less than James over the course of the contract.301
Indeed, for Williams to obtain much of his annual salary, he
needed to amass at least 1,600 rushing yards each season, a
feat that had only been accomplished by 15 players in the
NFL’s 134-year history, and only once by a Saints’ running
back in the franchise’s 33-year history.302 As a result of his
apparent “bad gamble,” Williams bore the brunt of considerable
ridicule.303
In explaining his decision, Williams reasoned that
because he believed that he should have been the number one
overall selection in the NFL Draft—and thus have warranted a
more lucrative contract—the only way for him “to make that
kind of money” was to agree to such a heavily-leveraged
contract.304 As to the contract’s seemingly quixotic performance
thresholds, Williams appeared undeterred, reasoning that if he
performed to his potential, he would readily attain them.305
Further suggestive of optimism bias, Williams maintained this
confidence even after seriously spraining his ankle a week prior
to the start of his rookie season.306 Separately, Williams
rationalized the contract by stating that he would use off-field
promotional earnings to offset any opportunity costs triggered
300
See News Summaries, Colts Sign James to Seven-Year Deal, SPORTS
NETWORK, Aug. 13, 1999.
301
See Wiedmer, supra note 297. See also Peter King, Inside the NFL, SPORTS
ILLUSTRATED, Aug. 23, 1999, at 48 (noting that, based on probable performance, James
would likely earn $11 million more than Williams over their first three seasons).
302
King, supra note 301, at 48; Rick Reilly, Ricky Williams, You Got Taken,
but Good, SPORTS ILLUSTRATED, Aug. 9, 1999, at 100 (describing the contract as the
worst contract in NFL history).
303
See, e.g., Ron Borges, Williams Giving Saints, Fans New Incentive, BOSTON
GLOBE, June 20, 1999, at D4 (noting ridicule from agents); Reilly, supra note 302, at
100; Michael Silver, Rappin’ on the Door, SPORTS ILLUSTRATED, July 19, 1999, at 82
(citing mocking commentary from agents and NFL executives of the contract).
304
See Camping with Ricky, TIMES-PICAYUNE (New Orleans), Aug. 5, 1999, at
D2.
305
Id.
306
See Don Pierson, Williams, Saints Go Limping In, CHI. TRIB., Aug. 27,
1999, at N1 (citing remarks by Williams that he believed he would obtain the 1,600rushing-yard-per-season milestone even if he missed two out of the sixteen regular
season games).
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PROFESSIONAL ATHLETES
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by unobtainable incentives (without apparently realizing that
such off-field earnings would have been available irrespective
of contract type).307
As predicted by most observers, Williams’ decision
proved remarkably unwise. Though he ranked among the top
10 running backs in rushing yards during his first three
seasons, he failed to reach most of the onerous performance
standards necessary for incentive payment. As a result, he
earned far below his market value.308 This proved most evident
in his third season, when despite setting his franchise’s fourthhighest single-season record for rushing yards, and despite
being named his team’s “most valuable player,” he earned only
$389,000.309 To put this figure in perspective, consider that
thirty-three of his fifty Saints’ teammates earned more that
season,310 or that James—who rushed for fewer yards—earned
slightly more than $7 million.311
The costly effect of Williams’ optimism bias begs an
important question for assessing decision-making among
professional athletes: How can player representatives diminish
optimism bias and other cognitive biases when their clients
seek patently unfavorable terms?
In the case of Williams, a fatal negotiating defect may
have existed to prevent such diminishment, as his
representative, Percy Miller, had never before represented a
professional football player.312 Indeed, Miller himself appeared
the victim of optimism bias, as he dauntlessly assigned the
drafting of technical, contractual language to a personal aide
who had never before drafted a contract.313 Nevertheless, more
seasoned agents may prove capable in discouraging players
from desiring detrimental agreements.314 In the alternative,
307
See Kevin B. Blackistone, Give Saints’ Williams Credit for His Play-for-Pay
Contract, DALLAS MORNING NEWS, Aug. 15, 1999, at 5B (quoting Williams: “I’m going
to make a lot of money off the field, and I can use that as my salary.”).
308
See Silver, supra note 303.
309
See Brad Townsend, Unmasked: His Social Phobia in the Open, Williams
Tries to Pull off Move, Dallas Morning News, Aug. 12, 2002, at 1B. See also New
Orleans
Saints
Total
Rushing
Records,
http://www.neworleanssaints.com/
custompage.cfm?pageid=72 (last visited Jan. 4, 2006).
310
See Townsend, supra note 309.
311
Id.; USA Today Salary Database: Edgerrin James, Dec. 10, 2003,
http://asp.usatoday.com/sports/football/nfl/salaries/playerdetail.aspx?lname=J&player=
1162.
312
See Reilly, supra note 302.
313
See Silver, supra note 303 (describing work by Leland Hardy).
314
See generally Willenbacher, supra note 142 (discussing norms for agent
behavior).
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and as vividly illustrated by Williams, professional athletes
may fail to internalize critical components of the decisionmaking process, and thus ultimately pursue the non-optimal
strategy.
4. Hindsight Bias and Regret Aversion
Hindsight bias also appears salient in the decisionmaking of professional athletes. As discussed in Section III,
hindsight bias refers to the tendency to overestimate
anticipated fruition of a particular event.315 In the context of
professional sports, hindsight bias may arise when athletes
accept “hometown discounts” for unrealized reasons and then
later rationalize those contracts on the occurrence of
unanticipated events.
To illustrate, consider the varying, and potentially
competing rationales offered by John Flaherty in 1999, and
then in 2002, regarding his decision to sign a discounted
contract extension with the Tampa Devil Rays. The narrative
begins in 1999, when Flaherty weighed whether to sign a
three-year, $9 million contract extension or enter free agency.
On one hand, Flaherty could have entered free agency as one of
the premiere catchers available, and able to secure a contract
far in excess of a three-year, $9 million term.316 Moreover, at
age 31, and after a career of relatively modest earnings,
Flaherty may have viewed free agency as a singular earnings
opportunity.317 Indeed, until an unusually impressive 1999
season, Flaherty had primarily served as a back-up player who
had earned not much more than the major league minimum.318
On the other hand, Flaherty perceived subjective value
in playing on a winning team, with veteran star players, and in
a regularly sold-out home stadium.319 According to Flaherty,
315
See discussion supra pp. 1474-75.
See Marc Topkin, Flaherty Signs on for One More Hitch with Devil Rays,
ST. PETERSBURG TIMES, Sept. 28, 1999, at 1C. See also John Romano, Flaherty Earns
Chance with Another Team, ST. PETERSBURG TIMES, May 20, 2002, at 1C (revealing
commentary from Devil Rays’ officials that they thought Flaherty was “selling himself
short” by agreeing to the extension, and when he did, they “congratulated themselves
on tying up an important position on the field at a reasonable salary”).
317
See Topkin, supra note 316.
318
See Bob Dick, Flaherty Becomes Big Hit, PROVIDENCE J., Aug. 6, 1996, at
1D (discussing Flaherty’s struggles); Kevin Wells, Flaherty Impressive on, off Field,
TAMPA TRIB., Nov. 30, 1997, at 11 (discussing success of Flaherty in the 1996 and
particularly 1997 seasons).
319
See Topkin, supra note 316, at 1C.
316
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those characteristics appeared associable with the Devil Rays,
as the team had recently re-signed star first baseman Fred
McGriff and had expressed interest in obtaining other star
players.320 Thus Flaherty predicted the Devil Rays would
excel.321 Indeed, Flaherty praised the “commitment” evidenced
by both Devil Rays’ management and ownership in developing
a “championship” strategy.322 Taking account of these reasons,
Flaherty found the Devil Rays’ contract offer sufficiently
attractive, and despite its sub-market value, opted to sign it.323
Unfortunately for Flaherty, the Devils Ray would not
win many games from 2000 to 2002. In fact, not only did the
Devil Rays place last in their division in each of those seasons,
but from 2001 to 2002, the team compiled the worst record of
any of the 30 major league teams.324 Moreover, despite
promises of pursuing star players, the Devil Rays featured the
Not
lowest payroll in baseball from 2000 to 2002.325
surprisingly then, the team attracted minimal fan interest, and
because of poor revenue, even encountered difficulty meeting
payroll commitments.326 In short, the subjective value Flaherty
attributed to playing on a winning team, and one with star
players and devoted fans, never materialized over the course of
his contract.
During the 2002 season—which represented the third
and final year of Flaherty’s contract—Flaherty was asked
whether he regretted signing the contract extension. After-all,
his stated reasons for accepting a “hometown” discount never
materialized. Perhaps surprisingly, Flaherty expressed no
regret.327 Instead, he inferred that upon signing the contract,
he had looked forward to serving as a mentor to young and
inexperienced players, since he anticipated that such activities
would prove valuable to him.328 Thus, Flaherty offered an
320
Id.
Id.
322
Id.
323
See Bill Chastain, Flaherty in the Fold, TAMPA TRIB., Sept. 28, 1999, at 5.
324
See Dick Scanlon, Piniella Set to Captain Devil Ray’s Shaky Ship, LEDGER
(Lakeland, Fla.), Oct. 29, 2002, at A1.
325
See Chris Anderson, Sweet Lou Is Home, SARASOTA HERALD-TRIB., Oct. 29,
2002, at C1.
326
See Carter Gaddis & Joe Henderson, Naimoli: Rays Won’t Miss Making
Payroll, TAMPA TRIB., May 13, 2001, at 1.
327
See Romano, supra note 316, at 1C (quoting Flaherty: “Do I regret signing
that contract? Hell no.”).
328
See Carter Gaddis, Veterans Bring Wisdom to Rays, TAMPA TRIB., Sept. 22,
2002, at 5 (quoting Flaherty: “I will look forward to the day when a winner does show
321
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entirely different subjective rationale for signing a sub-market
value contract than he had expressed in 1999. Beyond its
variance, such a rationale was likely incompatible, as seldom
do winning teams with veteran star players feature young and
inexperienced players.329
As illustrated by Flaherty, hindsight bias may distort
one’s capacity to objectively evaluate prior decision-making and
pursuit of preferences. As a result, it may impair redress of
any defects within the decision-making process, a troubling
outcome for athletes since many enter into subsequent series of
negotiations. This phenomenon is only exacerbated by regret
aversion, or the tendency among those prone to hindsight bias
to resist information concerning forgone conclusions or
hypothetical outcomes.330 Indeed, regret aversion offers further
explanation for Flaherty’s unwillingness to acknowledge regret
and for his substituted rationales: by shifting discussion from
preferable and forgone alternatives to inferior and existing
circumstances, Flaherty avoided discussion of information that
might have triggered feelings of regret and unhappiness.
Prescriptively then, while hindsight bias offered Flaherty an
alternative rationale, regret aversion offered the means by
which to discuss it.
5. Anchoring and Adjustment Effects
The failure to adjust for new information may also
impair rational-decision making among professional athletes.
As discussed in Section III, psychologists often describe this
tendency as “anchoring and adjustment” or “belief
perseverance.”331 In professional sports, athletes negotiating
contracts sometimes appear anchored to certain monetary
values, particularly when negotiations occur during market
fluctuations.
Such anchoring may not only promote
acrimonious negotiations, but also inferior outcomes.
To illustrate, consider the futile efforts of shortstop
Nomar Garciaparra and the Boston Red Sox to consummate a
contract extension during the 2003 and 2004 MLB seasons.
up out on that field and I’ll feel like in a small way . . . not that I’m part of it, but it’ll be
very gratifying to see.”).
329
See, e.g., Joe Strauss, Hitting the Road, Eyeing Direction, BALT. SUN, July
12, 2001, at 1D (discussing difficulties of winning with young and inexperienced
players).
330
See discussion supra p. 1475.
331
See discussion supra p. 1477.
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The genesis of those negotiations traces back to March 1998,
when, as second-year player, Garciaparra agreed to a five-year
contract with the Red Sox that included team options for the
2003 and 2004 seasons.332 All together, the contract offered to
pay Garciaparra $44 million between 1998 and 2004.333 At the
time, observers regarded the contract as highly generous for a
player of his experience, though its length also posed risk to
Garciaparra, particularly given the rapid growth of player
salaries in the late 1990s.334 Moreover, by enabling the Red Sox
to control his rights in the 2003 and 2004 seasons, Garciaparra
surrendered two years in which he could have elected to
become a free agent.335
By 2000, Garciaparra, Alex Rodriguez of the Seattle
Mariners, and Derek Jeter of the New York Yankees, were
widely-regarded as the three best shortstops in baseball.336
Indeed, because of their similar talent, production, and age,
they were often clustered together in baseball discussion.337
However, between the 2000 and 2001 seasons, the three would
become compensated at highly variable levels.
Indeed,
Rodriguez would sign a 10-year, $252 million free agent
contract with the Texas Rangers,338 and Jeter—who was set to
become a free agent at the end of the 2001 season—would
agree to a 10-year, $189 million contract extension with the
New York Yankees.339 In contrast, Garciaparra would remain
under contract to the Red Sox through 2004, during which time
he would earn $32 million.340 Observers immediately described
Garciaparra as wildly underpaid, because despite their similar
332
See Michael Silverman & Tony Massarotti, Nomar on the Money, BOSTON
HERALD, March 11, 1998, at 100.
333
Id.
334
See Sean McAdam, Garciaparra Gets a $23.5 Million Pact, PROVIDENCE J.BULL., Mar. 11, 1998, at 1D.
335
Id.
336
See, e.g., Larry Lage, Deivi Cruz Not Known for Control, SOUTH BEND
TRIB., Mar. 1, 2001, at B1 (describing the three best shortstops as Rodriguez, Jeter,
and Garciaparra).
337
Id.
338
See Jay Weiner, Good for A-Rod, Bad for Baseball, BUS. WEEK, Dec. 18,
2000, at 59.
339
See Brad Biggs, Millions Not Enough: Latest Contracts Have Spawned
Disgruntlement Among Stars Stuck in Long-Term Deals, CHI. SUN-TIMES, Feb. 26,
2001, at 89.
340
See Silverman & Massarotti, supra note 332, at 100.
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talent, production, and age, Rodriguez and Jeter would earn
three to four times as much.341
Unfortunately for Garciaparra, the exorbitant contracts
secured by Rodriguez and Jeter likely represented the apex of a
prior market. Indeed, the sheer size of such contracts is
thought to have triggered a backlash among MLB owners,
which subsequently diminished their willingness to spend so
unreservedly.342 Consequently, over the following two years,
free agents tended to secure significantly less lucrative
contracts than they would have previously secured.343
Undeterred by this apparent market contraction,
Garciaparra approached the Red Sox in March 2003 about a
contract extension that would pay him commensurate with
Rodriguez and Jeter.344 In fact, since the Rodriguez and Jeter
contracts paid annual average salaries of $25.2 million and
$18.9 million, respectively, Garciaparra informed the Red Sox
that he would accept no less than $17.0 million per year.345 Red
Sox management had a different idea of Garciaparra’s value,
however, reasoning that the Rodriguez and Jeter contracts no
longer represented market value for premiere shortstops.346
Indeed, as Red Sox management noted, no player, of any
position, had signed a contract paying in excess of $15 million
per season during the previous two years.347 Instead of meeting
Garciaparra’s demand, the Red Sox offered him a four-year
341
See, e.g., Jon Heyman, These Two Red Sox Are Exceptions to the Rule,
NEWSDAY (New York), Feb. 28, 2001, at A71; Bob Hohler, Martinez Extends Advice to
Duquette, BOSTON GLOBE, Dec. 23, 2000, at F3; Michael Silverman, Sox Cash In—Get
Off Cheap with Nomar, BOSTON HERALD, Jan. 20, 2000, at 88.
342
See Tom Haudricourt, Huge Salaries Not Trickling Down to Journeymen
Players, MILWAUKEE J. SENTINEL, Feb. 3, 2002, at 15C (describing market correction
during off season between 2001 and 2002 seasons); Mike Klis, This Time, Collusion Too
Tough to Unearth Superstar’s Big Contracts, DENVER POST, Feb. 2, 2003, at C5 (noting
sentiment among free agent players that the owners were colluding to create a market
correction during off season between 2002 and 2003 seasons).
343
Klis, supra note 342. See also Hal Bodley, 94 Strike: Lesson Learned?, USA
TODAY, Sept. 13, 2004, at 1D (noting that from 2002 to 2003, free agent salaries
declined by 3 percent).
344
See Michael Silverman, Breaking Up Is Hard to Do, SPORTING NEWS, Aug.
2, 2004, at 10 (discussing “failed contract negotiations” between Garciaparra and the
Red Sox during spring training in 2003).
345
See Jeff Horrigan, Sox Upped the Ante, BOSTON HERALD, Aug. 4, 2004, at
90; see also Tony Massarotti, Nomar: I Want to Stay, BOSTON HERALD, Dec. 8, 2003, at
120 (citing salaries for Rodriguez and Jeter).
346
See Gerry Callahan, Trade a Necessary Evil, BOSTON HERALD, Apr. 10,
2003, at B13 (noting how Red Sox team President Larry Lucchino hoped to convince
Garciaparra of the “new economic climate” in baseball (i.e., lower salaries)).
347
See Horrigan, Sox Upped the Ante, supra note 345, at 90.
2006]
PROFESSIONAL ATHLETES
1523
contract worth $15 million per year.348 According to Red Sox
owner John Henry, Garciaparra immediately rejected the offer,
believing that the alleged market correction was either untrue
or ephemeral.349 Garciaparra would then play the 2003 season
often appearing unhappy, and his Red Sox teammates believed
that his contract status had caused him to become increasingly
irritated.350
In November 2003, the Red Sox once again offered
Garciaparra a four-year contract, yet this time it offered an
average annual salary of only $12 million.351 In explaining the
reduction in annual value from $15 million to $12 million, Red
Sox management cited a continuing “market adjustment” that
Garciaparra
had further diminished players’ salaries.352
refused the offer, vehemently asserting that no such market
correction had occurred.353 In March 2004, the Red Sox made
one final attempt to re-sign Garciaparra, offering a four-year
contract worth $12.5 million per season, which Garciaparra
also rejected for the same reason.354 With his free agent status
looming, and with his increasingly dour attitude, the Red Sox
traded Garciaparra to the Chicago Cubs in July 2004.355 After
the 2004 season, Garciaparra finally obtained the right to
become a free agent. Such an attainment proved bittersweet,
however, as he would re-sign with the Cubs to one-year
contract worth only $8 million, or less than his “less-than-
348
Id.
Id.
350
See Dan Shaughnessy, Words Don’t Do Justice for Garciaparra, BOSTON
GLOBE, July 23, 2003, at F1; see also Ken Fidlin, The Last Word, TORONTO SUN, Dec.
24, 2003, at 101 (stating Garciaparra’s disgust at being “disrespected not only by
management, but by teammates as well” following his contract squabbles);
Shaughnessy, Damaged Goods, supra note 183 (describing Garciaparra as “wildly
unhappy”); Silverman, supra note 344 (describing how Garciaparra’s “funk in mood”
was evidenced by his decision to physically separate himself from teammates during a
pivotal game against the New York Yankees, also describing Garciaparra as “ticked
off” at Red Sox management).
351
See Gordon Edes, Tales from Two Cities: Garciaparra, Sox Offer Differing
Views on Pre-Trade Events, BOSTON GLOBE, Aug. 2, 2004, at D1.
352
See id.
353
See Jeff Horrigan, Sox in Winter Wonderland, BOSTON HERALD, Dec. 12,
2003, at 118 (noting that Garciaparra “scoffed at the offer” after the Red Sox justified it
based on the “changing financial climate in baseball”).
354
See Gordon Edes, Force Play: On Trade, Henry Says Epstein Simply Did
What He Had to Do, BOSTON GLOBE, Aug. 4, 2004, at F1.
355
Id.
349
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BROOKLYN LAW REVIEW
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market value” $9 million annual salary over the preceding four
years.356
Garciaparra’s decision to refute the existence of a
market correction, and instead anchor his value to increasingly
less-relevant contracts, proved a great disservice to him. Not
only may he have cost himself over $40 million, but, by
participating in unworkable negotiations, put himself through
needless anguish. In fact, some believe that his unwillingness
to recognize modified market conditions ultimately morphed a
happy person into a miserable one.357 Accordingly, anchoring
and adjustment effects may not only impair the pursuit of
objective value (i.e., contractual compensation) but also
equally-meaningful subjective value (i.e., level of happiness).
6. Endowment Effects
Decision-making among professional athletes may also
be influenced by endowment effects, whereby individuals
perceive more utility from their current state of affairs than
from altered, yet equivalent circumstances.358 Such phenomena
are broadly evident among those contemplating new
employment opportunities. For instance, as discussed in
Section III, employees are often less willing to pay to acquire a
right or privilege than they are willing to sell it.359
Among professional athletes, endowment effects appear
especially apparent when they re-sign at discounted rates, and
then, as a reason for accepting diminished salary, cite
employment characteristics that are likely constant among
employment options. Perhaps best evincing this idea, consider
the subjective value ascribed by some professional athletes to
the quality of their team training staffs.360 Primarily, these
staffs treat players’ injuries and provide other therapeutic
356
See Mike Kiley, Cubs’ Daily Double: Nomar, Walker, CHI. SUN-TIMES, Dec.
8, 2004, at 143.
357
See, e.g., Jim Donaldson, Leaving Town Was Inevitable for Embittered
Garciaparra, PROVIDENCE J., Aug. 2, 2004, at C1; Shaughnessy, Damaged Goods,
supra note 183. See generally supra note 349 and accompanying sources (providing
insight on Garciaparra’s unhappiness as a result of his futile contract negotiations with
the Red Sox).
358
See Korobkin & Guthrie, supra note 105, at 802 & n.29, 803.
359
See discussion supra p. 1478.
360
See, e.g., George Vescey, Matthews Remembers Houston, N.Y. TIMES, Jan.
26, 2000, at D1 (citing remarks by Bruce Matthews of the Tennessee Titans).
2006]
PROFESSIONAL ATHLETES
1525
care.361 Although they undoubtedly vary in quality, empirical
data suggests that among professional teams in the NFL, MLB,
NBA, and NHL, all include highly-skilled staff and excellent
facilities.362 In other words, any actual difference in quality
may not prove appreciable.
Some professional athletes, however, appear to place
significant subjective value in their belief that training staffs
vary widely in quality. For instance, when San Francisco
Giants’ pitcher Jason Christiansen recently re-signed to a 1year, $1 million contract—a significantly less lucrative deal
than he was offered by both the Tampa Bay Devil Rays and
New York Mets—he cited his “affection for the Giants’ training
staff” as a reason to take a hometown discount.363 Similarly,
when the Tennessee Titans re-signed offensive lineman Bruce
Matthews for less than his market value, he considered the
team’s “great training staff” as a motivating reason.364 Thus,
professional athletes may assent to substantial reductions in
salary in exchange for presumed relative benefits that might,
in practice, prove illusory.
Professional sports teams appear cognizant of these
heuristics. In fact, they often showcase their training facilities,
and attempt to impress upon players the presence of variances
among training facilities and staffs.365 Teams even construct
new facilities in part for the very purpose of keeping star
361
See generally Chris Curran & Joe Recknagel of Detroit Lions Athletic
Training
Staff,
A
Week
in
an
NFL
Training
Camp,
NFL.COM,
http://www.nfl.com/news/story/7616836 (last visited Jan. 4, 2006).
362
See Cherie Black, Trainers Help Athletes Get Back on Their Feet, FLA.
TIMES-UNION, Sept. 12, 2004, at B1; see also Brian Biggane, Conditioning, Contracts
Make Age Less an Issue, PALM BEACH POST, Oct. 15, 2000, at 6B (analyzing investment
of NHL teams and players in training and fitness); Paul Hoynes, Focused on Fitness,
PLAIN DEALER (Cleveland), May 31, 2005, at D1 (discussing “revolution” among
training MLB training staffs over last twenty years and outstanding care players
receive); Mike Preston, Bigger, Faster, Stronger, BALT. MORNING SUN, Sept. 20, 1996
(describing extensive training available for players on the Cleveland Browns and how
other teams provide similar training); Patrick Saunders, Super Human or Super
Medicine?, DENVER POST, May 16, 2003, at D1 (describing modern diagnostic tools
available to NBA trainers and trainers in other pro sports leagues).
363
See Henry Schulman, Giants Re-Sign Left-Hander, S.F. CHRON., Dec. 18,
2004, at D3. It should be noted that Christiansen cited additional subjective reasons
for his decision to stay in San Francisco, including his relationship with teammates
and the geographic location of the team’s training facilities. Id.
364
See Vescey, supra note 360, at D1.
365
See Mike O’Hara, New Digs Are “Unbelievable,” DETROIT NEWS, Mar. 31,
2002, at 8D (noting this effect in the NFL); Bob Wolfley, July Has Become Courting
Season for NBA Free Agents, MILWAUKEE J.-SENTINEL, July 19, 2000, at 2C (noting
this effect in the NBA).
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players, as well as attracting free agents.366 These efforts are
encouraged by team employees, including those players who
regard training facilities and staff as crucial to their
performance.367
Team manipulation of preferences among professional
athletes highlights the malleability of employment choice.
Indeed, by promoting the perception of greater utility from
current states of affair than from functionally-equivalent
states, teams exacerbate endowment effects among their
players. Such a phenomenon further amplifies the presence of
cognitive biases and heuristics among professional athletes,
and thus further suggests non-optimal pursuits of preferences.
VI.
CONCLUSION
In contemplation of employment opportunities,
professional athletes appear to embrace a myriad mixture of
preferences, and such preferences frequently reflect the
placement of considerable value in non-monetary goals.
Accordingly, for many professional athletes, “optimality” does
not reflect greed, avarice, or other commonly-held assumptions
about those individuals; instead, it often comprises intangible,
even romanticized inclinations, such as loyalty, camaraderie,
and aspiration for team success. For that reason, and upon
deeper reflection, behavioral patterns among contemporary
professional athletes may not only “remind us of all that was
once good” in professional sports368—they may also suggest that
such good never left.
An analysis limited to preferences, however, ignores the
presence of cognitive biases and heuristics among professional
athletes.
Significantly, such influences may distort
preferences, and yield sub-optimal decision-making. This is
especially apparent when professional sports teams impress
illusory variances among themselves and other teams.
366
See, e.g., Matt Winkeljohn, New Facility an All-Around Improvement,
ATLANTA CONST., Aug. 9, 2000, at E6 (describing thought-process among Atlanta
Falcons’ management officials when contemplating the construction of a new training
facility).
367
See Mike Cobb, Planned Facility Has Bucs Smiling, LEDGER (Florida),
Mar. 18, 2004, at C3 (citing remarks by Tampa Bay Buccaneers wide receiver Joe
Jurevicius).
368
FIELD OF DREAMS (Universal 1989). This particular comment refers to the
belief that professional athletes from the early part of the twentieth century cared
substantially more about winning games and less about financial remuneration than
do contemporary athletes.
2006]
PROFESSIONAL ATHLETES
1527
Consequently, professional athletes may unknowingly
misinterpret their preferences, thereby triggering diminutions
in both objective value and subjective value.
The conclusions reached in this Article may prove both
novel and complimentary. Indeed, they reflect the first of their
kind.
Such novelty may offer meaningful insight to
professional athletes, their representatives, and teams, a group
collectively worth billions of dollars. For professional athletes,
knowledge of cognitive biases and heuristics in their decisionmaking may encourage ameliorative cognitive adjustments.
For instance, instead of discounting or ignoring information
that challenges existing assumptions about their teams,
professional athletes might explore the validity and salience of
such information and determine whether to utilize it in their
decision-making process. Similarly, rather than assuming that
established precedents, such as probable performance metrics,
do not apply with equal force to themselves, professional
athletes might instead pursue more expansive consultations.
By doing so, they might refrain from assenting to poor risk
contracts, particularly those that are incentive-based or
otherwise unconventionally-constructed.
Player representatives may likewise infer strategic
guidance from these conclusions. If anything, their role
appears bolstered by the presence of cognitive distortions
among professional athletes. Indeed, player representatives
may offer objective advice, and because of the intimacy of the
player-agent relationship, may do so in uniquely compelling
ways. Alternatively, player representatives may become more
attune to subjective preferences among players. Although
adherence to such preferences might diminish agent
compensation, the quality of representation would rise
commensurate with preference maximization. Of course, with
any enlarged role for player representatives comes heightened
responsibility, as well as the corresponding need to avoid
cognitive biases in representation.
Consider also the capacity of professional sports teams
to adroitly manipulate cognitive biases, and how that capacity
only amplifies the desirability of professional athletes and their
representatives to respond accordingly. As discussed in this
Article, teams routinely engage in machinations to distort the
decision-making of professional athletes. Moreover, teams’
continued choice to do so supplies further evidence of cognitive
biases, as otherwise, they would presumably pursue other
recruiting and retention strategies. Accordingly, an enriched
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[Vol. 71:4
ability on the part of players and their representatives to
counteract cognitive biases would presumably deter such
behavior or make it more costly.
Yet perhaps most engagingly, the conclusions reached in
this Article illuminate the potential for behavioral sciences to
influence traditional law and economics, as well as theories of
contract formation. This is especially true since, unlike other
population groups that frequently capture the attention of legal
academics, professional athletes spontaneously furnish
publishable commentary of their values, beliefs, and priorities,
and they do so in real world, rather than experimental settings.
Indeed, by escaping the alleged “experimental flaw” of many
behavioral law and economic studies, professional athletes offer
a uniquely appealing group for further examination. For that
reason, recognition of how professional athletes respond to
subjective stimuli, as well as cognitive distortions, may reveal
as much about us as it does about them.
CPLR 3212(a)’s Timing Requirement
for Summary Judgment Motions
ONA BRILL’S STROLL THROUGH BROOKLYN AND
THE DRAMATIC EFFECT IT HAS HAD ON NEW YORK
STATE’S CIVIL PRACTICE
Patrick M. Connors †
I. Introduction ...................................................................... 1531
II. Historical Background and the 1997 Amendment to
CPLR 3212(a) .................................................................... 1532
III. The Court of Appeals Interprets CPLR 3212(a)’s
Timeliness Requirements................................................. 1536
IV. Calculating CPLR 3212(a)’s Time Period ........................ 1537
A. Various Time Periods for Making Motion for
Summary Judgment and Their Accrual .................... 1537
B. “Making” the Motion for Summary Judgment in a
Timely Fashion ........................................................... 1538
C. Timeliness of Cross-Motion for Summary Judgment 1540
D. Effect of Mistrial on CPLR 3212(a)’s Timing
Requirements .............................................................. 1542
E. Cases Stricken from the Trial Calendar.................... 1543
V. What Constitutes “Good Cause” Under CPLR 3212(a)? 1545
A. Adjudication of Good Cause ....................................... 1546
B. Stipulation to Extend CPLR 3212(a)’s Time Period 1548
C. Demonstrating Good Cause........................................ 1549
1. Outstanding Disclosure ........................................ 1549
†
Associate Professor of Law, Albany Law School. Professor Connors is the
author of the McKinney’s Practice Commentaries for CPLR Article 31, Disclosure and
the co-author of the New York Practice column, which appears regularly in the New
York Law Journal. He frequently presents continuing legal education programs to the
bench and bar on recent developments in New York practice. © 2006 Patrick M.
Connors.
John R. Higgitt, Esq. provided substantial contributions to this piece. He
drafted several sections of the article and reviewed the manuscript on numerous
occasions, while providing keen insights and comments.
Bob Emery, one of the finest research librarians in the nation, provided
many helpful suggestions. We are very lucky to have Bob’s assistance at Albany Law
School.
1529
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BROOKLYN LAW REVIEW
[Vol. 71:4
2. Other Potential Excuses Constituting “Good
Cause”.................................................................... 1553
3. “Good Cause” – CPLR 3212(a) vs. CPLR 2004 .... 1557
VI. Extension of Time Periods Established by Court Rule or
Order ................................................................................. 1558
VII. The Aftermath of Brill ................................................... 1562
A. What Does the Plaintiff Do Now? .............................. 1564
1. Search for Additional Proof .................................. 1565
2. The Prospect of Sanctions..................................... 1566
3. Voluntary Discontinuance .................................... 1569
4. Ethical Obligations To Client............................... 1570
B. What Does the Defendant Do Now?........................... 1573
1. CPLR 4401 – Motion for Judgment During Trial 1573
2. CPLR 3211(a)(7) – Motion to Dismiss.................. 1575
3. CPLR 3404 & 22 NYCRR § 202.27 – Laxness
Dismissals ............................................................. 1578
4. Defense Lawyer’s Potential Exposure to Legal
Malpractice............................................................ 1583
VIII. Conclusion .................................................................... 1585
Postscript by Chief Judge Judith Kaye, New York Court of
Appeals ............................................................................. 1586
2006]
I.
CPLR 3212(a)’S TIMING REQUIREMENT
1531
INTRODUCTION
In 1997, the CPLR added another star to its galaxy of
deadlines. CPLR 3212(a) was amended to require that motions
for summary judgment be made no later than 120 days after
the filing of the note of issue, unless the movant can establish
“good cause.” As devoted followers of New York civil procedure
have observed, a certain segment of the bar apparently enjoys
living dangerously, and several reported cases began to test the
limits of CPLR 3212(a)’s timeliness provisions. One particular
case, however, has placed this timing requirement at the
forefront of civil procedure in the New York State courts.
On a cold February day in New York City, during the
winter of 1998, a woman named Ona Brill was walking on a
public sidewalk in Brooklyn when she tripped and fell.
Although she did not realize it at the time, her name would
gain a form of celebrity status with the bench and bar in New
York State’s civil courts. Ms. Brill and her husband ultimately
sued New York City, among other defendants, seeking
compensation for her injuries. The City, which handles
hundreds of slip-and-fall cases on an annual basis, apparently
did not believe that the case required any heightened level of
attention. It contended that Ms. Brill could not establish that
the City had prior written notice of the defect, a necessary
requirement in the lawsuit, and moved for summary judgment
to dismiss the case before trial.
Ms. Brill’s case ultimately came before the New York
Court of Appeals, which issued a ruling addressing the
importance of CPLR 3212(a)’s timing requirements, and the
adherence to statutory time periods and court orders in
general. This article will address the impact of the decision in
Ms. Brill’s suit, which has spawned a healthy body of caselaw
on the timing of summary judgment motions. We will identify
the various factors that courts have considered in determining
whether good cause has been established to allow a party to
move for summary judgment beyond CPLR 3212(a)’s deadline.
The cases have also issued several express and implied
warnings to the bar regarding compliance with the statute’s
language, which will be discussed below. In addition, the
article will address several problems applying the statute that
have yet to be resolved by the courts. We will also make
recommendations to lawyers who wish to avoid jeopardizing
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[Vol. 71:4
their use of the important tool of the summary judgment
motion.
Finally, the article will examine the effect of CPLR
3212(a)’s amendment on civil practice from a broader
perspective. There will be occasions, for example, when a
defendant’s meritorious summary judgment motion is denied
as untimely. As a result, the defendant’s attorney faces several
problems, including the prospect of malpractice liability for
failing to have disposed of the case with a timely motion for
summary judgment. The plaintiff’s lawyer also faces several
dilemmas, and may not be enthusiastic about advancing the
case in light of the impending doom awaiting at trial. In fact,
proceeding to trial in these circumstances may result in
sanctions for frivolous conduct.
II.
HISTORICAL BACKGROUND AND THE 1997 AMENDMENT
TO CPLR 3212(a)
The legal system has always struggled to become more
efficient and to reduce unnecessary delay without abridging
litigants’ rights. To a substantial degree, the old common law
lost this struggle. Common-law pleading sacrificed efficiency
and even fairness to technicality and prolonged delay. 1 In
response to these problems, New York State pioneered a
system of summary judgment that expedited the resolution of
lawsuits while preserving the valid claims of parties. As early
as 1808, the New York State Supreme Court adopted one of the
first forerunners of the modern summary judgment procedure. 2
In 1921, New York adopted a new summary judgment rule, 3
which influenced the adoption of the same device by the
Federal Rules of Civil Procedure almost twenty years later. 4
1
ROBERT WYNESS MILLAR, CIVIL PROCEDURE OF THE TRIAL COURT IN
HISTORICAL PERSPECTIVE 237 (photo reprint 2005) (1952).
2
General Rule, 3 Johns. 542 (N.Y. Sup. Ct. 1808) (requiring defendants to
submit an affidavit of “good and substantial defence”). For a further discussion of the
history of the summary judgment motion in New York State, see N.Y. ST. B. ASS’N
COM. & FED. LITIG. SEC., REPORT ON REFORM OF SUMMARY JUDGMENT PROCEDURES IN
NEW YORK COURTS (1993), available at http://www.nysba.org/Content/ContentGroups/
Commercial_and_Federal_Litigation_Sec/SummaryJudgmenProcedurest.pdf [hereinafter,
REPORT ON REFORM].
3
N.Y. CIV. PRAC. R. 113 (replaced by CPLR 3212 in 1963).
4
FED. R. CIV. P. 56. See Paul H. Aloe & Joan Morgan McGivern, Rethinking
New York’s Summary Judgment Procedures: Proposed Reform to Facilitate Disposition
of Commercial Cases, N.Y. ST. B.J., May/June 1993, at 32.
2006]
CPLR 3212(a)’S TIMING REQUIREMENT
1533
The summary judgment device remains a source of constant
controversy, however, on both the federal 5 and state level. 6
New York’s CPLR 3212(a), 7 which governs the timing of
a summary judgment motion, continues New York’s tradition of
innovation with respect to this important procedural device. It
is an example of how one jurisdiction, in response to the
realities of modern litigation, has tried to balance procedural
efficiency with justice.
Prior to 1997, summary judgment motions in New York
State courts on the eve of trial were not uncommon. Courts had
long recognized the problem, observing that “[t]he timing of a
summary judgment motion so as to make it returnable on the
eve of the trial of an action has a tendency to frustrate rather
than to further the primary purpose of the remedy, which is to
obviate delay in litigation.” 8 In 1980, however, the New York
Court of Appeals held that the mere fact that a motion for
summary judgment was made at this late date was not,
standing alone, grounds for denying the motion. 9 Courts had
the authority to deny such a motion, however, “when its merit
[was] not evident and it appear[ed] to be made as a dilatory
tactic.” 10 The Court reasoned that if a motion made on the eve
of trial was “clearly meritorious,” its denial based on
untimeliness grounds was error. 11 A denial of the motion in
5
See, e.g., CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL
COURTS § 99, at 714-15 (6th ed. 2002).
6
See, e.g., Aloe & McGivern, supra note 4, at 32-35 (discussing New York);
Paul D. Fogel & Valerie Mark, Summary Adjudication in the 90s: Problems and
Proposals, L.A. DAILY J., June 1, 2003, at 7 (discussing California).
7
N.Y. C.P.L.R. 3212(a) (McKinney 2005).
8
Jordan v. Levy, 16 A.D.2d 64, 65, 225 N.Y.S.2d 399, 400 (App. Div. 1st
Dep’t 1962) (per curiam). Jordan observed that when a case “has progressed to the
point of imminent trial in the usual course, the disposal of the litigation will not then
be accelerated by a motion for summary judgment.” Id.
9
Kule Res., Ltd. v. Reliance Group, Inc., 49 N.Y.2d 587, 591, 404 N.E.2d
734, 735, 427 N.Y.S.2d 612, 613 (1980) (per curiam). In Kule, the trial court ruled that
“the timing of the motion so as to make it returnable ‘on the eve of trial’ frustrated the
purpose of summary judgment, and denied the motion.” Kule Res., Ltd. v. Reliance
Group, Inc., 69 A.D.2d 753, 753, 415 N.Y.S.2d 13, 14 (App. Div. 1st Dep’t 1979), aff’d,
49 N.Y.2d 587, 404 N.E.2d 734, 427 N.Y.S.2d 612 (1980) (per curiam). The Appellate
Division, in an order affirmed by the Court of Appeals, reversed, noting that the
summary judgment motion was made as soon as the deposition transcripts were
available. Id. “Inasmuch as the motion depends largely on evidence adduced at the
depositions it could not have been made sooner. Accordingly, timeliness should not
have been made the basis for denial.” Id.
10
Kule, 427 N.Y.S.2d at 613.
11
Id. Accord Guzman v. Estate of Fluker, 226 A.D.2d 676, 677, 641 N.Y.S.2d
721, 723 (App. Div. 2d Dep’t 1996) (“A motion for summary judgment should not be
denied solely on the ground that it is made on the eve of trial, particularly where the
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these circumstances, the Court observed, “wastes judicial
resources which, through ever increasing demands, daily
become more precious.” 12
During the next two decades, the practice of allowing
late motions for summary judgment placed a significant burden
on the court system and litigants. If a successful “eleventh
hour” motion established that defendant was entitled to
judgment as a matter of law, a substantial portion of the time
and money spent in preparation for trial was rendered
worthless. These motions also significantly taxed the resources
of the judiciary, often leaving inadequate time for proper
consideration of the arguments and disrupting court
calendars. 13
motion is meritorious.” (citations omitted)); Latimer v. City of New York, 219 A.D.2d
622, 623, 631 N.Y.S.2d 395, 395 (App. Div. 2d Dep’t 1995) (“[T]he mere fact that a
summary judgment motion is made on the eve of trial is not in and of itself sufficient
reason for denying the motion, especially in a case such as this where the motion is so
clearly meritorious.” (citations omitted)).
12
Kule, 427 N.Y.S.2d at 613.
13
The Office of Court Administration summarized the problem in 1996 by
observing that if a motion for summary judgment is delayed until the eve of trial,
“there is no adequate time for an adversary to reply or for the court to consider the
motion, thereby occasioning either a determination on the merits of the motion without
adequate consideration or the delay of the trial, especially when the motion papers are
voluminous.” OFFICE OF COURT ADMIN., MEMORANDUM ON SUMMARY JUDGMENT
MOTIONS - TIMELINESS, 219th sess. (N.Y. 1996), reprinted in 1996 N.Y. Sess. Laws page
2685 (McKinney). The Memorandum notes that, “[a]t times, such belated motions may
be filed in an attempt to delay a case or to secure transfer of the case to a different
judge for trial.” Id. See also REPORT OF THE ADVISORY COMMITTEE ON CIVIL PRACTICE,
219th sess. (N.Y. 1996), reprinted in 1996 N.Y. Sess. Laws page 2699, 2724
(McKinney). The 1993 Report on Reform previously identified the problem of summary
judgment motions being made “on the eve of trial for purposes of delay.” REPORT ON
REFORM, supra note 2, at 4. The Report on Reform quoted from the October 1992
Report on the IAS System, which stated:
Judges throughout the state expressed concern about the number of motions
for summary judgment that are made on the eve of trial. It has been the
universal experience of the bench that the vast majority of these motions are
made primarily for delay or other tactical advantage.
Id. at 4.
The Report on Reform proposed an amendment to CPLR 3212(a)(4) that
would have forbidden
a party from making a motion for summary judgment within sixty days of a
trial date where the trial had been set for a date certain, except by order to
show cause which can only be granted where good cause is shown and the
opponent consents to the making of the motion or has been given an
opportunity to be heard in opposition to the granting of the summary
judgment motion.
Id. at 9.
2006]
CPLR 3212(a)’S TIMING REQUIREMENT
1535
Effective January 1, 1997, CPLR 3212(a) was amended
to discourage parties from moving for summary judgment on
the eve of trial. 14 The amendment allows trial courts to set a
date after which no summary judgment motions can be made,
but requires the court to allow the parties at least thirty days
from the filing of the note of issue 15 to make such a motion. 16
Many courts exercise this authority in various places, including
individual court rules, Uniform Rules for the Supreme Court, 17
preliminary conference orders, 18 or certification orders. 19 If no
date is set by the particular court, CPLR 3212(a) mandates
that the motion be made “no later than one hundred twenty
14
Act of Aug. 8, 1996, ch. 492, § 1, 1996 N.Y. Laws 2972.
See N.Y. C.P.L.R. 3402 (McKinney 2005). The filing of the note of issue
places the case on the trial calendar. N.Y. C.P.L.R. 3402(a). The note of issue must
ordinarily be accompanied by the certificate of readiness. See infra notes 83-84 and
accompanying text.
16
N.Y. C.P.L.R. 3212(a) (McKinney 2005). The note of issue is utilized in the
supreme and county courts. See N.Y. COMP. CODES R. & REGS. tit. 22, § 202.21 (2005).
In the New York City Civil Court, the district courts and the city courts, the notice of
trial is the equivalent of the note of issue. See N.Y. CITY CIV. CT. ACT §§ 1301, 1303
(McKinney 2005); N.Y. UNIFORM DIST. CT. ACT §§ 1301, 1303 (McKinney 2005); N.Y.
UNIFORM CITY CT. ACT §§ 1301, 1303 (McKinney 2005).
There is no outside limit on a court-imposed deadline. CPLR 3212(a)
appears to permit a court-imposed rule that would allow summary judgment motions
to be made, for example, 150 days after the filing of the note of issue. See N.Y. C.P.L.R.
3212(a) (McKinney 2005).
Approximately three years prior to the passage of the amendment to CPLR
3212(a), the Report on Reform observed that a proposal barring summary judgment
motions a certain number of days after the filing of the note of issue “appears too harsh
given that cases sometimes are tried years after a note of issue has been filed.” REPORT
ON REFORM, supra note 2, at 9 & n.12.
17
See, e.g., N.Y. COUNTY SUPREME COURT CIVIL BRANCH, R. 17, available at
http://www.courts.state.ny.us/supctmanh/uniform_rules.htm (last visited Jan. 25,
2006) (sixty days from filing note of issue); UNIFORM CIVIL TERM RULES OF THE
SUPREME
COURT,
KINGS
COUNTY,
R.
13,
available
at
http://www.courts.state.ny.us/courts/2jd/kings/civil/civilrules.pdf (last visited Mar. 8,
2006) (sixty days from filing a note of issue).
18
See N.Y. COMP. CODES R. & REGS. tit. 22, § 202.12(c) & (d) (2005) (allowing
court to consider and determine time frames for various matters at preliminary
conference); see also Smith v. Nameth, 25 A.D.3d 599, 600, 807 N.Y.S.2d 411, 412 (App.
Div. 2d Dep’t 2006) (holding that court providently exercised its discretion in
entertaining defendant’s motion for summary judgment, made shortly after deadline
established in preliminary conference order); Milano v. George, 17 A.D.3d 644, 645, 792
N.Y.S.2d 906, 907 (App. Div. 2d Dep’t 2005) (mem.) (affirming denial of defendant’s
motion for summary judgment, made one day beyond the court-imposed deadline of 90
days after the filing of the note of issue).
19
See, e.g., DiMetteo v. County of Nassau, No. 12089-02, 2005 WL 1644921
(N.Y. Sup. Ct. Nassau County May 9, 2005) (although certification order required
service of summary judgment motions within 60 days of filing of note of issue, court
still considered motion on its merits).
15
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days after the filing of the note of issue, except with leave of
court on good cause shown.” 20
III.
THE COURT OF APPEALS INTERPRETS CPLR 3212(a)’S
TIMELINESS REQUIREMENTS
The Court of Appeals’ 2004 decision in Brill v. City of
New York 21 provided a strict interpretation of the 1997
amendment, which has had a substantial impact in many
subsequent cases. 22 In Brill, the City moved for summary
judgment well after CPLR 3212(a)’s 120-day period had
expired, asserting that it had no prior written notice of the
alleged defect that caused plaintiff’s fall. 23 Despite the fact that
the City failed to establish good cause for the delay, both the
supreme court and the Appellate Division considered the
motion in the interests of judicial economy, noting that plaintiff
could not demonstrate prejudice in the face of this meritorious
defense. 24 The Court of Appeals reversed, holding that a motion
for summary judgment can only be entertained after 120 days
from the filing of the note of issue if the movant can show “good
cause,” i.e., “a satisfactory explanation for the untimeliness.” 25
The merits of the motion and the lack of prejudice to the
respondent, which had supported good cause determinations in
prior lower court cases, were deemed irrelevant to a
determination of good cause under CPLR 3212(a). 26
Brill’s holding became further entrenched just five
months later in Miceli v. State Farm Mutual Automobile
Insurance Company, in which the Court specifically noted that
the merits of a summary judgment motion cannot constitute
good cause to extend CPLR 3212(a)’s 120-day period. 27 In the
aftermath of Brill and Miceli, it is now clear that courts lack
the power to extend the legislative time period to move for
summary judgment on the basis of “the interests of justice” or
20
N.Y. C.P.L.R. 3212(a) (McKinney 2005).
2 N.Y.3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 (2004).
22
As of this writing, in a period of twenty-two months, Brill has been cited in
over ninety-three reported decisions and by over sixty secondary sources.
23
Brill, 781 N.Y.S.2d at 266.
24
Id.
25
Id. at 264.
26
Id.
27
3 N.Y.3d 725, 726-27, 819 N.E.2d 995, 996, 786 N.Y.S.2d 379, 380 (2004)
(mem).
21
2006]
CPLR 3212(a)’S TIMING REQUIREMENT
1537
“judicial economy,” regardless of the merits of the motion and
the absence of prejudice to the opponent. 28
IV.
CALCULATING CPLR 3212(a)’S TIME PERIOD
The Court of Appeals’ strict interpretation of CPLR
3212(a) necessitates that lawyers carefully calculate the
deadline for making a summary judgment motion. 29 This
requires a prospective movant to: (1) ascertain the period of
time for making a summary judgment motion, (2) ascertain the
date on which CPLR 3212(a)’s time period begins to run, and
(3) perform the steps required to “make” the motion within the
period.
A.
Various Time Periods for Making Motion for Summary
Judgment and Their Accrual
At the outset, a lawyer planning to move for summary
judgment must determine if the court has set a deadline
pursuant to CPLR 3212(a). 30 If a court has not set its own date
within which a motion for summary judgment must be made,
CPLR 3212(a) generally provides that the “motion shall be
made no later than one hundred twenty days after the filing of
the note of issue.” 31 The 120-day period runs from the “filing” of
a paper, not its service, and should not be the beneficiary of
CPLR 2103(b)(2)’s five-day extension. 32 This has already caused
28
See, e.g., Perini Corp. v. City of New York, 16 A.D.3d 37, 39-40, 789
N.Y.S.2d 29, 31 (App. Div. 1st Dep’t 2005). In Rivera v. Toruno, 19 A.D.3d 473, 796
N.Y.S.2d 708 (App. Div. 2d Dep’t 2005), defendant advanced an argument similar to
the City’s contentions in Brill in an attempt to establish good cause. Rather than
emphasizing the merits of the motion for summary judgment, defendant sought to
establish good cause based on “the obvious lack of merit of the plaintiff’s case.” Id. at
709. The court rejected the argument, relying on Brill, because defendant failed to
provide a satisfactory explanation for the delay. Id.
29
See, e.g., Milano v. George, 792 N.Y.S.2d 906, 907 (App. Div. 2d Dep’t 2005)
(mem.) (affirming order denying motion for summary judgment made one day past
CPLR 3212(a)’s deadline); Dibella v. Long Island Jewish Med. Ctr., No. 18591/02,
N.Y.L.J., March 1, 2005, at 21 (N.Y. Sup. Ct. Nassau County) (denying motion for
summary judgment served three days after time period authorized by CPLR 3212(a)).
The Dibella court improperly added five days to the period within which motions could
be made. See infra notes 32-33, and accompanying text.
30
See supra notes 16-19 and accompanying text.
31
N.Y. C.P.L.R. 3212(a) (McKinney 2005). This discussion assumes that
there is no good cause to allow the filing of the motion beyond CPLR 3212(a)’s time
frame. A prudent lawyer will make this assumption at the outset of virtually every
case.
32
CPLR 2103(b)(2) only grants a five-day extension “where a period of time
prescribed by law is measured from the service of a paper and service is by mail . . . .”
N.Y. C.P.L.R. 2103(b)(2) (McKinney 2005). The five-day extension may, however, apply
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some confusion in the cases, which have recognized a five-day
extension in this context. 33 Although the party filing the note of
issue must also serve it, 34 and can accomplish service by mail, 35
the moment of service is irrelevant for computing CPLR
3212(a)’s 120-day period.
B.
“Making” the Motion for Summary Judgment in a
Timely Fashion
Once a party moving for summary judgment has
ascertained the relevant time period under CPLR 3212(a) and
the moment at which it begins to run, she must ensure that she
“makes” the motion before the deadline expires. A motion on
notice is deemed “made when a notice of the motion or an order
to show cause is served,” not the date when the motion is filed
or made returnable. 36 CPLR 2103(b) offers many options for
if the court sets a time period for the making of summary judgment motions, and the
period runs from the service of a paper. Id.
33
Krasnow v. JRBG Mgt. Corp., 25 A.D.3d 479, 480, 808 N.Y.S.2d 75, 76
(App. Div. 1st Dep’t 2006); Szabo v. XYZ, Two Way Radio Taxi Ass’n, 267 A.D.2d 134,
135, 161, 700 N.Y.S.2d 179, 180 (App. Div. 1st Dep’t 1999); Connolly v. City of New
York, N.Y.L.J., Mar. 7, 2005, at 19 (N.Y. Sup. Ct. Bronx County); Dibella, N.Y.L.J.,
Mar. 1, 2005, at 21. Connolly based its holding on the First Department’s ruling in
Szabo, 700 N.Y.S.2d at 180, which held that a party moving for summary judgment
cannot be charged with knowledge of the running of CPLR 3212(a)’s time period until
service of the note of issue by mail is completed. Szabo, in turn, relied on Levy v.
Schaefer, 160 A.D.2d 1182, 1183, 555 N.Y.S.2d 192, 194 (App. Div. 3d Dep’t 1990) in
support of this conclusion. Levy addressed the twenty-day period in which a party must
move to vacate a note of issue if a case is not ready for trial. See also N.Y. COMP. CODES
R. & REGS. tit. 22, § 202.21(e) (2005). This time period, unlike the one in CPLR 3212(a),
is measured from the service of a paper. Id. Therefore, Levy properly concluded that
CPLR 2103(b)(2)’s five-day period can extend the time within which a party must move
to vacate the note of issue. Levy’s reasoning is not, however, applicable to the 120-day
period in CPLR 3212(a), which does not begin to run upon the mailing of a paper.
34
CPLR 3402(a) allows a party to “place a case upon the calendar by filing,
within ten days after service, with proof of such service two copies of a note of issue
with the clerk . . . .” N.Y. C.P.L.R. 3402(a) (McKinney 2005). See also N.Y. COMP.
CODES R. & REGS. tit. 22, § 202.21(a) (2005) (requiring filing of note of issue
accompanied by certificate of readiness, with proof of service on all parties, to place
case on trial calendar).
35
See N.Y. C.P.L.R. 2103(b) (McKinney 2005) (authorizing several methods
for service of interlocutory papers).
36
N.Y. C.P.L.R. 2211 (McKinney 2005). See, e.g., Russo v. Eveco Dev. Corp.,
256 A.D.2d 566, 566, 683 N.Y.S.2d 566, 567 (App. Div. 2d Dep’t 1998); LaSorsa v.
Corrigan, 256 A.D.2d 313, 314, 681 N.Y.S.2d 300, 301 (App. Div. 2d Dep’t 1998);
Greenfield v. Philles Records, Inc., 160 A.D.2d 458, 459, 553 N.Y.S.2d 771, 772 (App.
Div. 1st Dep’t 1990); Ghumman v. Abdelshahid, No. 2002-1301 K C., 2003 WL
21696982, at *1 (N.Y. App. Term 2d & 11th Jud. Dists. June 24, 2003); Bouilland v.
Angulo, 5 Misc. 3d 1031(A), No. 114116-01, 2004 WL 2941569, at *1 (N.Y. Sup. Ct. New
York County Sept. 27, 2004); Dugas v. Bernstein, 5 Misc. 3d 818, 825, 786 N.Y.S.2d
708, 713-14 (Sup. Ct. New York County 2004); Siegel, Practice Commentaries,
McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C2211:4 (1991); DAVID D. SIEGEL, NEW
YORK PRACTICE § 243 (4th ed. 2005); see also Thompson v. Leben Home for Adults, 17
2006]
CPLR 3212(a)’S TIMING REQUIREMENT
1539
serving motions, 37 but service by mail is the most common
method. 38 Service of a motion by mail is “complete upon
mailing,” 39 not when the papers are received.
If a motion is made by order to show cause, rather than
with a notice of motion, 40 the motion is deemed made when the
papers are served, not on the date that the order to show cause
is signed by the judge. 41 An order to show cause will typically
A.D.3d 347, 348, 792 N.Y.S.2d 597, 598 (App. Div. 2d Dep’t 2005) (“The defendants’
untimely cross motion for summary judgment should not have been considered in view
of their failure to offer a satisfactory explanation for not serving it within 120 days of
the filing of the note of issue . . . .”).
Cases incorrectly indicating that summary judgment motions are made
either when filed, dated or returnable are legion. See, e.g., Balcerzak v. DNA
Contracting, LLC, 9 Misc. 3d 524, 531, 802 N.Y.S.2d 324, 329 (Sup. Ct. Kings County
2005); Buckner v. City of New York, 9 Misc. 3d 510, 514, 800 N.Y.S.2d 333, 336 (Sup.
Ct. New York County 2005); Singh v. Deopaul, 8 Misc. 3d 1019(A), No. 46334-01, 2005
WL 1774139 (N.Y. Sup. Ct. Kings County July 12, 2005); Newsday, Inc. v.
Nelkenbaum, 8 Misc. 3d 1005(A), 801 N.Y.S.2d 779 (N.Y. Civ. Ct. Kings County 2005);
Hernandez v. 620 W. 189th Ltd. P’ship, 7 Misc. 3d 198, 792 N.Y.S.2d 822, 823 (Sup. Ct.
New York County 2005); Florczyc v. Stahal, No. 25129-99, 2005 WL 119739, at *1 (N.Y.
Sup. Ct. Kings County Jan. 3, 2005). In Smith v. Nameth, 807 N.Y.S.2d at 412, the
court’s deadline, established in a preliminary conference order, apparently required
that the motion be made returnable by a certain date.
37
N.Y. C.P.L.R. 2103(b) (McKinney 2005). A motion is an interlocutory paper
“served upon a party in a pending action.” Id. Interlocutory papers must be served
upon a party’s attorney. Id. CPLR 2103(b) lists seven methods for serving an
interlocutory paper upon a party’s attorney. N.Y. C.P.L.R. 2103(b)(1)-(7). Each paper
served on any party must be served on any other party who has appeared in the action.
N.Y. C.P.L.R. 2103(e). Therefore, a motion must be served on all parties who have
appeared in an action, even if the relief is not sought from them. See SIEGEL, supra
note 36, § 203.
38
See SIEGEL, supra note 36, § 202.
39
N.Y. C.P.L.R. 2103(b)(2) (McKinney 2005). See N.Y. C.P.L.R. 2103(f)(1)
(McKinney 2005) (“mailing” means depositing paper in a properly addressed “first class
postpaid wrapper” in a post office or official depository of the United States Postal
Service “within the state”); Dugas, 786 N.Y.S.2d at 713-14. If the motion is mailed from
outside New York State, it will not be deemed “made” on the date it is mailed but
rather the date it was received. See Nat’l Org. for Women v. Metro. Life Ins. Co., 70
N.Y.2d 939, 519 N.E.2d 618, 524 N.Y.S.2d 672 (1988) (service was not “complete”
within meaning of CPLR 2103(b)(2) when papers were mailed in Washington, D.C.).
40
N.Y. C.P.L.R. 2214(d) (McKinney 2005) (“The court in a proper case may
grant an order to show cause, to be served in lieu of a notice of motion, at a time and in
a manner specified therein.”).
41
N.Y. C.P.L.R. 2211 (McKinney 2005) (“A motion on notice is made when a
notice of the motion or an order to show cause is served.”) (emphasis added). See
Mortgage Affiliates Corp. v. Jerder Realty Serv., Inc., 62 A.D.2d 591, 593, 406 N.Y.S.2d
326, 327 (App. Div. 2d Dep’t 1978), aff’d 47 N.Y.2d 796, 391 N.E.2d 1011, 417 N.Y.S.2d
930 (1979) (motion to enter a deficiency judgment pursuant to Real Property Actions &
Proceedings Law §1371 brought on by order to show cause is made when served and
not when signed by judge); Slane v. Kalache, 7 Misc. 3d 717, 721, 794 N.Y.S.2d 835,
838 (Sup. Ct. Bronx County 2005) (motion for summary judgment deemed made when
order to show cause served, not when papers presented to court for signing); Property
Clerk, N.Y.C. Police Dept. v. Chevers, N.Y.L.J., Mar. 26, 1991, at 22 (N.Y. Sup. Ct.
New York County) (where court signed order to show cause on last day for bringing
motion, but movant did not serve motion until later date, motion was untimely).
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require more than one form of service, and the movant must be
careful to carry out all service steps ordered by the judge prior
to the expiration of the relevant period in CPLR 3212(a).
C.
Timeliness of Cross-Motion for Summary Judgment
Timeliness issues frequently occur in the context of
cross-motions for summary judgment. CPLR 2215 authorizes a
party to make a cross-motion three days prior to the time a
motion is noticed to be heard, but is silent on what act
constitutes the making of the cross-motion. 42 A party making a
cross-motion for summary judgment should assume that the
motion is “made” when the cross-motion is served, not when
the original motion was served. 43 In Bressingham v. Jamaica
Hospital Medical Center, 44 the court concluded that defendant’s
cross-motion for summary judgment was untimely and should
not have been entertained without a showing of good cause for
the delay. The court noted that the codefendant’s original
motion for summary judgment could have provided good cause
to consider the untimely motion “had the motion and crossmotion been nearly identical.” 45 This is a slim reed on which to
42
N.Y. C.P.L.R. 2215 (McKinney 2005). Regardless of whether a party makes
a motion or cross-motion for summary judgment, the party must pay a fee of $45 if the
action is pending in supreme or county court. N.Y. C.P.L.R. 8020(a) (McKinney Supp.
2006) (“[T]he county clerk shall be entitled to a fee of forty-five dollars upon the filing
of each motion or cross-motion.”). See also N.Y. C.P.L.R. 8022(b) (McKinney Supp.
2006) (“[T]he clerks of the appellate divisions of the supreme court and the clerk of the
court of appeals are entitled, upon the filing of each motion or cross-motion with
respect to a civil appeal or special proceeding, to a fee of forty-five dollars.”). As to
issues related to the fee imposed on the making of a motion or cross-motion, see
generally 142 Siegel’s Practice Review, Logistics of Collecting Fees for Motions Impose
Expense in Time on Courts as well as Lawyers, to the Point Even of Offsetting the Fees
Collected, at 1 (Nov. 2003); 137 Siegel’s Practice Review, As of July 14, 2003,
Administrative Problems for Courts and Procedural Pitfalls for Parties Abound as Fees
are Imposed for Making Motions and Cross-Motions, and Filing of Settlements is Made
Mandatory (Part II), at 1 (July 2003); 136 Siegel’s Practice Review, Administrative
Problems for Courts and Procedural Pitfalls for Parties Abound as Fees are Imposed for
Making Motions and Cross-Motions, and Filing of Settlements is Made Mandatory
(Part I), at 1 (June 2003).
43
Dugas, 786 N.Y.S.2d at 713-14.
44
17 A.D.3d 496, 496-97, 793 N.Y.S.2d 176, 176 (App. Div. 2d Dep’t 2005).
45
Id. at 176. Bressingham’s conclusion that a court can consider a late crossmotion if it is “nearly identical” to a timely motion is based on caselaw that pre-dates
Brill. See Boehme v. A Program Planned for Life Enrichment, Inc., 298 A.D.2d 540,
542, 749 N.Y.S.2d 49, 51 (App. Div. 2d Dep’t 2002); Miranda v. Devlin, 260 A.D.2d 451,
452, 688 N.Y.S.2d 578, 579 (App. Div. 2d Dep’t 1999). See also James v. Jamie Towers
Hous. Co., 294 A.D.2d 268, 272, 743 N.Y.S.2d 85, 89 (App. Div. 1st Dep’t 2002), aff’d 99
N.Y.2d 639, 640, 790 N.E.2d 1147, 1148, 760 N.Y.S.2d 718, 720 (2003); Rosa v. RH
Macy Co., 272 A.D.2d 87, 87, 707 N.Y.S.2d 407, 409 (App. Div. 1st Dep’t 2000). Boehme
and Miranda also relied on the fact that the late cross-motions for summary judgment
were meritorious and did not prejudice the respondent. Boehme, 749 N.Y.S.2d at 51;
2006]
CPLR 3212(a)’S TIMING REQUIREMENT
1541
establish good cause and, until the Court of Appeals approves
of this linkage, the careful lawyer desiring to make a summary
judgment motion should ensure that she independently
satisfies CPLR 3212(a)’s time period. 46
There is still hope for a party who can no longer crossmove for summary judgment because of a failure to comply
with CPLR 3212(a)’s timing requirements. In the event that
another party in the action has made a timely motion for
Miranda, 688 N.Y.S.2d at 579. These factors can no longer be considered after Brill
and Miceli. See supra notes 25-28 and accompanying text.
Nonetheless, in DiMetteo v. County of Nassau, 8 Misc. 3d at 1013(A), No.
12089-02, 2005 WL 1644921, at *1 (N.Y. Sup. Ct. Nassau County May 9, 2005), the
court considered a cross-motion seeking dismissal of plaintiff’s complaint, which was
served 16 days after the period set by the court for making summary judgment motions
had expired. The cross-motion sought dismissal of the plaintiff’s complaint on the same
grounds as a timely motion made by a codefendant. Id. at *1. The court in DiMetteo,
while applying the rule propounded in Bressingham, 793 N.Y.S.2d at 176, noted that
the “nearly identical” test “appears to contradict Brill’s core holding – that the Court
has no discretion to excuse the late service of any motion for summary judgment unless
there is a satisfactory explanation for the untimely motion.” DiMetteo, 2005 WL
1644921, at *1.
That portion of Nassau County’s cross-motion which sought dismissal of
plaintiff’s complaint was not, technically, a cross-motion. CPLR 2215’s language allows
a party to demand relief from a “moving party” with a cross-motion served three days
prior to the return date of the main motion. N.Y. C.P.L.R. 2215 (McKinney 2005).
Although the “relief need not be responsive to that demanded by the moving party,” the
statute contemplates that the relief be sought from the moving party. Id. See Mango v.
Long Island Jewish-Hillside Med. Ctr., 123 A.D.2d 843, 844, 507 N.Y.S.2d 456, 458
(App. Div. 2d Dep’t 1986) (“A cross-motion is an improper vehicle for seeking
affirmative relief from a nonmoving party.”). Courts will frequently forgive this
technical defect if it does not result in prejudice and the nonmoving party is afforded
ample opportunity to be heard on the merits of the relief sought. See, e.g., Sheehan v.
Marshall, 780 N.Y.S.2d 34 (App. Div. 2d Dep’t 2004); Dugas, 786 N.Y.S.2d at 713 n.2.
These factors are not, however, appropriate considerations in determining “good cause”
under CPLR 3212(a). See supra notes 21-28 and accompanying text.
For example, in Gaines v. Shell-Mar Foods, Inc., 21 A.D.3d 986, 801
N.Y.S.2d 376 (App. Div. 2d Dep’t 2005), a codefendant moved for summary judgment
142 days after the note of issue was filed. Although it denominated its motion a “crossmotion,” the court concluded that “its effort to ‘piggyback’ on its codefendant’s timely
motion for summary judgment is unavailing since a cross-motion can only be made for
relief against a ‘moving party’ and the plaintiff was not a ‘moving party.’” Id. at 377
(citations omitted). The court held that the codefendant’s contentions that no prejudice
resulted from delay and that its motion was meritorious were insufficient grounds to
establish good cause. Id.
46
Bejarano v. City of New York, 18 A.D.3d 681, 795 N.Y.S.2d 732 (App. Div.
2d Dep’t 2005) (late cross-motion denied in its entirety for failure to offer satisfactory
explanation; no discussion of relation of cross-motion to main motion); Thompson v.
Leben Home for Adults, 792 N.Y.S.2d 597, 598 (App. Div. 2d Dep’t 2005) (same); Colon
v. City of New York, 15 A.D.3d 173, 173, 788 N.Y.S.2d 606, 606 (App. Div. 1st Dep’t
2005) (same); Gonzalez v. ZAM Apartment Corp., 11 A.D.3d 657, 658, 782 N.Y.S.2d
922, 922-23 (App. Div. 2d Dep’t 2004) (same). But see Osario v. BRF Constr. Co., 23
A.D.3d 202, 203, 803 N.Y.S.2d 525, 526 (App. Div. 1st Dep’t 2005) (holding that motion
court properly considered plaintiff’s cross-motion for partial summary judgment, which,
although untimely, was made in response to defendant’s timely summary judgment
motion).
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summary judgment, the dilatory movant may obtain relief if
the court “searches the record” on the underlying motion. 47 A
court searches the record when, in the course of its
consideration of a pending summary judgment motion, it
grants summary judgment to a non-moving party. 48 This
procedure is expressly authorized by CPLR 3212(b). 49 While a
potent weapon, the court’s search of the record is confined to
those causes of action or issues which are the subject of the
underlying motion. 50 Since any relief awarded to a non-moving
party under a search of the record is strictly limited by the
relief sought by the movant, the procedure may prove fruitless
for the non-movant. The decision to search the record is the
court’s to make, and no request by a non-moving party is
required. A party seeking relief on the back of another party’s
summary judgment motion should, however, ask the court to
search the record, marshal the evidence favorable to her
position, and highlight in her answering papers why judgment
as a matter of law should be awarded in her favor.
D.
Effect of Mistrial on CPLR 3212(a)’s Timing
Requirements
If a mistrial occurs and a new trial is required, it will
not extend the period in CPLR 3212(a). In Hesse v. Rockland
County Legislature, 51 the trial court improperly exercised its
discretion by entertaining a late motion for summary
judgment, without good cause, following a mistrial. There may
47
N.Y. C.P.L.R. 3212(b) (McKinney 2005).
See SIEGEL, supra note 36, § 282.
49
CPLR 3212(b) provides, in pertinent part, that “[i]f it shall appear that any
party other than the moving party is entitled to a summary judgment, the court may
grant such judgment without the necessity of a cross-motion.” N.Y. C.P.L.R. 3212(b)
(McKinney 2005).
50
See, e.g., Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-30, 676 N.E.2d
1178, 1180, 654 N.Y.S.2d 335, 337 (1996); Cortez v. Countrywide Ins. Co., 17 A.D.3d
508, 509, 793 N.Y.S.2d 189, 189-90 (App. Div. 2d Dep’t 2005); Sullivan v. Troser Mgmt.,
Inc., 15 A.D.3d 1011, 1012, 791 N.Y.S.2d 231, 232 (App. Div. 4th Dep’t 2005); WFR
Assoc. v. Mem’l Hosp., 14 A.D.3d 840, 841, 788 N.Y.S.2d 459, 460 (App. Div. 3d Dep’t
2005); Baseball Office of the Comm’r v. Marsh & McLennan, Inc., 295 A.D.2d 73, 82,
742 N.Y.S.2d 40, 48 (App. Div. 1st Dep’t 2002); see also Siegel, Practice Commentaries,
McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3212:23 (2005); SIEGEL, supra note
36, § 282.
51
18 A.D.3d 614, 614, 795 N.Y.S.2d 339, 340 (App. Div. 2d Dep’t 2005). Cf.
Noble v. Cole, 267 A.D.2d 702, 702-03, 699 N.Y.S.2d 527, 527 (App. Div. 3d Dep’t 1999)
(expert testimony barred at retrial because prior order precluding it during first trial
was now law of the case); Hothan v. The Metro. Suburban Bus Auth., N.Y.L.J., Nov. 21,
2002, at 24 (N.Y. Sup. Ct., Nassau County) (defendant allowed to call expert witness
barred from use at first trial); see generally Connors, Practice Commentaries,
McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3101:29A (2005).
48
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be circumstances, however, in which the evidence submitted at
the first trial forms the basis for a subsequent summary
judgment motion. 52 If this evidence was not previously
available, and it forms the basis for the motion, it could form
the basis of a good-cause determination. 53
E.
Cases Stricken from the Trial Calendar
If a case is stricken from the trial calendar, however,
and a subsequent note of issue is filed, a new period under
CPLR 3212(a) may be available for moving for summary
judgment. In Slane v. Kalache, plaintiff served and filed a note
of issue and certificate of readiness and maintained that the
case was ready for trial. 54 Approximately eighteen months
later, the case was stricken from the trial calendar because
plaintiff’s illness prevented her from proceeding to trial. 55 After
the expiration of another eighteen months, the court granted
plaintiff’s motion to restore the case to the trial calendar,
contingent upon plaintiff filing a new note of issue. 56 The Slane
court held that “the service and filing of the second note of
issue in the case, pursuant to a restoration order, constitutes a
new note of issue, restarting the 120-day period within which
to move for summary judgment.” 57
The result in Slane could lead to mischief, by awarding
a dilatory party a new opportunity to move for summary
judgment. For example, a case may be stricken from the trial
calendar if a party fails to attend a calendar call or appears
without being ready to proceed. 58 In some circumstances, this
52
See 161 Siegel’s Practice Review, Even After Mistrial, No Summary
Judgment May Be Allowed, at 2 (May 2005).
53
Id.
54
794 N.Y.S.2d 835, 836 (Sup. Ct. Bronx County 2005). No summary
judgment motion was made by any of the defendants during the pendency of the first
note of issue.
55
Id. The plaintiff’s illness was apparently disclosed at the pretrial
conference. Id. See N.Y. COMP. CODES R. & REGS. tit. 22, § 202.26 (2005) (requiring
judge to order pretrial conference within 15 to 45 days before anticipated trial date to
discuss various issues with the aim of narrowing the issues for trial).
56
Slane v. Kalache, 794 N.Y.S.2d 835, 836 (Sup. Ct. Bronx County 2005).
57
Id. at 837.
58
N.Y. C.P.L.R. 3404 (McKinney 2005) (requiring party to restore case to
trial calendar within one year from when case was “marked ‘off’ or struck from the
calendar”; failure to restore case within one year required that it “be deemed
abandoned and shall be dismissed”). See N.Y. COMP. CODES R. REGS., tit. 22, § 202.27
(2005) (where parties do not appear and proceed or announce their readiness to
proceed, judge may, among other things, note default and dismiss action); see generally
SIEGEL, supra note 36, § 376; infra notes 217-53 and accompanying text.
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will require the filing and service of a new note of issue. 59
Courts should be circumspect in allowing a party who has
caused the delay any additional time to move for summary
judgment. 60 To avoid an extension of the period in CPLR
3212(a), the court could order a subsequent note of issue to be
filed “nunc pro tunc,” which would simply amend the original
note of issue without affecting its filing date. 61 On the other
hand, if a note of issue is stricken based on outstanding
disclosure, 62 CPLR 3212(a)’s time period should run from the
filing of the subsequent note of issue. 63
Cases are frequently transferred from supreme court to
the New York City Civil Court, either on consent 64 or without
59
“A case marked off pursuant to CPLR 3404 does not automatically result in
the vacatur of the note of issue.” Basetti v. Nour, 287 A.D.2d 126, 133, 731 N.Y.S.2d 35,
40-41 (App. Div. 2d Dep’t 2001) (analyzing four possible options for court where party
fails to appear or is unable to proceed after filing of note of issue). Basetti holds that
“[i]f the court chooses to vacate the note of issue, the certificate of readiness must be
incorrect in some material way. The basis for vacatur cannot be that the plaintiff failed
to appear or for some other reason is unable to proceed.” Id. at 41. See infra notes 23153 and accompanying text (discussing four options for court in context of Brill
problem).
60
Courts have inherent authority to condition the restoration under CPLR
3404. See, e.g., Indrunas v. Escher Constr. Corp., 277 A.D.2d 28, 28, 716 N.Y.S.2d 10,
11 (App. Div. 1st Dep’t 2000) (plaintiffs’ motion to vacate order dismissing complaint
pursuant to CPLR 3404 granted, upon condition that plaintiffs’ counsel pay to each
separately appearing defendant $1,250); Sanchez v. Javind Apartment Corp., 246
A.D.2d 353, 353, 667 N.Y.S.2d 708, 709 (App. Div. 1st Dep’t 1998) (plaintiff’s motion to
restore case to trial calendar granted, upon condition that plaintiff’s counsel pay $5,000
to defendant); Barrada v. Target Constr. Corp., 31 A.D.2d 810, 810, 299 N.Y.S.2d 708,
708-09 (App. Div. 2d Dep’t 1969) (plaintiff’s motion to restore case to trial calendar
granted, upon condition that costs be paid); Hood v. City of New York, 4 Misc. 3d 627,
632-33, 781 N.Y.S.2d 431, 435 (Sup. Ct. Bronx County 2004) (plaintiff’s motion to
restore case to trial calendar granted, upon condition that plaintiff’s counsel pay $500
to municipal defendant). Therefore, courts appear to have the power to condition an
order requiring the refiling of a note of issue to limit the ability to make any
subsequent motions for summary judgment. See Basetti, 731 N.Y.S.2d at 41 (“[T]he
trial court’s discretion is paramount and it alone has the ability to appropriately
dispose of cases appearing on the trial calendar.”). Regardless of whether the court
exercises this authority, a party should still be permitted to move for summary
judgment “on good cause shown.” N.Y. C.P.L.R. 3212(a) (McKinney 2005). See infra
Section V.C.1 & 2 and accompanying text. N.Y. COMP. CODES R. & REGS. tit. 22,
§ 202.21(e) (2005) also allows the vacatur of the note of issue in several circumstances.
Section 202.21(f) outlines the standards for reinstating the note of issue after vacatur.
61
In Weitzner v. Elazarov, 189 Misc. 2d 646, 647, 735 N.Y.S.2d 362, 363 (Sup.
Ct. Kings County 2001) the court permitted the first note of issue to be amended and
refiled “nunc pro tunc” to add a demand for a jury trial. “Treating the new filing ‘now
for then,’ the new filing merely amended the prior note of issue and had the same effect
as if originally filed.” Id. Therefore, the court held that the refiling of the note of issue
did not extend the time in which to make a motion for summary judgment. Id.
62
See infra notes 83-84 and accompanying text.
63
This will allow a party to obtain necessary disclosure for a summary
judgment motion, without facing an untimeliness problem under CPLR 3212(a).
64
N.Y. C.P.L.R. 325(c) (McKinney 2005).
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CPLR 3212(a)’S TIMING REQUIREMENT
1545
it. 65 If a case is transferred to a New York City Civil Court after
a note of issue has been filed, questions may arise as to
whether a party may move for summary judgment in the lower
court after the transfer. In Istrefovic v. Santos, 66 the case was
transferred by supreme court to the civil court pursuant to
CPLR 325(d). 67 Apparently unaware of the transfer, defendant
mistakenly made an otherwise timely motion for summary
judgment in the supreme court, which was returned. 68 To the
moving party’s chagrin, the court relied on the uniform rules of
the New York City Civil Court, which generally require that
transferred actions be placed on the trial calendar so they are
reached for trial as if the note of issue had been originally filed
in the civil court. 69 Thus, the court concluded that the motion
for summary judgment subsequently served in civil court was
untimely. 70 In addition, defendant failed to provide any good
cause for the delay. 71
V.
WHAT CONSTITUTES “GOOD CAUSE” UNDER CPLR
3212(a)?
Demonstrating good cause is now the key to the door
that CPLR 3212(a) has closed in the face of a dilatory movant.
This section will first explore the matter of presenting the issue
65
N.Y. C.P.L.R 325(d) (McKinney 2005). See 22 N.Y. COMP. CODES R. &
REGS. tit. 22, § 202.13 (2005). See generally SIEGEL, supra note 36, § 27.
66
No. 554-2002, 2004 WL 3245351 (N.Y. Civ. Ct. Bronx County Oct. 4, 2004).
67
Id. at *1. A transfer under CPLR 325(d) does not require consent. N.Y.
C.P.L.R. 325(d) (McKinney 2005). CPLR 3212(a)’s time period applies in the New York
City Civil Courts. See N.Y. C.P.L.R. 101 (McKinney 2005); N.Y. CITY CIV. CT. ACT
§ 2102 (McKinney 2005).
68
Istrefovic, 2004 WL 3245351, at *1. The motion was served and filed in the
New York Supreme Court within 120 days of the filing of the note of issue in that
court. The motion was “returned by the court because the motion was incorrectly
served in Supreme Court.” Id.
69
N.Y. COMP. CODES R. & REGS. tit. 22 § 208.15 (2005) (“Actions transferred
from the Supreme Court to the Civil Court of the City of New York shall be placed in
such order and relative position on the appropriate calendars that they will be reached
for trial insofar as practicable as if a notice of trial had been filed in the Civil Court of
the City of New York for the same date as that for which the note of issue was filed in
the Supreme Court.”).
70
Istrefovic, 2004 WL 3245351 at *1. The court observed that no new “Notice
of Trial” was required to be filed in Civil Court. Id.; see 22 N.Y. COMP. CODES R. &
REGS. tit. 22, § 208.17 (2005) (governing procedure applicable to filing Notice of Trial
and Certificate of Readiness in the New York City Civil Court).
71
Istrefovic, 2004 WL 3245351 at *2. The defendant requested the court to
entertain the delayed motion “in the interests of justice and in the absence of prejudice
to the plaintiff.” Id. The court held that these grounds do not constitute good cause
under Brill’s holding. See supra notes 25-28 and accompanying text.
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of good cause to the court, and will then examine recognized
and potential excuses constituting good cause.
A.
Adjudication of Good Cause
The issue of the timeliness of a summary judgment
motion will principally arrive before a court in an affirmation of
counsel, submitted in support of or in opposition to a pending
motion. 72 In light of the language employed by the courts
regarding the necessity of the showing of good cause to consider
a belated summary judgment motion, counsel for the movant
should raise this issue in her affirmation in support of the
motion, and proffer good cause for the delay in making the
motion. 73
In the event that the dilatory movant fails to address
the issue of good cause, the party opposing the motion should
raise the issue of the timeliness of the motion in her papers
opposing the motion. 74 Counsel for the party opposing the
72
See, e.g., Dettmann v. Page, 18 A.D.3d 422, 422, 794 N.Y.S.2d 406, 406
(App. Div. 2d Dep’t 2005); Koloski v. Metro. Life Ins. Co., 5 Misc. 3d 1028(A), 799
N.Y.S.2d 161, No. 600231-02, 2004 WL 2903626 (N.Y. Sup. Ct. New York County Nov.
3, 2004); Lawrence v. Kuo, 5 Misc. 3d 1019(A), No. 265971-01, 2004 WL 2683632 (N.Y.
Sup. Ct. Queens County Aug. 16, 2004).
73
See, e.g., McNeill v. Menter, 19 A.D.3d 1161, 1162, 797 N.Y.S.2d 230, 231
(App. Div. 4th Dep’t 2005) (“Because defendant offered no explanation for her failure to
move during the 120 days after the filing of the note of issue, the court erred in
excusing its untimeliness.”) (citation omitted); Rivera v. Toruno, 796 N.Y.S.2d 708, 709
(App. Div. 2d Dep’t 2005) (“[I]n the absence of a satisfactory explanation for the delay
in filing the summary judgment motion, the motion should not have been considered,
even if it appeared to be meritorious.”) (citation omitted); Nobile v. Town of Hempstead,
17 A.D.3d 647, 647, 792 N.Y.S.2d 910, 910 (App. Div. 2d Dep’t 2005) (“The Supreme
Court improvidently exercised its discretion in considering the defendant’s untimely
motion for summary judgment, since the defendant failed to show good cause for the
delay.”) (citation omitted); Bressingham v. Jamaica Hosp. Med. Ctr., 793 N.Y.S.2d 176,
176 (App. Div. 2d Dep’t 2005) (“The branch of the cross-motion of defendant Jamaica
Hospital Medical Center which was for summary judgment dismissing the complaint
insofar as asserted against it, made more than 120 days after the filing of the note of
issue, was untimely and should not have been entertained without a showing of good
cause for the delay.”) (citation omitted); Kone v. Ritter Sysco Food Serv., Inc., 15
A.D.3d 627, 627-28, 789 N.Y.S.2d 902, 902 (App. Div. 2d Dep’t 2005) (stating that “[t]he
Supreme Court improvidently exercised its discretion in considering the untimely
motion of the defendant Ritter Sysco Food Service, Inc., for summary judgment in view
of its failure to offer a satisfactory explanation for not serving the motion within 120
days of the filing of the note of issue”); Thompson v. N.Y. City Bd. of Educ., 10 A.D.3d
650, 651, 781 N.Y.S.2d 617, 617 (App. Div. 2d Dep’t 2004) (“The Supreme Court
improvidently exercised its discretion in considering the defendant’s untimely motion
for summary judgment in view of the defendant’s failure to offer a satisfactory
explanation for not serving the motion within 120 days of the filing of the note of
issue . . . .”).
74
See, e.g., Barracks v. Metro North Commuter R.R., 8 Misc. 3d 1024(A), No.
122591-02, 2005 WL 1919100 (N.Y. Sup. Ct. New York County Mar. 18, 2005); Slane v.
Kalache, 794 N.Y.S.2d 835, 836-37 (Sup. Ct. Bronx County 2005).
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CPLR 3212(a)’S TIMING REQUIREMENT
1547
motion should highlight the amount of time the parties had to
make summary judgment motions following the filing of the
note of issue, and demonstrate that the subject motion was
made after the allotted time. The burden will then lie with the
dilatory movant to demonstrate the existence of good cause for
the late motion in a reply. 75
The issue of good cause may also be litigated through a
motion for leave to make a belated summary judgment motion.
Here, the dilatory movant does not move for summary
judgment, but seeks permission to make a belated motion.
Such a tactic was employed by the movant in Cooper v.
Hodge, 76 in which the defendant, without seeking summary
judgment, sought an extension of the period within which to
make the motion. The Fourth Department reversed the order of
the trial court denying the defendant’s motion, but did not
entertain the merits of a summary judgment motion. Rather,
the court simply issued an order granting defendant leave to
file the motion with the supreme court.
The procedural path illustrated in Cooper offers an
efficient and economical alternative to the making of a late
motion for summary judgment. By merely moving for
permission to make a belated summary judgment motion, the
movant need only submit the proof necessary to establish good
cause for the motion, a quantum of proof which should pale in
comparison to the proof necessary to support the summary
judgment motion itself. Concomitantly, the movant, while
testing the quality of its excuse for the late motion, will save
time and financial resources. If the court grants permission to
make a late motion for summary judgment, it should require
that the motion be served promptly to avoid further delay.
75
See Singh v. Deopaul, No. 46334-01, 2005 WL 1774139, at *1-2 (N.Y. Sup.
Ct. Kings County July 12, 2005). Cf. Home Ins. Co. v. Leprino Foods Co., 7 A.D.3d 471,
472, 777 N.Y.S.2d 472, 472-73 (App. Div. 1st Dep’t 2004) (“Plaintiff’s no-oralmodification argument, although raised for the first time on reply, was directly
responsive to defendant’s opposition to the summary judgment motion.”) (citation
omitted); Davison v. Order Ecumenical, 281 A.D.2d 383, 383, 721 N.Y.S.2d 282, 283
(App. Div. 2d Dep’t 2001) (“The Supreme Court properly considered the arguments
raised in the defendants’ reply affirmation, since they were made in direct response to
the plaintiffs’ opposition papers.”) (citation omitted).
76
13 A.D.3d 1111, 1112, 787 N.Y.S.2d 551, 552 (App. Div. 4th Dep’t 2004); see
also Brooks v. Ross, 24 A.D.3d 589, 808 N.Y.S.2d 358 (App. Div. 2d Dep’t 2005)
(supreme court properly granted defendant leave to file a late motion for summary
judgment); Stimson v. E.M. Cahill Co., 8 A.D.3d 1004, 1005, 778 N.Y.S.2d 585, 585
(App. Div. 4th Dep’t 2004) (holding that supreme court erred in denying defendant’s
motion seeking leave to serve a late motion for summary judgment).
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Stipulation to Extend CPLR 3212(a)’s Time Period
What is a court to do if there has been a violation of
CPLR 3212(a)’s timing requirements, but the parties consent or
stipulate to have the untimely motion heard? Several courts,
without dedicating substantial discussion to the matter, have
held or indicated that the untimely motion may be
entertained. 77 More recently, however, in Balcerzak v. DNA
Contracting, LLC, the court held to the contrary. 78
In Balcerzak, the parties entered into a written
stipulation extending the period of time they had to move for
summary judgment. 79 The stipulation was signed by counsel for
each of the parties to the action prior to the filing of the note of
issue. 80 Subsequently, two of the parties made summary
judgment motions within the stipulated time frame, but after
the court-imposed deadline. 81 While acknowledging that parties
generally have the right to chart their own procedural course in
litigation, the court held that the stipulation extending the
time to move for summary judgment contravened the public
policy of the state codified in CPLR 3212(a) and was, therefore,
unenforceable. 82
Given the legislative history of CPLR 3212(a), and the
important concerns expressed by the Court of Appeals in
interpreting the 1997 amendment to the statute, Balcerak’s
77
See Gonzalez v. Zam Apartment Corp., 11 A.D.3d 657, 782 N.Y.S.2d 922,
922 (App. Div. 2d Dep’t 2004); Mignott v. Kreidman, 7 Misc. 3d 1021(A), No. 1001732001, 2005 WL 1118074, at *1 (N.Y. Sup. Ct. New York County Mar. 15, 2005);
Carvajal v. City of New York, 7 Misc. 3d 509, 511, 794 N.Y.S.2d 574, 575-76 (Sup. Ct.
Kings County 2005); see also Buckner v. City of N.Y., 800 N.Y.S.2d 333, 336 (Sup. Ct.
New York County 2005) (stating that parties could have entered into a stipulation
extending the time to make summary judgment motions).
78
9 Misc. 3d 524, 802 N.Y.S.2d 324, 325 (Sup. Ct. Kings County 2005).
79
Id.
80
Id.
81
Id. at 329. The action, pending in Supreme Court, Kings County, was
subject to the Uniform Civil Term Rules of the Supreme Court, Kings County, Rule 13,
which requires all summary judgment motions to be made within 60 days of the filing
of the note of issue. See supra note 17 and accompanying text.
82
Balcerzak, 802 N.Y.S.2d at 329. The parties, having failed to obtain a
judicially sanctioned extension of time (e.g., “so-ordered” stipulation), had their
motions denied as untimely. Id. See Powers v. Solomon, 4 Misc. 3d 1007(A), 791
N.Y.S.2d 872, No. 01-0222, 2004 WL 1586886, at *1 (Sup. Ct. Greene County July 13,
2004) (motions timely made under agreement between parties, but outside time frame
established by court, denied in absence of good cause); Eighteen Assocs., LLC v.
Nanjim Leasing Corp., 4 Misc. 3d 1004(A), 791 N.Y.S.2d 869, No. 12554-97, 2004 WL
1488393, at *3 (Sup. Ct. Kings County June 29, 2004) (“While it is understandable that
the parties herein do not want to relitigate this matter, and as alleged, the granting of
summary judgment may ‘streamline’ the issues and reduce the litigation, that fact
alone does not form the basis for ‘good cause shown.’”).
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CPLR 3212(a)’S TIMING REQUIREMENT
1549
conclusion more closely comports with the purpose of the rule
limiting the time within which to make a motion for summary
judgment.
C.
Demonstrating Good Cause
Broadly stated, good cause is established under CPLR
3212(a) if the movant proffers a reasonable explanation for the
delay in moving for summary judgment. The ingredients
constituting good cause under the facts of a particular case will
vary, but certain trends are emerging.
1. Outstanding Disclosure
This heading, at first glance, might lead to confusion.
The general period within which to obtain pretrial disclosure
terminates with the filing of the note of issue and its loyal
companion, the certificate of readiness. 83 Therefore, under the
design of the CPLR and the Uniform Rules, all parties will
have completed disclosure by the date on which the note of
issue has been filed and will have sufficient time to move for
summary judgment within the confines of CPLR 3212(a). If a
party is served with a note of issue and certificate of readiness
prior to the completion of disclosure, the proper remedy is to
promptly move to vacate the note of issue and identify any
outstanding disclosure. 84 The caselaw in this area
83
N.Y. C.P.L.R. 3402(a) (McKinney 2005) (service and filing of note of issue
places case on trial calendar); N.Y. COMP. CODES R. & REGS. tit. 22, § 202.21(a) (2005)
(note of issue must be accompanied by certificate of readiness in the form prescribed by
this section). The certificate of readiness form requires, among other things, that the
party filing the document verify that disclosure is completed. N.Y. COMP. CODE R. &
REGS. tit. 22, § 202.21(b) (2005). A party is only entitled to disclosure after the filing of
the note if she can establish that “unusual or unanticipated circumstances” warrant it.
N.Y. COMP. CODE R. & REGS. tit. 22, § 202.21(d) (2005).
84
N.Y. COMP. CODE R. & REGS. tit. 22, § 202.21(e) (2005) (party must move to
vacate note of issue and certificate of readiness within 20 days after service; however, a
party may belatedly move upon a showing of good cause, and court may vacate note if
it appears that material fact in certificate of readiness is incorrect). See, e.g., Blamer v.
Singh, 20 A.D.3d 440, 441, 797 N.Y.S.2d 777, 777 (App. Div. 2d Dep’t 2005) (Supreme
Court properly vacated note of issue, sua sponte, based on misrepresentation contained
in certificate of readiness); Simon v. City of Syracuse Police Dept., 13 A.D.3d 1228,
1229, 787 N.Y.S.2d 577, 578 (App. Div. 4th Dep’t 2004) (In light of “the patent untruth
of plaintiff’s certification that discovery had been waived, was unnecessary, or had
been completed. . . . [T]he court should have exercised its power to treat the note of
issue as a nullity and to vacate it sua sponte.” (citation omitted)); Costanza v. Skyline
Towers 5, 8 A.D.3d 524, 525, 778 N.Y.S.2d 720, 721 (App. Div. 2d Dep’t 2004)
(“Supreme Court improvidently exercised its discretion in denying that branch of the
appellant’s motion which was to vacate the note of issue in order to permit it to conduct
discovery proceedings.” (citation omitted)); Lynch v. Vollono, 6 A.D.3d 505, 505, 774
N.Y.S.2d 433, 433 (App. Div. 2d Dep’t 2004) (“A note of issue should be vacated when it
is based upon a certificate of readiness that contains erroneous facts, such as that
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demonstrates, however, that disclosure frequently takes place
after the filing of the note of issue with the consent of the
parties and/or the court’s blessing.
There are many circumstances in which a party, usually
the plaintiff, files a note of issue prematurely to secure a place
on the trial calendar or to comply with a preliminary
conference order. In Gonzalez v. 98 Mag Leasing Corp., 85 for
example, defendants moved to vacate the note of issue filed by
plaintiff because two fact witnesses had not yet been produced
pursuant to a court order. The court declined to vacate the note
of issue, but granted defendants’ motion to the extent of
allowing disclosure to continue. 86 The fact witnesses ultimately
provided favorable testimony for the defendants, which was
used in support of their motion for summary judgment.
Although the motion was made long after the 120-day period in
CPLR 3212(a) had expired, the Court of Appeals held that the
supreme court properly exercised its discretion in concluding
that there was good cause to entertain it. The Court
emphasized that defendants promptly moved to vacate the note
of issue due to the outstanding disclosure and moved for
summary judgment “shortly” after the depositions were
concluded. 87 The procedural history in Gonzalez is somewhat
discovery has been completed.”); Munoz v. 147 Corp., 309 A.D.2d 647, 648, 767
N.Y.S.2d 1, 2 (App. Div. 1st Dep’t 2003) (“The recital in the certificate of readiness that
discovery is complete is obviously incorrect since defendants have not yet been able to
identify and depose essential firefighter witnesses and, thus, the motion to strike the
note of issue should have been granted.” (citation omitted)); see generally Vasquez v.
Gomez, 7 Misc. 3d 958, 796 N.Y.S.2d 869 (Sup. Ct. Bronx County 2005); Bouilland v.
Angulo, No. 114116-01, 2004 WL 2941569, at *1 (N.Y. Sup. Ct. New York County Sept.
27, 2004); 160 Siegel’s Practice Review, Late Summary Judgment Motion, at 4 (Apr.
2005).
85
95 N.Y.2d 124, 126-27, 733 N.E.2d 203, 204-05, 711 N.Y.S.2d 131, 132-133
(2000).
86
Cf. N.Y. COMP. CODES R. & REGS. tit. 22, § 202.21(d) (2005) (where party is
prevented from filing note of issue and certificate of readiness because of reasons
beyond her control, court, upon motion supported by affidavit, may permit party to file
note of issue upon such conditions as court deems appropriate); see also Certified Elec.
Contracting Corp. v. City of New York, 23 A.D.3d 596, 598, 804 N.Y.S.2d 794, 796 (App.
Div. 2d Dep’t 2005) (order of court stayed parties from moving for summary judgment
pending completion of disclosure after filing of note of issue).
87
Gonzalez, 711 N.Y.S.2d at 134. In Espejo v. Hiro Real Estate Co., 19 A.D.3d
360, 361, 796 N.Y.S.2d 162, 163 (App. Div. 2d Dep’t 2005), the court determined that,
although defendant established good cause for its failure to move for summary
judgment during the initial 120-day period following the filing of the note of issue, good
cause for a late motion was lacking because defendant offered no excuse for the ensuing
five-month delay between obtaining the necessary disclosure and moving for summary
judgment. Espejo relied on Gonzalez, in which the motion was made “shortly” after the
essential disclosure was complete. Id. See Perini Corp. v. City of N.Y., 789 N.Y.S.2d 29,
31 (App. Div. 1st Dep’t 2005). In light of Espejo and Perini it is clear that a dilatory
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atypical, but its facts established grounds for good cause in a
case involving the common problem of delayed disclosure. 88
In Kunz v. Gleeson, which also involved disclosure
obtained after the filing of the note of issue, the defendant
moved for summary judgment approximately two weeks after
the deadline set by the court. 89 The Second Department
determined that defendant established good cause for the
“slight delay” because the independent medical exams of the
plaintiff were not conducted until after the note of issue had
been filed. 90 This delayed disclosure, coupled with the fact that
the results of the exams provided the evidentiary basis for the
motion for summary judgment, established good cause to
entertain the late motion. 91 Similarly, in Cooper v. Hodge,
disclosure was not yet completed at the time of the filing of the
note of issue. 92 Rather than moving to vacate the note of issue,
defendant sought an extension of the 120-day period in CPLR
3212(a) until after disclosure was complete. 93 Defendant
labored under the belief that he had obtained the extension,
but the trial court ultimately rejected the motion as untimely. 94
The Fourth Department reversed, noting that the attorneys for
both sides believed the court had granted an extension of time
to move for summary judgment and concluding that defendant
established good cause to entertain the motion. 95
Despite this Appellate Division caselaw, parties
planning to move for summary judgment on the basis of
delayed disclosure after CPLR 3212(a)’s limitation period has
expired are asking for trouble on several fronts if they have not
attempted to vacate the note of issue. In Gonzalez, the
defendant promptly moved to vacate the note of issue and
identified the significance of the outstanding disclosure.
Although the trial court did not grant the requested relief, it
expressly permitted the outstanding disclosure to be completed,
movant must account for the entire period of delay (i.e., demonstrate good cause) when
making a belated summary judgment motion.
88
Cf. Orenstein v. Brum, __ A.D.3d __, 811 N.Y.S.2d 644, 2006 WL 722167
(App. Div. 1st Dep’t 2006) (finding good cause for delayed motion because defendants
could not know precisely what claims they would be moving against until the motion to
amend plaintiff’s complaint was decided).
89
9 A.D.3d 480, 481, 781 N.Y.S.2d 50, 51 (App. Div. 2d Dep’t 2004).
90
Id.
91
Id.
92
787 N.Y.S.2d 551, 552 (App. Div. 4th Dep’t 2004).
93
Id.
94
Id.
95
Id.
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thereby laying the groundwork for establishing good cause to
extend CPLR 3212(a)’s time frame. 96
Conversely, a party who fails to timely move to vacate
the note of issue faces substantial difficulties on at least two
fronts. If an adversary will not cooperate and provide
disclosure after the filing of the note of issue, the party may be
required to establish that “unusual or unanticipated
circumstances” have developed since the filing to secure a court
order requiring the disclosure. 97 Finally, and most significantly,
if the party seeks to move for summary judgment after
obtaining the materials through delayed disclosure, CPLR
3212(a)’s time periods will likely have expired, requiring a
showing of good cause. In this regard, Kunz 98 and other cases
have held that delayed disclosure can only constitute good
cause where the evidence forming the basis for the motion for
summary judgment was acquired after the filing of the note of
issue. 99
96
Cf. Certified Elec. Contracting Corp. v. City of New York, 18 A.D.3d 596,
597, 795 N.Y.S.2d 325, 326-27 (App. Div. 2d Dep’t 2005) (good cause existed for late
motion and cross-motion for summary judgment where court stayed all parties from
moving for summary judgment pending the completion of discovery, and note of issue
was conditioned upon completion of discovery); Quizhpi v. Lochinvar Corp., 12 A.D.3d
252, 252, 785 N.Y.S.2d 431, 431 (App. Div. 1st Dep’t 2004) (good cause existed for
allowing late motion for summary judgment “where the court acquiesced in, and had
actual knowledge of, ongoing discovery subsequent to the filing of the note of issue”);
Ramirez v. Wyeth Laboratories, Inc., 179 Misc. 2d 764, 768, 686 N.Y.S.2d 602, 605
(Sup. Ct. New York County 1999) (stating that “because the note of issue was filed
prematurely largely due to the directions of the court, it cannot be said that
[defendant] has failed to establish good cause for the late filing of the summary
judgment motion”).
97
N.Y. COMP. CODES R. & REGS. tit. 22, § 202.21(d) (2005). See, e.g., Gomez v.
N.Y. City Trans. Auth., 19 A.D.3d 366, 366, 795 N.Y.S.2d 909, 910 (App. Div. 2d Dep’t
2005); Candray v. Eicher, 19 A.D.3d 352, 352, 795 N.Y.S.2d 908, 908 (App. Div. 2d
Dep’t 2005); Esteva v. Catsimatidis, 4 A.D.3d 210, 210-11, 772 N.Y.S.2d 267, 268 (App.
Div. 1st Dep’t 2004); Karakostas v. Avis Rent A Car Systems, 306 A.D.2d 381, 382, 761
N.Y.S.2d 283, 283 (App. Div. 2d Dep’t 2003); Rodriguez v. Sau Wo Lau, 298 A.D.2d 376,
377, 751 N.Y.S.2d 231, 231 (App. Div. 2d Dep’t 2002); Rinker v. Oberoi, 288 A.D.2d 873,
874, 732 N.Y.S.2d 787, 788 (App. Div. 4th Dep’t 2001); Di Matteo v. Grey, 280 A.D.2d
929, 930, 721 N.Y.S.2d 182, 183 (App. Div. 4th Dep’t 2001); Francis v. Board of Educ. of
the City of Mount Vernon, 278 A.D.2d 449, 449, 717 N.Y.S.2d 660, 661 (App. Div. 2d
Dep’t 2000); Philpott v. Bernales, 196 Misc. 2d 117, 118, 762 N.Y.S.2d 771, 772 (App.
Div. 2d Dep’t 2003).
98
Kunz v. Gleeson, 781 N.Y.S.2d 50, 51 (App. Div. 2d Dep’t 2004).
99
Brown v. City of New York, 6 Misc. 3d 1017(A), No. 20673-2001, 2005 WL
263964, at *2 (N.Y. Sup. Ct. Bronx County Jan. 12, 2005); see Smith v. Nameth, 807
N.Y.S.2d 411, 412 (App. Div. 2d Dep’t 2006) (affidavit obtained from defendant bus
driver constituted “good cause” for delayed motion where it was not wholly duplicative
of his deposition testimony and was “necessary for motion”); LoGrasso v. Myer, 16
A.D.3d 1089, 1089, 790 N.Y.S.2d 919, 919 (App. Div. 4th Dep’t 2005); Gonzalez v. Zam
Apartment Corp., 782 N.Y.S.2d 922, 922 (App. Div. 2d Dep’t 2004); Caiola v. Allcity
Ins. Co., 277 A.D.2d 273, 273-74, 715 N.Y.S.2d 736, 737 (App. Div. 2d Dep’t 2000); see
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This required linkage between the disclosure obtained
after the filing of the note of issue and the grounds for the
summary judgment motion presents dilemmas for the dilatory
movant, which should be avoided at all costs. Even if the
movant believes the disclosure will strengthen the motion,
there is a significant chance that it will prove fruitless. If so,
the movant may now be unable to establish good cause to allow
for a late motion. Therefore, lawyers in these circumstances
may prefer to forego further disclosure, make a timely motion,
and simply rely on the proof already obtained. This also avoids
the risk of a court determining that the disclosure should have
been obtained earlier, foreclosing any finding of good cause. 100
2. Other Potential Excuses Constituting “Good Cause”
While issues related to outstanding disclosure have
dominated the attention of the courts in addressing good cause
under CPLR 3212(a), several other excuses for belated
summary judgment motions have also been considered.
CPLR 3116(a), governing the procedure for signing a
deposition, provides the deponent sixty days, running from
submission of the transcript to the deponent, in which to make
changes to the transcript. 101 Therefore, occasions will arise
where a movant cannot satisfy CPLR 3212(a)’s time frame
because she is required to wait for the return of a corrected,
signed deposition transcript that will provide the evidentiary
basis for the summary judgment motion. 102 The courts have
also Espejo v. Hiro Real Estate Co., 796 N.Y.S.2d, 162, 163 (App. Div. 2d Dep’t 2005)
(witness’s testimony was not essential to making motion); First Union Auto Fin., Inc. v.
Donat, 16 A.D.3d 372, 373-74, 791 N.Y.S.2d 596, 597 (App. Div. 2d Dep’t 2005);
Buckner v. City of New York, 800 N.Y.S.2d 333, 337 (Sup. Ct. New York County 2005).
100
See Czernicki v. Lawniczak, 25 A.D.3d 581, 582, 806 N.Y.S.2d 876, 877
(App. Div. 2d Dep’t 2006) (noting that no excuse was offered as to why it took plaintiff
more than two and one-half years to complete whatever disclosure remained after the
filing of the note of issue); Dettmann v. Page, 794 N.Y.S.2d 406, 406-07 (App. Div. 2d
Dep’t 2005); Espejo, 796 N.Y.S.2d at 163 (late movant, who had access to witness’s
testimony at any time, could not establish good cause for delay).
101
N.Y. C.P.L.R. 3116(a) (McKinney 2005). See Connors, Practice
Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3116:1 (2005)
(discussing caselaw precluding the use of unsigned transcripts in situations where
CPLR 3116(a)’s requirements have not been met). “If the witness fails to sign and
return the deposition within sixty days, it may be used as fully as though signed.” N.Y.
C.P.L.R. 3116(a) (McKinney 2005). See, e.g., Ireland v. Geico Corp., 2 A.D.3d 917, 918,
768 N.Y.S.2d 508, 510 (App. Div. 3d Dep’t 2003); Zabari v. City of New York, 242
A.D.2d 15, 17, 672 N.Y.S.2d 332, 333 (App. Div. 1st Dep’t 1998); Thomas v. Hampton
Express, Inc., 208 A.D.2d 824, 825, 617 N.Y.S.2d 831, 832 (App. Div. 2d Dep’t 1994).
102
This circumstance has been recognized as a valid basis for making a
motion on the eve of trial, even before the amendment of CPLR 3212(a). See Kule Res.,
Ltd. v. Reliance Group, Inc., 427 N.Y.S.2d 612, 613 (N.Y. 1980) (per curiam) (“When
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been sympathetic to movants in this situation, and have found
good cause to entertain belated summary judgment motions. 103
Attorneys facing trying personal situations may also
find refuge in the arms of CPLR 3212(a)’s good cause provision.
In Stimson v. E.M. Cahill Company, Inc., 104 both the movants’
attorney and the attorney’s secretary had family emergencies
occur on the last day on which to make the summary judgment
motion, which prevented them from coming to the office.
Resultantly, the motion, which had already been prepared, was
not served until two days later. 105 The movants sought leave to
serve a late motion based upon the circumstances which befell
counsel and her secretary. The Fourth Department reversed
the order of supreme court, which denied the movants’ motion
seeking leave to serve a summary judgment motion, and
granted the motion, concluding that the movants had
demonstrated “an adequate explanation . . . for the de minimis
delay . . . .” 106
the reason for delay is to complete depositions, which as the Appellate Division found
was essential to the making of the motion, denial of the motion as untimely is error.”
(citation omitted)). If the deposition transcript will not provide the evidentiary basis for
the motion for summary judgment, the movant will be unable to establish good cause.
See Kunz, 781 N.Y.S.2d at 51; supra notes 90-91 and accompanying text.
103
See Burnell v. Huneau, 1 A.D.3d 758, 760, 767 N.Y.S.2d 163, 164 (App.
Div. 3d Dep’t 2003); Fainberg v. Dalton Kent Sec. Group, Inc., 268 A.D.2d 247, 248, 701
N.Y.S.2d 41, 42 (App. Div. 1st Dep’t 2000). See also Gaffney v. BFP 300 Madison II,
LLC, 18 A.D.3d 403, 403, 795 N.Y.S.2d 579, 579 (App. Div. 1st Dep’t 2005). The party
moving for summary judgment should do so promptly after the expiration of the sixtyday period. Any significant delay beyond the expiration of the sixty-day period in CPLR
3116(a) will likely foreclose a party from establishing good cause under CPLR 3212(a).
Espejo, 796 N.Y.S.2d at 163 (court determined good cause under CPLR 3212(a) was
lacking because defendant did not move for summary judgment “shortly” after
obtaining necessary disclosure).
104
8 A.D.3d 1004, 1004, 778 N.Y.S.2d 585, 585 (App. Div. 4th Dep’t 2004).
105
Id. at 585. Service, not filing, marks the point at which a motion is made.
N.Y. C.P.L.R. 2211 (McKinney 2005). See Siegel, Practice Commentaries, McKinney’s
Cons. Laws of N.Y., Book 7B, CPLR C2211:4 (1991); SIEGEL, supra note 36, § 243;
supra notes 36-43 and accompanying text.
106
Stimson, 778 N.Y.S.2d at 585 (quoting Luciano v. Apple Maintenance &
Servs., Inc., 289 A.D.2d 90, 91, 734 N.Y.S.2d 153, 154 (App. Div. 1st Dep’t 2001)
(emphasis added)). See Centeno v. Metro. Transp. Auth. Long Island Bus, 193 Misc.2d
617, 619, 749 N.Y.S.2d 704, 706-07 (Sup. Ct. Nassau County 2002) (illness and
hospitalization of movant’s attorney’s mother constituted good cause for late summary
judgment motion); see also Newsday, Inc. v. Nelkenbaum, 8 Misc. 3d 1005(A), No.
303823-03, 2005 WL 1490263, at *1 (N.Y. Civ. Ct. Kings County June 23, 2005)
(“Defendant’s motion for summary judgment was timely filed [the Notice of Trial is
dated September 21, 2004, and the motion was made on January 4, 2005]. Defendant’s
counsel’s illness constitutes good cause for not having his motion heard on its original
return date, and because of the circumstances, this Court is considering the instant
motion, with all the same papers, nunc pro tunc.”).
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Another example of good cause is found in Trump
Village Section 3, Inc. v. New York Housing Finance Agency. 107
In Trump, the First Department excused a belated motion for
summary judgment, made on renewal, 108 which was premised
on a subsequent appellate determination in the case that could
not have been timely raised in the original moving papers. 109
Moreover, the appellate decision addressed a potentially
determinative issue in the case. Trump presents a compelling
example of good cause, but it is not one that a lawyer can rely
on in advance.
Can a movant’s efforts at attempting to secure a
discontinuance of the action excuse her delay in making a
timely summary judgment motion? Maybe, 110 maybe not. 111
Regardless of support in the caselaw for this excuse, the safest
practice would be to promptly make the motion, as it can be
withdrawn if efforts to obtain a discontinuance later prove
successful. 112 Similarly, litigation strategy should not constitute
good cause, as demonstrated by McNeill v. Menter. 113 In
McNeill, defendant moved for summary judgment more than
four months after the expiration of CPLR 3212(a)’s time
period. 114 Defendant argued that there was good cause for the
delay because she was waiting for the expiration of plaintiff’s
107
307 A.D.2d 891, 893-94, 764 N.Y.S.2d 17, 20 (App. Div. 1st Dep’t 2003),
leave to appeal denied, 1 N.Y.3d 504, 775 N.Y.S.2d 780, 807 N.E.2d 893 (2003); see also
Bullard v. St. Barnabas Hosp., __ A.D.3d __, 810 N.Y.S.2d 78 (App. Div. 1st Dep’t 2006)
(finding good cause to entertain late summary judgment motion where arguments of
issue preclusion and law of the case could not have been raised until after order
dismissing action against codefendants).
108
A motion for renewal, or for leave to renew, is the procedural device
whereby a party seeks to alter a prior order disposing of a motion by injecting
additional proof not submitted on the initial motion. N.Y. C.P.L.R. 2221(e) (McKinney
2005). See SIEGEL, supra note 36, § 254.
109
Trump, 764 N.Y.S.2d at 20-21. Trump also concluded that because the
motion addressed a “threshold, potentially determinative issue, its consideration in
advance of trial was in the interest of judicial economy.” Id. at 21 (citation omitted).
This ground can no longer establish good cause in light of the Court of Appeals’
subsequent holding in Brill. See supra notes 25-28 and accompanying text.
110
Lawrence v. Kuo, No. 26597-01, 2004 WL 2683632, at *1 (N.Y. Sup. Ct.
Queens County Aug. 16, 2004).
111
Bouilland v. Angulo, No. 114116-01, 2004 WL 2941569, at *2 (N.Y. Sup. Ct.
New York County Sept. 27, 2004).
112
Cf. SIEGEL, supra note 36, § 56 (where parties are engaged in pre-action
settlement talks, plaintiff should commence action as precautionary measure to avoid
running afoul of statute of limitations). The party could also seek leave to serve a late
motion for summary judgment in advance of the expiration of the time period in CPLR
3212(a). See supra note 76 and accompanying text.
113
797 N.Y.S.2d 230, 231 (App. Div. 4th Dep’t 2005).
114
Id. at 230-31.
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time to appeal from an order that had already granted
summary judgment to two other defendants. 115 This tactic,
better known under the rubric of letting sleeping dogs lie until
it is too late, did not support a late motion. 116
Even ignorance has formed the basis of a good cause
determination under CPLR 3212(a). In Koloski v. Metropolitan
Life Ins. Co., 117 the preliminary conference order required
summary judgment motions to be made within sixty days of the
filing of the note of issue. The movants’ attorney, who was
substituted as counsel after the preliminary conference, was
unaware of this requirement. 118 Operating under the
assumption that she had one hundred and twenty days from
the filing of the note of issue to make the motion, she made the
motion on the one hundred and twentieth day. 119 The court
concluded that this error was sufficient to constitute good cause
because the delay was “minimal.” 120 The holding in Koloski
should be contrasted with the rather harsh and somewhat
more prevalent approach in Greenfield v. Gluck, 121 where the
court determined that ignorance of CPLR 3212(a)’s deadline
was insufficient to establish good cause, despite the fact that
the movants were pro se litigants.
115
Id.
Id. at 231. The court noted that the motion of the other two defendants was
argued approximately one month after the expiration of CPLR 3212(a)’s time frame.
117
5 Misc.3d at 1028(A), 799 N.Y.S.2d 161, No. 600231-02, 2004 WL 2903626,
at *1 (N.Y. Sup. Ct. New York County Nov. 3, 2004).
118
Id.
119
Id. at *2.
120
Id. See Neuberger v. Barron, N.Y.L.J., Mar. 30, 2005 at 22 (Sup. Ct. New
York County) (current counsel’s unawareness of 60-day deadline for making of
summary judgment motions constituted “law office failure,” and, under the
circumstances, good cause for belated motion).
Similarly, “good cause” has been established in cases predating Brill where
the movant was never served with the note of issue. Cibener v. City of New York, 268
A.D.2d 334, 701 N.Y.S.2d 405 (App. Div. 1st Dep’t 2000). See also Brunetti v. City of
New York, 286 A.D.2d 253, 728 N.Y.S.2d 665 (App. Div. 1st Dep’t 2001) (holding that
plaintiff’s claimed violation of CPLR 3212(a) was not supported with satisfactory proof
of dates of filing and service of note of issue).
121
No. 2002-1092 K C, 2003 WL 1961333, at *1 (N.Y. App. Term. 2d & 11th
Jud. Dists. 2003); see Singh v. Deopaul, No. 46334-01, 2005 WL 1774139, at *2 (N.Y.
Sup. Ct. Kings County July 12, 2005) (law office failure, consisting of counsel’s
erroneous diary entry for the summary judgment deadline, insufficient excuse to
constitute good cause); Istrefovic v. Santos, No. 554-2002, 2004 WL 3245351, at *1-2
(N.Y. Civ. Ct. Bronx County Oct. 4, 2004) (after action was transferred to New York
City Civil Court pursuant to CPLR 325[d], attorney mistakenly moved for summary
judgment in supreme court; court found absence of good cause for late motion in New
York City Civil Court).
116
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3. “Good Cause” – CPLR 3212(a) vs. CPLR 2004
The ignorance excuse proffered by movants’ counsel and
accepted by the court in Koloski 122 resembles “law office
failure,” a ubiquitous phrase in New York caselaw discussing
time extensions. CPLR 2005, which directly addresses law
office failure, allows a court to excuse delay or default resulting
from law office failure when relief is sought to extend the time
to appear or plead, to compel acceptance of an untimely
pleading, 123 or to vacate a judgment or order on the ground of
excusable default. 124
Law office failure may also constitute “good cause”
under CPLR 2004, which allows a court to “extend the time
fixed by any statute, rule or order for doing any act, upon such
terms as may be just and upon good cause shown, whether the
application for extension is made before or after the expiration
of the time fixed.” 125 Although CPLR 3212(a) and CPLR 2004
both employ the phrase “good cause,” the caselaw interpreting
CPLR 2004 instructs courts to consider factors such as length
of delay, the reason given for the delay, any prejudice to
opposing parties caused by the delay, whether the moving
party was in default before seeking the extension, and whether
an affidavit of merit was proffered. 126 Therefore, in light of
Brill’s creed that the absence of prejudice and the merits of an
untimely motion for summary judgment are not part of the
equation in calculating good cause under CPLR 3212(a), 127
122
Koloski, 2004 WL 2903626 at *1-2; see Neuberger, N.Y.L.J., Mar. 30, 2005,
at 22.
123
N.Y. C.P.L.R. 3012(d) (McKinney 2005) (“Service of pleadings and demand
for complaint, Extension of time to appear or plead.”).
124
N.Y. C.P.L.R. 5015(a) (McKinney 2005) (“Relief from judgment or order, On
motion.”). See Alexander, Practice Commentaries, McKinney’s Cons. Laws of N.Y.,
Book 7B, CPLR C2005, at 703 (1992).
125
N.Y. C.P.L.R. 2004 (McKinney 2005); Tewari v. Tsoutsouras, 75 N.Y.2d 1,
12-13, 550 N.Y.S.2d 572, 577, 549 N.E.2d 1143, 1148 (1989); In re Estate of Burkich, 12
A.D.3d 755, 755, 785 N.Y.S.2d 137, 138 (App. Div. 3d Dep’t 2004); Brusco v. DavisKlages, 302 A.D.2d 674, 674-75, 754 N.Y.S.2d 725, 735 (App. Div. 3d Dep’t 2003);
Scritchfield v. Perry, 245 A.D.2d 1054, 1054, 667 N.Y.S.2d 584, 585 (App. Div. 4th
Dep’t 1997). CPLR 2004, one of the most commonly cited provisions in civil practice, is
employed to extend the time fixed to perform a myriad of acts, including, among other
things, the making of a motion pursuant to CPLR 4404 to set aside a verdict. See, e.g.,
Johnson v. Suffolk County Police Dep’t, 245 A.D.2d 340, 341, 665 N.Y.S.2d 440, 440-41
(App. Div. 2d Dep’t 1997); Alexander, Practice Commentaries, McKinney’s Cons. Laws
of N.Y., Book 7B, CPLR C2004, at 692 (1997).
126
See, e.g., Tewari, 550 N.Y.S.2d at 577; In re Estate of Burkich, 785
N.Y.S.2d at 138; Saha v. Record, 762 N.Y.S.2d 693, 695-96 (App. Div. 3d Dep’t 2003).
See also Grant v. City of New York, 793 N.Y.S.2d 35 (App. Div. 1st Dep’t 2005).
127
Brill v. City of New York, 781 N.Y.S.2d 261 (N.Y. 2004).
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lawyers must be cautious when applying decisions interpreting
good cause under CPLR 2004 and other provisions to
timeliness issues arising under CPLR 3212(a). The elements
for establishing good cause under CPLR 2004 are distinct from
the factors considered in determining good cause under CPLR
3212(a). In any event, the courts have expressed reluctance to
accept perfunctory claims of law office failure as good cause
under CPLR 3212(a). 128
VI.
EXTENSION OF TIME PERIODS ESTABLISHED BY COURT
RULE OR ORDER
All three of the cases decided by the Court of Appeals
concerning CPLR 3212(a)’s deadlines have involved the 120day period for making summary judgment motions. 129 Courts
are now struggling with the related issue of whether Brill’s
constraints also apply when they have set their own deadlines
for moving for summary judgment.
In a somewhat anomalous decision, one court has held
that court imposed deadlines can be extended absent good
128
See Breiding v. Giladi, 15 A.D.3d 435, 435, 789 N.Y.S.2d 449, 449-50 (App.
Div. 2d Dep’t 2005) (“defendants’ perfunctory claims of unspecified clerical
inadvertence and reassignment of counsel were insufficient to constitute good cause for
the delay” in making their summary judgment motion); DiFusco v. Wal-Mart Discount
Cities, 255 A.D.2d 937, 937, 680 N.Y.S.2d 377, 378 (App. Div. 4th Dep’t 1998) (movant’s
attorney’s excuse that he was too busy to make timely motion was inadequate);
Barracks v. Metro North Commuter R.R., No. 122591-2, 2005 WL 1919100, at *1 (N.Y.
Sup. Ct. New York County Mar. 18, 2005) (movant’s attorney’s excuse that case became
“unwieldy” due to the number of defendants involved and that record was voluminous
was insufficient to demonstrate good cause); Gutierrez v. State of New York, No.
107946, (Ct. Cl. Sept. 22, 2004), available at http://court.acmenet.net/lpBin21/lpext.dll/
Claims_2004/b8a9 (last visited Feb. 3, 2006) (claimant’s perfunctory excuse for failure
to move for summary judgment within time frame ordered by court does not establish
good cause); cf. Hosp. for Joint Diseases v. Elrac, Inc., 11 A.D.3d 432, 433, 783 N.Y.S.2d
612, 614 (App. Div. 2d Dep’t 2004) (defendant’s motion to vacate default judgment
entered against it granted where plaintiff, among other things, established reasonable
excuse for the default; defendant submitted the affirmation of counsel which provided
detailed explanation of the affirming counsel’s oversights that led to the default);
Goldman v. Cotter, 10 A.D.3d 289, 291, 781 N.Y.S.2d 28, 31 (App. Div. 1st Dep’t 2004)
(plaintiff’s motion to vacate order entered on default granted where plaintiff, among
other things, established reasonable excuse for default; affidavit of plaintiff’s counsel
specified occurrences of law office failure that led to default); Leader v. Maroney,
Ponzini & Spencer, 276 A.D.2d 194, 195, 718 N.Y.S.2d 374, 378 (App. Div. 2d Dep’t
2000), aff’d 97 N.Y.2d 95, 761 N.E.2d 1018, 736 N.Y.S.2d 291 (2001) (plaintiff’s
counsel’s error in concluding that original version of CPLR 306-b applied to action did
not constitute “good cause” to extend time for service under CPLR 306-b). But see
Neuberger v. Barron, N.Y.L.J., Mar. 30, 2005, at 22; Koloski v. Metro. Life Ins. Co., No.
600231-02, at *2, 2004 WL 2903626 (N.Y. Sup. Ct. New York County Nov. 3, 2004).
129
Brill v. City of New York, 781 N.Y.S.2d 261, 263-64 (N.Y. 2004); Miceli v.
State Farm Mut. Auto. Ins., 786 N.Y.S.2d 379, 380 (N.Y. 2004); Gonzalez v. 98 Mag
Leasing Corp., 711 N.Y.S.2d 131, 132-34 (N.Y. 2000).
2006]
CPLR 3212(a)’S TIMING REQUIREMENT
1559
cause. In Hernandez v. 620 West 189th Ltd. Partnership, the
local uniform rules imposed a 60-day deadline for making
summary judgment motions pursuant to the authority vested
in CPLR 3212(a). 130 The court in Hernandez concluded that it
had discretion to extend its own court-imposed deadline, even
in the absence of good cause. 131 The legislative policy
supporting the enactment of the 120-day maximum in CPLR
3212(a) is, the court reasoned, not applicable with respect to
court-imposed deadlines for making summary judgment
motions. 132 Thus, Hernandez held that courts have the
discretion to disregard a self-imposed deadline for making a
summary judgment motion to “accommodate a genuine
need,” 133 and could extend their own deadlines in the absence of
good cause so long as they do not exceed the 120-day ceiling. 134
Where, as in Hernandez, the court has imposed its own
deadline for moving for summary judgment, CPLR 3212(a)’s
language is somewhat awkward. A literal reading of the
statute indicates that the ability to extend the time for making
a summary judgment motion for good cause only pertains to
the 120-day period imposed in the absence of a court rule. The
sentence authorizing the court to set its own deadline for
making summary judgment motions does not contain a clause
authorizing the extension of such a period. 135
This problem appears to be a drafting oversight. The
legislative history supporting the 1997 amendment to CPLR
3212(a) refers to both a court-imposed deadline and the 120day period, concluding that “[e]ither date could be extended by
130
Hernandez v. 620 W. 189th Ltd. P’ship, 792 N.Y.S.2d 822, 823 (Sup. Ct.
New York County 2005). See N.Y. COUNTY SUPREME COURT CIVIL BRANCH, R. 17,
available at http://www.courts.state.ny.us/supctmanh/uniform_rules.htm (last visited
Jan. 25, 2006).
131
Hernandez, 792 N.Y.S.2d at 823. But see Bouilland v. Angulo, No. 11411601, 2004 WL 2941569, at *1-2 (N.Y. Sup. Ct. New York County Sept. 27, 2004)
(applying Brill’s good cause constraint to 60-day deadline set by court).
132
Hernandez, 792 N.Y.S.2d at 824.
133
Id.
134
Id. Ultimately, the court refused to exercise its discretion to extend the
sixty day limitation. Id. See also Keskeny v. 409 E. 87, LLC, 10 Misc. 3d 1057(A), No.
116755-03, 2005 WL 3369351 (Sup. Ct. New York County 2005) (rejecting strict
interpretation of sixty day court rule).
135
N.Y. C.P.L.R. 3212(a) (McKinney 2005). The sentence authorizing a court
to set its own time frame for making summary judgment motions requires that the
parties be allowed at least thirty days from the filing of the note of issue for the making
of the motion, but no maximum. Id. Apparently a court could, if it so desired, set a date
outside 120 days from the filing of the note of issue. Id.
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the court upon a showing of good cause.” 136 Additionally, as
noted above, courts have the express authority under CPLR
2004 to extend the time fixed by any court rule or order. 137 This
authority can be exercised before or after the time period has
expired, “upon such terms as may be just and upon good cause
shown.” 138 Although the statutory history of CPLR 3212(a) and
CPLR 2004 support Hernandez’s conclusion that a court can
extend its own deadline for making summary judgment
motions, this authority does not allow for extensions absent
good cause, as Hernandez held. 139
Hernandez’s holding is also difficult to reconcile with
language in several Court of Appeals cases emphasizing the
importance placed on adhering to court-imposed deadlines. As
136
Memorandum in Support of Amendment from Chief Administrative Judge
Jonathan Lippman 1 (June 25, 1996) (on file with author); REPORT OF THE ADVISORY
COMMITTEE ON CIVIL PRACTICE, supra note 13.
137
See supra notes 125-26 and accompanying text.
138
N.Y. C.P.L.R. 2004 (McKinney 2005). See, e.g., Tewari v. Tsoutsouras, 550
N.Y.S.2d 572, 576-77, (N.Y. 1989) (CPLR 2004 extension may be granted only upon
showing of “good cause”); Zamir v. Hilton Hotels Corp., 304 A.D.2d 493, 494, 758
N.Y.S.2d 645, 646-47 (App. Div. 1st Dep’t 2003) (court erred in denying defendants’
cross-motions to strike “corrections” to plaintiff’s deposition transcript as untimely;
plaintiff failed to establish “good cause” to extend time to return deposition); Aretakis
v. Tarantino, 300 A.D.2d 160, 160, 751 N.Y.S.2d 481, 482 (App. Div. 1st Dep’t 2002) (no
extension of time to move for dismissal of complaint pursuant to CPLR 3211(e) absent
showing of “good cause”); Horn v. Boyle, 260 A.D.2d 76, 78, 699 N.Y.S.2d 572, 575 (App.
Div. 3d Dep’t 1999) (highlighting necessity that “good cause” support application to
extend time limit); Conch Assocs. Inc. v. Mercury, Inc., 245 A.D.2d 538, 539, 666
N.Y.S.2d 499, 500 (App. Div. 2d Dep’t 1997) (defendant not entitled to extension of time
to post bond given its failure to demonstrate “good cause”); Coutrier v. Haraden
Motorcar Corp., 237 A.D.2d 774, 777, 655 N.Y.S.2d 660, 663-64 (App. Div. 3d Dep’t
1997) (plaintiff’s belated CPLR 4404 motion properly denied absent “good cause”);
Casey v. Slattery, 213 A.D.2d 890, 841, 623 N.Y.S.2d 942, 943 (App. Div. 3d Dep’t 1995)
(same); De Cuyper v. Gonzales, 214 A.D.2d 764, 765, 624 N.Y.S.2d 653, 654 (App. Div.
3d Dep’t 1995) (plaintiffs’ request for extension of time to answer defendants’ summary
judgment motion properly denied given plaintiffs’ “failure to allege a sufficient basis for
the extension”); Thermo Spas Inc. v. Red Ball Spas & Baths Inc., 199 A.D.2d 605, 606,
604 N.Y.S.2d 337, 338 (App. Div. 3d Dep’t 1993) (trial court did not err in failing to
consider defendants’ tardy papers in opposition to plaintiff’s motion pursuant to CPLR
3126 to strike defendants’ answer given defendants’ failure to offer “valid excuse for
[their] delay”); Tesciuba v. Cataldo, 189 A.D.2d 655, 655, 592 N.Y.S.2d 326, 326 (App.
Div. 1st Dep’t 1993) (trial court did not abuse its discretion in denying plaintiff
additional time within which to make a post-trial motion for a new trial pursuant to
CPLR 4404, there being no explanation from plaintiff showing “good cause” for his
lengthy delay of more than two years in seeking such an extension); Alexander,
Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR 2004, at 692
(1991); see also, McCoy v. Feinman, 99 N.Y.2d 295, 300, 785 N.E.2d 714, 718, 755
N.Y.S.2d 693, 696-97 (2002) (noting that courts have discretion to waive certain time
limits under CPLR 2004 for good cause); Grandinetti v. Metro. Transp. Auth., 74
N.Y.2d 785, 787, 543 N.E.2d 737, 738, 545 N.Y.S.2d 94, 95 (1989) (same).
139
Hernandez v. 620 W. 189th Ltd. P’ship, 792 N.Y.S.2d 822, 824 (Sup. Ct
New York County 2005).
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1561
the Court stated in Kihl v. Pfeffer, “[i]f the credibility of court
orders and the integrity of our judicial system are to be
maintained, a litigant cannot ignore court orders with
impunity.” 140 Although Brill and Miceli involved violations of
the legislatively imposed 120-day rule, the Court equated them
with violations of “court-ordered time frames.” 141 The Court has
also cautioned that both legislative and judicial deadlines “are
not options, [but] are requirements, to be taken seriously by
the parties.” 142 In light of these statements, it is difficult to
justify the different standard outlined in Hernandez for
extending court-imposed deadlines for making motions for
summary judgment. The Court of Appeals is likely to impose
the same good cause standard enunciated in Brill and Miceli on
parties moving for summary judgment after a court-imposed
deadline has expired. 143
Several Second Department decisions have implicitly
rejected Hernandez’s holding and concluded that good cause
must support a motion made after the expiration of a court’s
deadline for making motions for summary judgment. In Milano
v. George, the supreme court set a 90-day deadline for moving
for summary judgment, running from the filing of the note of
issue. 144 A defendant’s motion for summary judgment, made on
the ninety-first day, was deemed untimely because of the
failure to establish good cause for the delay. 145 In First Union
Auto Finance, Inc. v. Donat, plaintiff’s motion and defendant’s
cross-motion failed to comply with Rule 13 of the Uniform Civil
Trial Rules of the Supreme Court, Kings County, which
140
94 N.Y.2d 118, 123 722 N.E.2d 55, 58, 700 N.Y.S.2d 87, 90 (1999). See
Andrea v. Arnone, Hedlin, Casker, Kennedy and Drake, Architects and Landscape
Architects, P.C., 5 N.Y.3d 514, 521, 806 N.Y.S.2d 453, 457, 840 N.E.2d 565, 569 (2005)
(stressing importance of adherence to court deadlines).
141
Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 726, 726, 819 N.E.2d
995, 996, 786 N.Y.S.2d 379, 380 (2004).
142
Id.
143
See generally 158 Siegel’s Practice Review, More on Time to Move for
Summary Judgment: Court Can Allow Motion Made After Court-Set Time Expires, as
Long as Motion is Made Within the Statutory 120 Days, at 1 (Feb. 2005).
Without predicting how the Court of Appeals would go on this point –
predictions here are perilous in view of what appears to be shaping up as a
Court of Appeals crusade against dilatory conduct in litigation – the
Hernandez case seems a fair compromise. It’s pretty clear that it doesn’t
offend the statute, but it’s an open question whether it would offend the
Court of Appeals.
Id.
144
145
792 N.Y.S.2d 906, 907 (App. Div. 2d Dep’t 2005).
Id.
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requires summary judgment motions to be made within sixty
days of the filing of the note of issue. 146 The Second Department
held that the supreme court erred in considering the merits of
the motions because “no good cause for the delay was shown.” 147
Additionally, a Supreme Court Justice sitting in New York
County, the same court that decided Hernandez, has expressly
declined to follow the “rule” enunciated in Hernandez. 148
VII.
THE AFTERMATH OF BRILL
In Brill, the Court of Appeals also gave direction to
lower courts regarding the disposition of a case in which a
meritorious motion for summary judgment could not satisfy the
timeliness requirements in CPLR 3212(a). 149 The Court
reversed the order granting summary judgment in Brill and
returned the case to the trial calendar. 150 The Court observed
that the defendant, now deprived of the remedy of summary
judgment, could make a motion to dismiss after plaintiff rests,
or make a request for a directed verdict during the trial. 151
146
791 N.Y.S.2d 596, 597 (App. Div. 2d Dep’t 2005). See also Bevilacqua v.
City of New York, 21 A.D.3d 340, 798 N.Y.S.2d 909 (App. Div. 2d Dep’t 2005).
147
First Union, 791 N.Y.S.2d at 597. Prior to the holdings in Milano and First
Union, a trial court in Kings County concluded that Brill did not apply where the
motion was made within 120 days from the filing of the note of issue, but after the
expiration of Rule 13’s sixty-day period. See Florczyc v. Stahal, No. 25129-99, 2005 WL
119739, at *2 (N.Y. Sup. Ct. Kings County Jan. 3, 2005). In Florczyc, the court
expressly declined to determine whether the movant had established good cause. Id.
Milano and First Union appear to reject Florczyc’s rationale. See Kunz v. Gleeson, 781
N.Y.S.2d 50, 51 (App. Div. 2d Dep’t 2004) (implicitly recognizing applicability of Brill,
court holds that merits of motion made approximately two weeks beyond date set by
court order were properly considered upon showing of good cause). Additionally, a
Supreme Court Justice sitting in New York County, which has an identical local rule
requiring all summary judgment motions to be made within sixty days of the filing of
the note of issue, has expressly declined to follow Florczyc. See Buckner v. City of New
York, 800 N.Y.S.2d 333, 337 (Sup. Ct. New York County 2005).
148
Buckner, 800 N.Y.S.2d at 337. See Clermont-Lundy ex rel. Lundy v.
Zimbalist, 10 Misc. 3d 1056(A), No. 4950-03, 2005 WL 3309753, at *7 (N.Y. Sup. Ct.
Kings County Oct. 5, 2005) (holding that Brill’s “good cause” requirement “applies
whether the moving party is untimely pursuant to either a statutory time frame or one
that has been ordered by the court”).
149
Brill v. City of New York, 781 N.Y.S.2d 261 (N.Y. 2004). The Court was
apparently prompted by Professor David Siegel, who observed, “we’d think better of
judicial decisions that absolutely refuse to extend the time for meritorious summary
judgment motions if they would tell us what is to happen in the case.” 79 Siegel’s
Practice Review, Time Limit on Summary Judgment, at 2 (Jan. 1999). See 51 Siegel’s
Practice Review, Strict Time Limit Placed on Motion for Summary Judgment, at 1
(Nov. 1996); SIEGEL, supra note 36, § 279.
150
Brill, 781 N.Y.S.2d at 265.
151
Id. CPLR 4401 permits any party to move for judgment “after the close of
the evidence presented by an opposing party with respect to [a] cause of action or issue,
2006]
CPLR 3212(a)’S TIMING REQUIREMENT
1563
The dissent in Brill criticized this result, noting that
“the time of the litigants, jurors, lawyers, the judge, and other
court personnel should not be wasted in going through the
motions of a trial which has no merit and must be
dismissed. . . .” 152 The dissent surmised that the trial ordered
by the majority will provide “futile hope to the litigants” and
that the case will ultimately be dismissed “[o]nce the parties
make an opening statement or plaintiffs put in their case
indicating that the appropriate notice was not given.” 153 The
majority in Brill answered the dissent’s concerns with the
following observation:
Hopefully, as a result of the courts’ refusal to countenance the
statutory violation, there will be fewer, if any, such situations in the
future, both because it is now clear that “good cause” means good
cause for the delay, and because movants will develop a habit of
compliance with the statutory deadlines for summary judgment
motions rather than delay until trial looms. 154
Despite the majority’s hope in Brill, and, given the
adventuresome nature of a healthy segment of the bar, it
appears that the problem of late summary judgment motions
will persist in the foreseeable future. Brill continues to be cited
in reported trial court and appellate decisions on a frequent
basis. 155 One can also safely assume that there is an equal
or at any time on the basis of admissions.” N.Y. C.P.L.R. 4401 (McKinney 2005). This
issue is explored infra notes 200-04 and accompanying text.
152
Brill, 781 N.Y.S.2d at 266 (G.B. Smith, J., dissenting).
153
Id. Although the dissent appears to contemplate that a motion for a
directed verdict could be made immediately after opening statements, this is not likely.
CPLR 4401 generally permits the motion for a directed verdict only “after the close of
the evidence presented by an opposing party with respect to [the] cause of action or
issue” moved upon. N.Y. C.P.L.R. 4401 (McKinney 2005). This issue is explored infra
notes 201-203 and accompanying text.
154
Brill, 781 N.Y.S.2d at 265. In response to the dissent’s suggestion that
monetary sanctions and preclusion may offer effective remedies against a tardy
movant, the majority noted that “[p]reclusion on the merits may, as a rule for the
future, be wholly disproportionate to the violation. Without considering whether we
may impose sanctions against a municipality for violating a statute, six of us conclude
that denying summary judgment—simply not considering the merits of an unexcused,
untimely motion—is not only the correct remedy under the law but also will most
effectively bring an undesirable practice to an end.” Id. at 265 n.4.
155
See supra note 22 and accompanying text. A substantial number of the
reported decisions from the appellate courts involve cases that were decided by a trial
level court before Brill was handed down. Many of these decisions warranted reversal
because they were based on the law prior to Brill, which allowed the merits of the
motion to be considered in analyzing good cause under CPLR 3212(a). See, e.g.,
Dettmann v. Page, 794 N.Y.S.2d 406, 406-07 (App. Div. 2d Dep’t 2005); Hayes v. New
York City Trans. Auth., 16 A.D.3d 551, 551, 790 N.Y.S.2d 886, 887 (App. Div. 2d Dep’t
2005); First Union Auto Finance, Inc. v. Donat, 791 N.Y.S.2d 596, 597 (App. Div. 2d
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number of unreported instances in which courts are confronted
with a timeliness problem under CPLR 3212(a).
As of this writing, there is not yet a reported decision
addressing how a case was handled after it was sent back for
trial pursuant to Brill’s command. Although the majority in
Brill provided some direction to courts and litigants as to how a
case should proceed after it is determined that a summary
judgment motion is untimely, many unresolved questions
remain.
This section of the article will identify several problems
that judges and lawyers will confront in cases in which a
summary judgment motion is denied as untimely. We’ll address
the issues from two separate perspectives: (A) “What Does the
Plaintiff Do Now?,” and (B) “What Does the Defendant Do
Now?”
A.
What Does the Plaintiff Do Now?
In Brill, the Kings County Supreme Court and the
Appellate Division, Second Department reached the merits of
defendant’s summary judgment motion. 156 Both of these courts
determined that the City of New York established its prima
facie entitlement to judgment as a matter of law by
demonstrating it did not receive written notice of the defect in
the sidewalk at the location where plaintiff fell. 157 Plaintiffs
produced a “Big Apple” map to establish prior written notice,
but it only contained descriptions of defects in the sidewalk
adjacent to the area of the accident and did not provide notice
of the defect where plaintiff fell. 158 Therefore, both lower courts
dismissed plaintiff’s lawsuit based on the prior written notice
requirement in section 7-201 of the Administrative Code of the
City of New York. 159 In ruling that these courts should not have
Dep’t 2005); Breiding v. Guladi, 789 N.Y.S.2d 449, 449-50 (App. Div. 2d Dep’t 2005).
Many cases decided after Brill continue to pose timeliness issues, however.
156
Brill v. City of New York, 781 N.Y.S.2d 261, 263 (N.Y. 2004) (noting that
the Kings County Supreme Court “decide[d] the summary judgment motion on the
merits”); Brill v. City of New York, 305 A.D.2d 525, 526, 759 N.Y.S.2d 346, 346 (App.
Div. 2d Dep’t 2003).
157
Brill, 759 N.Y.S.2d at 346; Brill, 781 N.Y.S. 2d at 263. The Appellate
Division also concluded that the City demonstrated it did not create the allegedly
defective condition. Brill, 759 N.Y.S.2d at 346.
158
Id.
159
Section 7-201(c)(2) of the Administrative Code of the City of New York
states that no civil action shall be maintained against the City of New York for
personal injuries sustained as a result of a sidewalk defect unless it appears that
written notice of the defective condition was actually given to the New York City
Commissioner of Transportation or any person or department authorized by the
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1565
considered the merits of defendant’s motion because of a failure
to establish compliance with the timeliness provision in CPLR
3212(a), the Court of Appeals expressly stated it was not
“consider[ing] the merits of the City’s motion.” 160 Despite the
Court’s deference, there is certainly a dark cloud hanging over
the merits of plaintiffs’ claims. This poses several problems for
the plaintiffs in moving forward with the case, which this
article will explore below.
1. Search for Additional Proof
In the countless number of personal injury cases similar
to Brill in which prior written notice of a defect is required, an
untimely summary judgment motion may place plaintiff on
notice of a specific defect in the proof necessary to establish all
of the elements of the claim. Brill’s direction that these cases
proceed to trial provides the plaintiff with additional time to
gather the proof necessary to satisfy all elements of the claim.
Although the period in which to obtain disclosure on notice
through CPLR Article 31’s machinery expires with the filing of
the note of issue, 161 the plaintiff facing a dilemma similar to the
one met in Brill could attempt to seek disclosure through a
court order or informally gather information without using the
disclosure devices. 162 Similarly, in cases where a belated
Commissioner to receive notice. N.Y. ADMIN. CODE § 7-201(c)(2) (McKinney 2005).
Similar provisions in several statutes and municipal codes also require written notice
of a defect to maintain a suit. See, e.g., N.Y. GEN. MUN. §§ 50-g, 71-b (McKinney 2005);
N.Y. HIGH. § 139 (McKinney 2005); N.Y. TOWN § 65-a (McKinney 2005); N.Y. VILLAGE
§ 6-628 (McKinney 2005). See also, 1B NEW YORK PATTERN JURY INSTRUCTIONS – CIVIL
§ 2:225(I) (3d ed. 2005) (“Duty and Notice”). Where a prior written notice requirement
is applicable, the plaintiff must plead and prove compliance with the requirement as a
condition precedent to suit. Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d
593, 661 N.E.2d 1374 (1995); Vargas v. City of New York, 4 A.D.3d 524, 772 N.Y.S.2d
381 (App. Div. 2d Dep’t 2004); Farnsworth v. Village of Potsdam, 228 A.D.2d 79, 651
N.Y.S.2d 748 (App. Div. 3d Dep’t 1997).
The prior written notice requirement is separate and distinct from the
obligation to serve a notice of claim on the municipal entity within ninety days after
the claim arises. N.Y. GEN. MUN. § 50-e(1)(a) (McKinney 2005). A court may extend the
time to serve a notice of claim, upon motion. Id. § 50-e(5). For a discussion of the
pitfalls encountered by lawyers commencing actions against municipal entities, see
Harris v. Niagara Falls Bd. Of Educ., 6 N.Y.3d 155, 844 N.E.2d 753, 811 N.Y.S.2d 299
(2006) (plaintiff failed to properly commence action against municipal entity when he
used same index number from prior special proceeding, which granted order to serve a
late notice of claim); see also Connors and Gleason, Problems at the Starting Gate,
N.Y.L.J., Jan. 12, 2006, at 3.
160
Brill, 781 N.Y.S.2d at 263 n.2.
161
See Connors, Practice Commentaries, McKinney’s Cons. Laws of N.Y.,
Book 7B, CPLR C3102:3, at 493-94 (2005); supra notes 83-84 and accompanying text.
162
See Niesig v. Team I, 76 N.Y.2d 363, 372, 558 N.E.2d 1030, 1034, 559
N.Y.S.2d 493, 497 (1990) (recognizing value of “avenues of informal discovery of
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summary judgment motion exposes a lack of medical proof to
establish a “serious injury” 163 or “grave injury,” 164 the plaintiff
or third-party plaintiff will have additional time to obtain it for
trial. 165
2. The Prospect of Sanctions
If Ona Brill and her counsel search for proof that the
City of New York had prior written notice of the defect, but
cannot uncover it, the possibility of sanctions looms. CPLR
8303-a and Part 130 of the Rules of the Chief Administrator of
the Courts are both relevant in this context.
CPLR 8303-a has limited application, 166 but would
govern in Brill and the many other personal injury cases in
which timeliness issues under CPLR 3212(a) have arisen.
CPLR 8303-a(a) applies in cases seeking damages for personal
injury, 167 property damage 168 or wrongful death. 169 It provides
that if “such an action or claim is commenced or continued by a
plaintiff . . . and is found, at any time during the proceedings or
information that may serve both the litigants and the entire justice system by
uncovering relevant facts”); see also Federal Freedom of Information Act, 5 U.S.C.
§ 552 et seq. (2000) (providing for public access to governmental records of the federal
government and its administrative agencies); Freedom of Information Law, N.Y. PUB.
OFF., art. 6 (McKinney 2005) (statutory scheme providing for public access to
governmental records of State of New York and localities, and their administrative
agencies); M. Farbman & Sons, Inc. v. New York City Health and Hosps. Corp., 62
N.Y.2d 75, 78, 464 N.E.2d 437, 438, 476 N.Y.S.2d 69, 70 (1984) (party to litigation may
pursue governmental records of adverse party through CPLR Article 31 disclosure
devices or FOIL methods).
163
N.Y. INS. § 5102(d) (McKinney 2005) (defining several categories of “serious
injury”).
164
N.Y. WORKERS’ COMP. § 11 (McKinney 2005) (requiring third-party
plaintiff to plead and prove “grave injury” in common-law indemnification or
contribution action against plaintiff’s employer).
165
If the additional proof requires the plaintiff to call an expert witness at
trial, the plaintiff will also have to satisfy the disclosure requirements in CPLR
3101(d)(1)(i). The courts have been inconsistent, and rather lax, in imposing these
obligations, especially with respect to the timing of the disclosure. See Connors,
Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, C3101:29A, at 59-79
(2005).
166
See SIEGEL, supra note 36, § 414A; Alexander, Practice Commentaries,
McKinney’s Cons. Laws of N.Y., Book 7B, C8303-a, 77-78 (Supp. 2005).
167
See N.Y. GEN. CONSTR. § 37-a (McKinney 2005) (“‘Personal injury’ includes
libel, slander and malicious prosecution; also an assault, battery, false imprisonment,
or other actionable injury to the person either of the plaintiff, or of another.”).
168
See N.Y. GEN. CONSTR. § 25-b (McKinney 2005) (“‘Injury to property’ is an
actionable act, whereby the estate of another is lessened, other than a personal injury,
or the breach of a contract.”).
169
CPLR 8303-a(a) also applies to “an action brought by the individual who
committed a crime against the victim of the crime.” See N.Y. EST. POWERS & TRUSTS
§ 5-4.1 (McKinney 2005) (“Action by personal representative for wrongful act, neglect
or default causing death of decedent”).
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upon judgment, to be frivolous by the court, the court shall
award to the successful party costs and reasonable attorney’s
fees.” 170 Accordingly, CPLR 8303-a authorizes a court to award
costs and reasonable attorney’s fees against a party who has
commenced or continued to prosecute a frivolous personal
injury, injury to property, or wrongful death action.
In contrast to CPLR 8303-a, Part 130 is not limited to
any particular category of action and applies in virtually all
civil litigation in New York State. 171 It authorizes a court to
award “costs in the form of reimbursement for actual expenses”
and sanctions against a party who has engaged in frivolous
conduct. 172 Conduct is defined as frivolous if, among other
things, it is “completely without merit in law” 173 or it “asserts
material factual statements that are false.” 174 In determining
whether conduct is frivolous, the court must consider, among
other things, “whether or not the conduct was continued when
its lack of legal or factual basis was apparent, should have been
apparent, or was brought to the attention of counsel or the
party.” 175 A court has far broader power under Part 130 than
170
Id. CPLR 8303-a(a) additionally applies to a frivolous counterclaim,
defense or cross claim. The costs and attorney’s fees imposed under CPLR 8303-a are
capped at $10,000. Id. See Marcus v. Bressler, 277 A.D.2d 108, 109, 716 N.Y.S.2d 395,
396 (App. Div. 1st Dep’t 2000) ($10,000 maximum sanction applicable to each frivolous
cause of action); Entm’t Partners Group, Inc. v. Davis, 155 Misc. 2d 894, 901, 590
N.Y.S.2d 979, 984 (Sup. Ct. New York County 1992), aff’d 198 A.D.2d 63, 64, 603
N.Y.S.2d 439, 440 (App. Div. 1st Dep’t 1993) ($10,000 maximum sanction does not
apply to whole case, but to each prevailing party and each individual claim).
171
Part 130 does not apply in certain lower courts. N.Y. COMP. CODES R. &
REGS. tit. 22, § 130-1.1(a) (2005). In addition, Part 130 does not apply to requests for
costs or attorneys’ fees subject to CPLR 8303-a.
172
N.Y. COMP. CODES R. & REGS. tit. 22, § 130-1.1(a) (2005). Costs are paid to
the opposing party or her attorney. Sanctions are paid to the State. Id. See N.Y. COMP.
CODES R. & REGS. tit. 22, § 130-1.3 (2005). See also SIEGEL, supra note 36, § 414A; 133
Siegel’s Practice Review, Both Kinds of Sanctions Applied: Frivolous Claim and
Frivolous Conduct Bring Both Compensatory and Punitive Sanctions, at 2-3 (Mar.
2003). The maximum sanction permissible for a single occurrence of frivolous conduct
is $10,000, while costs and reasonable attorney’s fees are not capped. N.Y. COMP.
CODES R. & REGS. tit. 22, § 130-1.2 (2005).
173
N.Y. COMP. CODES R. & REGS. tit. 22, § 130-1.1(c)(1) (2005).
174
N.Y. COMP. CODES R. & REGS. tit. 22, § 130-1.1(c)(3) (2005).
175
N.Y. COMP. CODES R. & REGS. tit. 22, § 130-1.1(c) (2005). “An award of
costs or the imposition of sanctions may be made either upon [a] motion in compliance
with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable
opportunity to be heard” has been accorded the offending party. N.Y. COMP. CODES R. &
REGS. tit. 22, § 130-1.1(d) (2005). In making an award of costs and/or imposing
sanctions pursuant to section 130-1, the court must issue a written decision setting
forth the conduct on which the award and/or imposition is based, the reasons why the
court found the conduct to be frivolous, and the reasons why the court found the
amount awarded and/or imposed to be appropriate. N.Y. COMP. CODES R. & REGS. tit.
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under its statutory sibling, CPLR 8303-a. While a court may
only impose a penalty pursuant to CPLR 8303-a if it finds that
a party has asserted or maintained a frivolous cause of action,
counterclaim, cross-claim or defense, a court may punish any
frivolous conduct that occurs during the course of litigation
under Part 130, including the making of a frivolous motion. 176
In Brill, for example, although the motion for summary
judgment was ultimately denied as untimely, the plaintiffs
were placed on notice that there was a critical deficiency in the
proof necessary to establish a cause of action against the
City. 177 If the plaintiffs continued to prosecute the case through
trial without any proof that the City was on written notice of
the defect, a strong argument could be made that the plaintiffs
and their attorney should be subject to sanctions under CPLR
8303-a or Part 130. 178 In these circumstances, the plaintiffs
22, § 130-1.2 (2005). An award of costs and/or the imposition of sanctions is entered as
a judgment of the court. Id.
176
See SIEGEL, supra note 36, § 414A. See also Testa v. Koerner Ford of
Syracuse, Inc., 261 A.D.2d 866, 868, 689 N.Y.S.2d 818, 821 (App. Div. 4th Dep’t 1999);
Harley v. Druzba, 169 A.D.2d 1001, 1002-03, 565 N.Y.S.2d 278, 280 (App. Div. 3d Dep’t
1991).
177
Although the Court of Appeals did not consider the merits of the City’s
motion, two courts did, and found that plaintiffs failed to establish that the City had
prior written notice. Brill v. City of New York, 781 N.Y.S.2d 261, 263 (N.Y. 2004); see
supra notes 156-60 and accompanying text. In light of the mandate of Brill and its
progeny that the merits of an untimely motion are not to be considered absent good
cause, supra notes 25-28, it is unlikely that such pre-trial findings will be expressly
made in future cases in which a movant fails to comply with CPLR 3212(a). 151
Siegel’s Practice Review, Sanction Against Plaintiff for Continuing Action in Which
Summary Judgment for Defendant Was Warranted, but Was Denied for Lateness?, at 34 (July 2004). There will, however, be many instances in which the supporting proof
submitted by defendant with an untimely motion will place the plaintiff on notice that
her allegations lack a reasonable basis. In addition, there will be instances in which an
appellate court reverses a finding of “good cause” and remands the case for trial
pursuant to Brill’s direction. See supra notes 150-51 and accompanying text. In these
circumstances, it may be apparent that the plaintiff will be unable to establish a
necessary element of the cause of action.
178
See Mitchell v. Herald Co., 137 A.D.2d 213, 218-19, 529 N.Y.S.2d 602, 60507 (App. Div. 4th Dep’t 1988) (plaintiff and his counsel sanctioned under CPLR 8303-a
because they had a duty to act in good faith to investigate claims and promptly
discontinue action where inquiry would reveal that claims lacked reasonable basis).
N.Y. COMP. CODES R. & REGS. tit. 22, § 130-1.5 (2005) states that Part 130-1.1 will not
apply “to requests for costs or attorneys’ fees subject to the provisions of CPLR 8303-a.”
See Entm’t Partners Group, Inc. v. Davis, 590 N.Y.S.2d 979, 984 (Sup. Ct. New York
County 1992), aff’d, 603 N.Y.S.2d 439 (App. Div. 1st Dep’t 1993); Alexander, Practice
Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, C8303-a, at 89-92 (Supp.
2006). See also Testa, 689 N.Y.S.2d at 821; 1051 Enters., Inc. v. DeBeer, 230 A.D.2d
731, 732, 646 N.Y.S.2d 57, 58 (App. Div. 2d Dep’t 1996); Harley, 565 N.Y.S.2d at 280;
Guevara v. Jocara Realty Co., No. 2002-1510, 2003 WL 21704397, at *1 (N.Y. App.
Term, 2d & 11th Jud. Dists. 2003); Forstman v. Arluck, 149 Misc. 2d 929, 932-33, 566
N.Y.S.2d 462, 463-64 (Sup. Ct. Suffolk County 1991).
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would have been placed on notice of the absence of a necessary
element of their cause of action and yet continued, knowing
that it lacked merit. 179
3. Voluntary Discontinuance
Although the City was denied summary judgment in
Brill, the plaintiffs were placed in a rather difficult position. If
proof of prior written notice could not be obtained, the plaintiffs
had the option of voluntarily discontinuing the action under
CPLR 3217(a)(2). This subdivision allows a party to
discontinue an action prior to its submission to a court or jury
by, among other methods, filing a stipulation with the clerk of
the court. 180 The court could also sign an order of
discontinuance upon such terms and conditions it deems
proper. 181
If the plaintiffs in Brill decided to voluntarily
discontinue their action, it would likely be without prejudice to
commence a new action. 182 The statute of limitations would,
however, likely bar any future action. In Brill, the plaintiffs’
179
See Mitchell, 529 N.Y.S.2d at 605-06 (“The bad faith of plaintiff and his
counsel was compounded by their failure to discontinue the action after being
specifically advised by defendant’s attorney that the claim was baseless.”). See also
N.Y. CODE OF PROF’L RESPONSIBILITY DR 7-102(A)(2) (McKinney 2005) (a lawyer shall
not “knowingly advance a claim that is unwarranted under existing law”).
180
N.Y. C.P.L.R. 3217(a)(2) (McKinney 2005). The stipulation must be in
writing signed by the attorneys of record for all parties. Id. See also N.Y. C.P.L.R. 2104
(McKinney 2005) (stating requirements for valid stipulation). The stipulation must be
filed with the county clerk by the defendant, requiring the payment of a fee. N.Y.
C.P.L.R. 3217(d) (McKinney 2005) (listing fees); N.Y. C.P.L.R. 8020(d) (McKinney
Supp. 2006) (same). See Certified Elec. Contracting Corp. v. City of New York, 804
N.Y.S.2d 794, 796 (App. Div. 2d Dep’t 2005) (plaintiff never executed stipulation of
discontinuance and never filed it with the court). CPLR 3217(a)(2) cannot be used if
one of the parties is an infant, incompetent person or conservatee or if a person not a
party has an interest in the subject matter of the action. N.Y. C.P.L.R. 3217(a)(2)
(McKinney 2005). CPLR 3217(a)(2) allows the parties to discontinue the action without
a court order. Id.
181
N.Y. C.P.L.R. 3217(b) (McKinney 2005). If the case has been submitted to
the jury or court, “the court may not order an action discontinued except upon the
stipulation of all parties appearing in the action.” Id.
CPLR 8020(d) imposes a $35 fee for the filing of all discontinuances in
actions pending in supreme and county courts. N.Y. C.P.L.R. 8020(d) (McKinney Supp.
2006). Pursuant to CPLR 3217(d), all discontinuances in actions pending in supreme
and county court must be filed with the clerk of the court by the defendant. Id. See 137
Siegel’s Practice Review, Administrative Problems for Courts and Procedural Pitfalls
for Parties Abound as Fees are Imposed for Making Motions and Cross-Motions, and
Filing of Settlements is Made Mandatory (Part II), at 3 (July 2003).
182
N.Y. C.P.L.R. 3217(c) (McKinney 2005). If the party seeking to voluntarily
discontinue the action has not obtained such relief in the past, the discontinuance is
generally without prejudice. Id. The notice, stipulation or order of discontinuance
could, however, provide otherwise. Id.
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cause of action, which sounded in negligence, accrued on
February 15, 1998 when Ona Brill tripped and fell on a
sidewalk in Brooklyn. 183 Their action was commenced on June
4, 1998, 184 within the one year and ninety days after the fall. 185
The period within which to commence an action expired in May
1999. 186 Therefore, a discontinuance would have had to have
been accomplished, so as to permit a timely second action, long
before the summary judgment motion in Brill was made.
4. Ethical Obligations To Client
New York State’s civil caseload is comprised largely of
personal injury cases. 187 In an overwhelming majority of these
183
See, e.g., SIEGEL, supra note 36, § 40 (“In the personal injury case
predicated on negligence, the applicable . . . period starts at the moment of injury.”).
184
An action or special proceeding is commenced in New York’s superior
courts (i.e., supreme and county courts) when the initiatory papers related to the action
or proceeding are filed with the appropriate clerk. See, e.g., N.Y. C.P.L.R. 304
(McKinney 2005); Harris v. Niagara Falls Bd. Of Educ., 811 N.Y.S.2d 299 (N.Y. 2006);
Mendon Ponds Neighborhood Ass’n v. Dehm, 98 N.Y.2d 745, 746-47, 781 N.E.2d 883,
883-84, 751 N.Y.S.2d 819, 819-20 (2001); Peace v. Zhang, 15 A.D.3d 956, 957, 789
N.Y.S.2d 362, 363 (App. Div. 4th Dep’t 2005); SIEGEL, supra note 36, §§ 63, 77.
Effective September 8, 2005, in the New York City Civil Courts, District Courts and
City Courts, a “filing” system has replaced the prior procedure in which actions were
commenced by service of process. 2005 N.Y. Sess. Laws page 1332 (McKinney). For a
discussion of the new filing system in these lower courts and a discussion of various
distinctions with the commencement system in Supreme and County Court, see 164
Siegel’s Practice Review, Basic Change in Practice in Civil, District, and City Courts:
“Filing” System Adopted; Summons Service No Longer Deemed “Commencement” Part
I, at 1-4 (Aug. 2005); 165 Siegel’s Practice Review, Basic Change in Practice in Civil,
District, and City Courts: “Filing” System Adopted; Summons Service No Longer
Deemed “Commencement” Part II, at 1-4, (Sept. 2005).
185
N.Y. GEN. MUN. LAW § 50-i(1)(c) (McKinney 2005) (action against a city for
personal injury must be “commenced within one year and ninety days after the
happening of the event upon which the claim is based”). In addition, a plaintiff in these
circumstances must serve a notice of claim upon the municipal entity “in compliance
with section 50-e of this chapter.” Id. § 50-i(1)(a). The plaintiff must also plead that at
least thirty days have elapsed since the service of the notice of claim and that
“adjustment or payment” of the claim has been refused. Id. § 50-i(1)(b); supra note 159.
186
N.Y. GEN. MUN. LAW § 50-i(1)(c) (McKinney 2005).
187
See generally 26TH ANNUAL REPORT OF THE CHIEF ADMINISTRATOR OF THE
COURTS OF THE STATE OF NEW YORK, at 11-12 (indicating that 189,306 requests for
judicial intervention were filed in actions pending in supreme court for the calendar
year 2003, and that 42% of these cases involved torts [i.e. cases involving motor vehicle
accidents – 24%, medical malpractice – 2%, and “other tort[s]” – 16%]); 25TH ANNUAL
REPORT OF THE CHIEF ADMINISTRATOR OF THE COURTS OF THE STATE OF NEW YORK, at
11-12 (indicating that 189,921 requests for judicial intervention were filed in actions
pending in supreme court for the calendar year 2002, and that 43% of these cases
involved torts [i.e. cases involving motor vehicle accidents – 24%, medical malpractice –
2%, and “other tort[s]” – 17%]); 24TH ANNUAL REPORT OF THE CHIEF ADMINISTRATOR OF
THE COURTS OF THE STATE OF NEW YORK, at 11-12 (indicating that 184,490 requests for
judicial intervention were filed in actions pending in supreme court for the calendar
year 2001, and that 43% of these cases involved torts [i.e. cases involving motor vehicle
accidents – 24%, medical malpractice – 2%, and “other tort[s]” – 17%]); 23RD ANNUAL
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CPLR 3212(a)’S TIMING REQUIREMENT
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cases, the plaintiff is represented on a contingent fee basis. 188
Based on these two facts, it is reasonable to anticipate that the
Court’s holding in Brill may result in many situations in which
a plaintiff’s lawyer no longer has an incentive to vigorously
prosecute her client’s case.
We can highlight the nature of the problem using the
facts and procedural history in Brill as a typical example. 189 As
noted above, Brill provides that if an untimely summary
judgment motion is made without good cause, the case must
proceed to trial. 190 In a case similar to Brill, where two courts
have determined that an untimely defendant’s motion has
merit, the plaintiff’s lawyer may see the writing on the wall
and anticipate the outcome of an inevitable motion to dismiss
during trial. 191 Given the significant time and expense
necessary to bring a case to trial, 192 and the strong probability
of a directed verdict, an attorney representing a plaintiff in
these circumstances may decide to devote her attention to
other matters. If the case is one in which the lawyer represents
the client on a contingent fee basis, there is a strong economic
disincentive to bring the case to trial. 193
REPORT OF THE CHIEF ADMINISTRATOR OF THE COURTS OF THE STATE OF NEW YORK, at
11-12 (indicating that 183,391 requests for judicial intervention were filed in actions
pending in supreme court for the calendar year 2000, and that 42% of these cases
involved torts [i.e. cases involving motor vehicle accidents – 23%, medical malpractice –
2%, and “other tort[s]” – 17%]).
188
See N.Y. CODE OF PROF’L RESPONSIBILITY DR 2-106 (McKinney 2005)
(discussing fees, including contingent fees, in various circumstances). There are rules
in each of the four departments of the Appellate Division governing contingency fees.
See N.Y. COMP. CODES R. & REGS. tit. 22, § 603.7 (2005) (rules for the 1st Dep’t); Id. §
691.20 (rules for the 2d Dep’t); N.Y. COMP. CODES R. & REGS. tit. 22, § 806.13 (2005)
(rules for the 3d Dep’t); N.Y. COMP. CODES R. & REGS. tit. 22, § 1022.2 (2005) (rules for
the 4th Dep’t).
189
This discussion does not reflect or attempt to describe the actual conduct of
the lawyers representing the plaintiffs in Brill. The discussion simply uses the facts
and procedural history of Brill as an example to demonstrate a perceived problem.
190
Brill v. City of New York, 781 N.Y.S.2d 261, 265 (N.Y. 2004). See supra
notes 149-51 and accompanying text.
191
See supra notes 156-60 and accompanying text.
192
See Court of Appeals Addresses Disputed Time Issue on Summary
Judgment Motions, N.Y. ST. L. DIG., June 2004, at 1 (“The majority view [in Brill],
taken strictly, would therefore require that the plaintiff call her witnesses and put in
her case, and that would be an undertaking – if we assume that the case has been ripe
for summary judgment all the while – that will indeed impose on all.”).
193
If the lawyer’s fee is contingent on a recovery in the action, the lawyer will
obviously not be compensated for her time. See N.Y. CODE OF PROF’L RESPONSIBILITY
DR 2-106(D) (McKinney 2005) (prescribing writing in contingent fee matter). In
addition, most lawyers in personal injury litigation agree to advance the expenses of
litigation, such as court costs, expenses of investigation, expenses of medical
examination, and costs of obtaining and presenting evidence. The New York Lawyers’
Code of Professional Responsibility permits a lawyer to reach an agreement of this
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Despite the dark cloud hanging over many cases as a
result of Brill’s holding, the lawyer for the plaintiff in such a
case still has a duty to zealously represent her client. 194
Therefore, the lawyer has an obligation to attempt to correct
any apparent deficiency in the case and prepare for trial. 195 If
the lawyer reasonably believes that the deficiency cannot be
cured, the lawyer must confer with the client and discuss the
possibility of voluntarily discontinuing the action or offering to
settle. 196 In addition, the lawyer must discuss the possibility of
a court awarding sanctions for frivolous conduct. 197 It is the
client, however, who has the ultimate authority to make the
decision on how to proceed. 198
If the client in a case similar to Brill rejects the lawyer’s
advice and decides to go to trial, the lawyer may need to
consider withdrawing from the representation. If the lawyer
reasonably believes that the plaintiff’s claims are no longer
supported by existing law, and there is no good faith argument
nature with a client, “provided the client remains ultimately liable for such expenses.”
N.Y. CODE OF PROF’L RESPONSIBILITY DR 5-103(B)(1) (McKinney 2005). Frequently,
however, the lawyer is not able to recoup these expenditures from the client in a
personal injury action.
194
See N.Y. CODE OF PROF’L RESPONSIBILITY DR 7-101 (McKinney 2005)
(“Representing a client zealously”).
195
The lawyer may attempt to accomplish this task by securing new and
additional proof. See supra notes 161-65 and accompanying text.
196
N.Y. C.P.L.R. 3217 (McKinney 2005). See supra notes 180-86 and
accompanying text. See generally N.Y. CODE OF PROF’L RESPONSIBILITY EC 7-8
(McKinney 2005):
A lawyer should exert best efforts to insure that decisions of the client are
made only after the client has been informed of relevant considerations. A
lawyer ought to initiate this decision-making process if the client does not do
so. Advice of a lawyer to the client need not be confined to purely legal
considerations. A lawyer should advise the client of the possible effect of each
legal alternative. A lawyer should bring to bear upon this decision-making
process the fullness of his or her experience as well as the lawyer’s objective
viewpoint.
Id.
197
198
See supra notes 166-76 and accompanying text.
See N.Y. CODE OF PROF’L RESPONSIBILITY EC 7-7 (McKinney 2005):
In certain areas of legal representation not affecting the merits of the cause
or substantially prejudicing the rights of a client, a lawyer is entitled to make
decisions. But otherwise the authority to make decisions is exclusively that of
the client and, if made within the framework of the law, such decisions are
binding on the lawyer. As typical examples in civil cases, it is for the client to
decide whether to accept a settlement offer or whether to waive the right to
plead an affirmative defense.
Id.
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to change the existing law, the lawyer is obligated to make a
motion to withdraw from the representation. 199
B.
What Does the Defendant Do Now?
What can a party, whose motion for summary judgment
was denied on the ground that it was untimely, do to
ameliorate the loss of the use of summary judgment? The Brill
court prescribed several variations of one particular remedy, a
motion for judgment during trial pursuant to CPLR 4401.
Other remedies may also exist, including a motion to dismiss
for failure to state a cause of action pursuant to CPLR
3211(a)(7). Both varieties of remedies – those spelled out by the
Brill court and the possible alternatives – will be discussed
below.
1. CPLR 4401 – Motion for Judgment During Trial
The majority in Brill stated that a defendant who fails
to move for summary judgment in a timely manner has two
options: (1) move to dismiss the action after the plaintiff rests,
or (2) move for a directed verdict during the trial. These options
are sanctioned by CPLR 4401, which permits a party to:
move for judgment with respect to a cause of action or issue upon the
ground that the moving party is entitled to judgment as a matter of
law, after the close of the evidence presented by an opposing party
with respect to such cause of action or issue, or at any time on the
basis of admissions. 200
The dissent in Brill offered a third option ostensibly
under CPLR 4401, a motion to dismiss following the parties’
opening statements. As a general rule, a motion for judgment
199
Id. at DR 2-110(B)(2) (requiring lawyer representing a client before a
tribunal to make a motion to withdraw if “[t]he lawyer knows or it is obvious that
continued employment will result in violation of a Disciplinary Rule”); Id. at DR 7102(A)(2) (preventing a lawyer from “[k]nowingly advanc[ing] a claim or defense that is
unwarranted under existing law, except that the lawyer may advance such claim or
defense if it can be supported by good faith argument for an extension, modification, or
reversal of existing law”). See also id. at DR 2-110(B)(1) (requiring lawyer to move to
withdraw from representing client if “[t]he lawyer knows or it is obvious that the client
is bringing the legal action, conducting the defense, or asserting a position in the
litigation, or is otherwise having steps taken, merely for the purpose of harassing or
maliciously injuring any person”); Id. at DR 2-110(C)(1)(iii) (allowing lawyer to
withdraw if client “[i]nsists that lawyer pursue a course of conduct which is illegal or
prohibited under the Disciplinary Rules”); Id. at DR 7-102(A)(1) (requiring that when
representing a client, a lawyer may not “[f]ile a suit, assert a position, conduct a
defense, delay a trial, or take other action on behalf of the client when the lawyer
knows or when it is obvious that such action would serve merely to harass or
maliciously injure another”).
200
N.Y. C.P.L.R. 4401 (McKinney 2005).
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as a matter of law under CPLR 4401 only lies after the
conclusion of the case of the party against whom judgment is
sought. 201 However, judgment as a matter of law at this
juncture on the basis of an “admission,” such as a statement by
a party’s counsel, is only appropriate where, assuming the
truth of the facts alleged by the plaintiff, the plaintiff has no
case. 202 This occurs when counsel “intentionally states or
admits some fact that, in any view of the case, is fatal to the
action.” 203
While the various applications for judgment as a matter
of law pursuant to CPLR 4401 offer the defendant what she
ultimately desires to obtain, i.e., a dismissal of the action, they
require the defendant to prepare for and participate in a
trial. 204 Other mechanisms may exist that will allow a
defendant who has lost the ability to make a summary
judgment motion to secure dismissal of an action without
participating in a trial.
201
See, e.g., Siegel, Practice Commentaries, McKinney’s Cons. Laws of N.Y.,
Book 7B, CPLR C4401:5 (1992).
202
See, e.g., Siegel, supra note 201, at C4401:2, at 406; see also Cuellar v. City
of N.Y., 5 A.D.3d 530, 531, 772 N.Y.S.2d 872, 873 (App. Div. 2d Dep’t 2004)
(applications to dismiss after completion of counsels’ opening statements are
“disfavored,” and should only be granted where, “from all available indications, the
case is doomed to defeat” (citation omitted)); Jones v. Davis, 307 A.D.2d 494, 498, 763
N.Y.S.2d 136, 140 (App. Div. 3d Dep’t 2003) (stating that “practice of dismissing a
complaint at the conclusion of counsel’s opening statement is disfavored, and should
only be done if ‘on the opening it becomes obvious that the suit cannot be maintained
because it lacks a legal basis or, when taken in its strongest light, cannot
succeed’”(citation omitted)).
203
See Riccio v. De Marco, 188 A.D.2d 847, 849, 591 N.Y.S.2d 569, 572 (App.
Div. 3d Dep’t 1992) (quoting Hoffman House v. Foote, 172 N.Y. 348, 351, 65 N.E. 169,
169 (1902)). See also Ballantyne v. City of New York, 19 A.D.3d 440, 440-41, 797
N.Y.S.2d 506, 506 (App. Div. 2d Dep’t 2005):
A dismissal of the complaint after plaintiff’s attorney’s opening statement is
warranted only where “it can be demonstrated either (1) that the complaint
does not state a cause of action . . . (2) that a cause of action well-stated is
conclusively defeated by something interposed by way of defense and clearly
admitted as a fact or (3) that . . . counsel for the plaintiff, in his [or her]
opening [statement], by some admission or statement of fact, so completely
ruined his [or her] case that the court was justified in granting [a motion to
dismiss].”
(citation omitted); Gleyzer v. Steinberg, 254 A.D.2d 455, 455, 679 N.Y.S.2d 154, 154
(App. Div. 2d Dep’t 1998) (same).
204
In the event that a defendant is forced to participate in a trial to vindicate
her position, and plaintiff has not offered proof additional to that offered on the late
summary judgment motion, the defendant may seek to recover costs and reasonable
attorney’s fees. See supra notes 166-76 and accompanying text.
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2. CPLR 3211(a)(7) – Motion to Dismiss
The motion to dismiss resides in CPLR 3211. Such a
motion is directed at the entire complaint or a particular cause
of action therein, based on one or more of the grounds
enumerated in the statute. 205 Generally, a motion to dismiss
must be made by a defendant prior to the service of her answer.
Certain grounds for dismissal may, however, be raised at any
time, including the CPLR 3211(a)(7) motion to dismiss for
failure to state a cause of action. 206
CPLR 3211(a)(7) permits a party to move for dismissal
of one or more causes of action asserted against her on the
ground that a “pleading fails to state a cause of action.” In
addition to testing the facial validity of a complaint, CPLR
3211(a)(7) allows a defendant to challenge the merits of a
plaintiff’s claim or claims. 207 Specifically, where affidavits or
other evidentiary materials are submitted by a CPLR
3211(a)(7) movant, the court may elect to treat the motion as
one for summary judgment after providing proper notice to the
parties. 208 If the court makes this election and the papers and
205
N.Y. C.P.L.R. 3211(a) (McKinney 2005). See Siegel, Practice
Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3211:5, C3211:6,
C3211:9 (2005). CPLR 3211(b) permits a party to seek dismissal of a defense asserted
in another party’s pleading.
206
N.Y. C.P.L.R. 3211(e) (McKinney 2005). See, e.g., Schel v. Roth, 242 A.D.2d
697, 697, 663 N.Y.S.2d 609, 610 (App. Div. 2d Dep’t 1997); Siegel, Practice
Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3211:28, C3211:52,
C3211:58 (2005).
207
N.Y. C.P.L.R. 3211(c) (McKinney 2005) (allowing any party to a motion
under CPLR 3211(a) to submit any evidence that could be considered on a motion for
summary judgment). See, e.g., 150 Siegel’s Practice Review, Is There Any Way Around
the Court of Appeals Brill Case, Which Forces to Trial an Action Ripe for Summary
Judgment But Not Moved For on Time?, at 1 (June 2004) [hereinafter Is There Any Way
Around Brill?]; Siegel, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book
7B, CPLR C3211:23, C3211:25 (2005); SIEGEL, supra note 36, § 265.
208
N.Y. C.P.L.R. 3211(c) (McKinney 2005) (stating that “[w]hether or not
issue has been joined, the court, after adequate notice to the parties, may treat the
motion as a motion for summary judgment”). Courts have recognized three exceptions
to the requirement that notice be given of conversion of a motion to dismiss into one for
summary judgment: (1) where the action involves no issues of fact, but only issues of
law fully appreciated and argued by both sides, (2) when request for summary
judgment treatment is specifically made by both sides, and (3) when both sides make it
unequivocally clear that they are laying bare their proof and deliberately charting
summary judgment course. See, e.g., Four Seasons Hotels Ltd. v. Vinnik, 127 A.D.2d
310, 316, 515 N.Y.S.2d 1, 8 (App. Div. 1st Dep’t 1987); Int’l Flavors & Fragrances, Inc.
v. Royal Ins. Co. of Am., 6 Misc. 3d 1024(A), 800 N.Y.S.2d 347, No. 605910-01, 2003 WL
24013814 (Sup. Ct. New York County 2003). See also Mihlovan v. Grozavu, 72 N.Y.2d
506, 508, 531 N.E.2d 288, 289, 534 N.Y.S.2d 656, 657 (1988) (stating that court, and
not a party, must give notice that it is treating a motion as one for summary
judgment).
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proof submitted in support of a motion to dismiss establish that
the defendant should be awarded judgment as a matter of law,
the complaint may be dismissed.
There are, however, several obstacles that may prevent
a party from moving under CPLR 3211(a)(7) after the time
period in CPLR 3212(a) has expired. Although it may occur on
occasion, 209 it will be the rare case in which, after the filing of a
note of issue, a party’s pleading still fails to state a cause of
action. In addition, a party seeking to use the motion to dismiss
for failure to state a cause of action in lieu of a summary
judgment motion will be foreclosed from doing so if the party
previously made a motion pursuant to CPLR 3211(a). The
“single motion rule,” which is a product of CPLR 3211(e),
Several courts have also awarded dismissal on a CPLR 3211(a)(7) motion,
apparently in the absence of an election under CPLR 3211(c), when plaintiff’s legal
conclusions are “either inherently incredible or flatly contradicted by documentary
evidence.” Greene v. Doral Conference Ctr. Assocs., 18 A.D.3d 429, 430, 795 N.Y.S.2d
252, 253-54 (App. Div. 2d Dep’t 2005); Asgahar v. Tringali Realty, Inc., 18 A.D.3d 408,
409, 795 N.Y.S.2d 68, 70 (App. Div. 2d Dep’t 2005); Meyer v. Guinta, 262 A.D.2d 463,
464, 692 N.Y.S.2d 159, 161 (App. Div. 2d Dep’t 1999); see also Guggenheimer v.
Ginzburg, 43 N.Y.2d 268, 275, 372 N.E.2d 17, 20-21, 401 N.Y.S.2d 182, 185 (1977)
(stating that “unless it has been shown that a material fact as claimed by the pleader
to be one is not a fact at all and unless it can be said that no significant dispute exists
regarding it, again dismissal should not eventuate”); Williams v. N.Y. City Hous.
Auth., 238 A.D.2d 413, 414, 656 N.Y.S.2d 332, 333 (App. Div. 2d Dep’t 1997) (“Where,
as here, evidentiary material is submitted on a CPLR 3211 motion, it may be
considered in assessing the viability of a complaint, but unless the defendant
demonstrates that a material fact alleged by the plaintiff to be true ‘is not a fact at all’
and that ‘no significant dispute exists regarding it,’ the complaint should not be
dismissed.” (citation omitted)).
209
At least one court has granted a CPLR 3211(a)(7) motion to dismiss a
complaint where the movant was foreclosed from moving for summary judgment due to
its failure to comply with the timeliness provision of CPLR 3212(a). Santana v. City of
New York, 6 Misc. 3d 642, 643, 787 N.Y.S.2d 651, 652-53 (N.Y. Civ. Ct. New York
County 2004). In Santana, the plaintiff was assaulted by an inmate whom she was
visiting at a correctional facility operated by the defendant. The plaintiff subsequently
commenced an action to recover damages against the defendant, alleging negligence in
the operation of the correctional facility. The defendant’s motion for summary
judgment dismissing the complaint was denied by the court, which cited Brill, on the
ground that the motion was untimely under CPLR 3212(a). However, the court granted
the defendant’s motion to dismiss for failure to state a cause of action, noting that the
plaintiff failed to allege that a “special relationship” existed between the plaintiff and
defendant, an element of the plaintiff’s case.
A motion in limine, which is generally used to test the admissibility of
evidence in advance of trial, is an inappropriate device to obtain relief in the nature of
summary judgment. See, e.g., Clermont v. Hillsdale Indus., Inc., 6 A.D.3d 376, 377, 773
N.Y.S.2d 901, 902 (App. Div. 2d Dep’t 2004); Downtown Art Co. v. Zimmerman, 232
A.D.2d 270, 270, 648 N.Y.S.2d 101, 101 (App. Div. 1st Dep’t 1996); George Miller Brick
Co., Inc. v. Stark Ceramics, Inc., 9 Misc. 3d 151, 166-67, 801 N.Y.S.2d 120, 134 (Sup.
Ct. Monroe County 2005). Accordingly, a party cannot circumvent the timeliness
provision of CPLR 3212(a) by labeling her motion as one in limine. Clermont, 773
N.Y.S.2d at 902; George Miller Brick Co., Inc., 801 N.Y.S.2d at 134.
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CPLR 3212(a)’S TIMING REQUIREMENT
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proscribes multiple motions to dismiss premised on the
grounds listed in CPLR 3211(a). 210 Therefore, if a party seeks to
make a CPLR 3211(a)(7) motion after the service of her
answer, it will not be entertained if she has already made a
pre-answer motion to dismiss. 211
If the court elects to “treat the motion as a motion for
summary judgment” pursuant to CPLR 3211(c), 212 there are
indications that it should be considered a motion for summary
judgment under CPLR 3212, rather than one for dismissal
under CPLR 3211. 213 If such treatment is afforded a CPLR
3211(a)(7) motion, the timeliness provision of CPLR 3212(a)
will likely apply. 214 If a party is allowed to circumvent the
timing requirements in CPLR 3212(a) in this fashion, “it could
invite wholesale resort to the CPLR 3211(a)(7) motion in any
case in which the time for a CPLR 3212 summary judgment
motion has expired.” 215 Furthermore, allowing a party to
proceed in this fashion will ultimately result in the very
problems that CPLR 3212(a) and the Brill decision attempted
210
CPLR 3211(e) states, in pertinent part, that: “At any time before service of
the responsive pleading is required, a party may move on one or more of the grounds
set forth in subdivision (a) [of 3211], and no more than one such motion shall be
permitted.” N.Y. C.P.L.R. 3211(e) (McKinney 2005). See Siegel, Practice Commentaries,
McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3211:55 (2005); SIEGEL, supra note
36, § 273.
211
See McLearn v. Cowen & Co., 60 N.Y.2d 686, 688, 455 N.E.2d 1256, 1257,
468 N.Y.S.2d 461, 462 (1983); Miller v. Schreyer, 257 A.D.2d 358, 683 N.Y.S.2d 51
(App. Div. 1st Dep’t 1999); Reilly v. Prentice, 141 A.D.2d 520, 520, 529 N.Y.S.2d 343,
344 (App. Div. 2d Dep’t 1988).
212
See supra notes 207-08 and accompanying text.
213
Rich v. Lefkovits, 56 N.Y.2d 276, 281-82, 437 N.E.2d 260, 263, 452
N.Y.S.2d 1, 4 (1982).
214
See Is There Any Way Around Brill?, supra note 207:
CPLR 3211(c) anticipates that the evidence before the court in a given case
may be ample enough to support a summary judgment motion. It does this by
empowering the court to treat the CPLR 3211 motion as such as long as it
gives the parties notice of its intention.
An argument that would put a quick end to this possibility is that the court
should not ‘treat’ as summary judgment a motion that would now be
untimely under the terms of the summary judgment provision itself, CPLR
3212(a).
Id. See also Diaz v. N.Y. City Health & Hosps. Corp., 289 A.D.2d 365, 734 N.Y.S.2d 882
(App. Div. 2d Dep’t 2001) (“Contrary to the defendants’ contention that their motion
was addressed to the pleadings pursuant to CPLR 3211(a)(7), the motion was for
summary judgment, and therefore it should have been made no later than 120 days
after the filing of the note of issue.” (citation omitted)).
215
166 Siegel’s Practice Review, Can a Motion to Dismiss under CPLR 3211
Circumvent the Time Limit on the Motion for Summary Judgment under CPLR 3212?,
at 1 (Oct. 2005).
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to remedy. 216 Accordingly, where a party seeking to circumvent
the timeliness provisions in CPLR 3212(a) makes a CPLR
3211(a)(7) motion to dismiss, which is subsequently converted
to a motion for summary judgment under CPLR 3211(c), the
movant should wind up in the same position: foreclosed from
moving for summary judgment absent a showing of good cause.
3. CPLR 3404 & 22 NYCRR § 202.27 – Laxness
Dismissals
A defendant who has been foreclosed from the use of the
summary judgment tool as a result of a violation of the
timeliness provision of CPLR 3212(a) may attempt to obtain
dismissal of an action pending against her by doing nothing
more than diligently pressing for a trial on the very matter
that the defendant has insisted contains no triable issue of fact.
If the plaintiff fails to appear or is unable to proceed when the
matter is set for trial, the defendant may be able to obtain a
“laxness dismissal.” 217 22 NYCRR section 202.27 and CPLR
3404 form the core of post-note of issue laxness dismissals, 218
and are the focus of the ensuing discussion.
Following the disposition of a summary judgment
motion, it is customary for a trial court to conduct a pretrial
conference. 219 The purpose of this conference is, among other
things, to review the issues to be tried and select a date on
which the trial is to commence. 220 Where a defendant’s
otherwise meritorious summary judgment motion has been
denied due to its untimeliness, plaintiff’s counsel,
acknowledging the fact that the action is unlikely to succeed,
216
See supra notes 19, 154 and accompanying text. Cf. Andrea v. Arnone,
Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C.,
5 N.Y.3d 514, 521, 840 N.E.2d 565, 569, 806 N.Y.S.2d 453, 457 (2005):
[W]hat is undesirable is sometimes also necessary, and it is often necessary,
as it is here, to hold parties responsible for their lawyers’ failure to meet
deadlines. Litigation cannot be conducted efficiently if deadlines are not
taken seriously, and we make clear again, as we have several times before,
that disregard of deadlines should not and will not be tolerated.
(citations omitted).
217
This phrase is borrowed from Professor Siegel’s treatise. SIEGEL, supra
note 36, at 625.
218
With respect to cases in which a note of issue has been filed, care must be
taken to avoid reliance on CPLR 3216 (“want of prosecution”) as a ground for dismissal.
CPLR 3216 only applies to cases that are in the pre-note of issue stage. E.g., Johnson v.
Sam Minskoff & Sons, Inc., 287 A.D.2d 233, 237, 735 N.Y.S.2d 503, 506 (App. Div. 1st
Dep’t 2001); Lopez v. Imperial Delivery Serv., Inc., 282 A.D.2d 190, 194, 725 N.Y.S.2d
57, 60 (App. Div. 2d Dep’t 2001).
219
See N.Y. COMP. CODES R. & REGS. tit. 22, § 202.26 (2005).
220
Id. § 202.26(c); see also SIEGEL, supra note 36, § 374.
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CPLR 3212(a)’S TIMING REQUIREMENT
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may want to dedicate her energies to other matters. 221
Concomitantly, plaintiff’s counsel may elect to skip or lightly
forget a pretrial conference scheduled on the matter, or send an
attorney to cover the conference who is unfamiliar with the
case or without authority to take meaningful actions with
respect to the matter. 222
Should this scenario unfold, plaintiff’s counsel will
expose the action to a laxness dismissal based on 22 NYCRR
section 202.27(b). 223 This rule authorizes a trial court to dismiss
an action where plaintiff’s counsel fails to appear for a
conference or, upon appearing, fails to announce her readiness
to proceed with the conference. 224 Thus, a violation of the rule
may provide another alternative for a defendant who can no
longer avail herself of a meritorious summary judgment
motion, but is still bent on attaining a dismissal. 225 If the trial
court invokes § 202.27(b) and dismisses the action, plaintiff
must provide a reasonable excuse for the default and
demonstrate that her action has merit to successfully vacate
the default. 226 If a meritorious summary judgment motion was
221
See supra notes 194-198 and accompanying text.
The Uniform Rules require an attorney who appears at a pretrial
conference to be “fully familiar with the action and authorized to make binding
stipulations or accompanied by a person empowered to act on behalf of the party.” N.Y.
COMP. CODES R. & REGS. tit. 22, § 202.26(e) (2005).
223
While Uniform Rule section 202.27 is only applicable to actions in the
supreme and county courts, the respective uniform rules of the New York City Civil
Court, the City Courts, and the District Courts provide each of these courts with an
analogous calendar control device. Id. § 208.14(b) (“Uniform Civil Rules for the New
York City Civil Court”; “Calendar default; restoration; dismissal”); Id. § 210.14
(“Uniform Civil Rules for the City Courts Outside of the City of New York”; “Defaults”);
Id. § 212.14(b) (“Uniform Civil Rules for the District Courts”; “Calendar default;
restoration; dismissal”).
224
See, e.g, Echevarria v. Waters, 8 A.D.3d 330, 331, 777 N.Y.S.2d 724, 724
(App. Div. 2d Dep’t 2004) (dismissing the action pursuant to section 202.27(b) where
plaintiff’s counsel failed to appear at pretrial conference); Contractors Cas. & Sur. Co.
v. 535 Broadhollow Realty L.L.C., 276 A.D.2d 737, 737, 715 N.Y.S.2d 434, 435 (App.
Div. 2d Dep’t 2000) (striking defendants’ answer and ordering an inquest pursuant to
section 202.27(a) where defendants’ counsel failed to appear at pretrial conference);
Booth v. Hawk Contractors, Inc., 259 A.D.2d 577, 577, 686 N.Y.S.2d 770, 771 (App. Div.
1st Dep’t 1999) (dismissing action pursuant to section 202.27(b) where plaintiff’s
counsel failed to appear at trial-readiness conference).
225
Presumably a plaintiff’s lawyer would not intentionally skip or lightly
forget a pretrial conference for an action that the lawyer believes is meritorious. In any
event, if the conference is missed and the action is dismissed pursuant to
section 202.27(b), the lawyer may be able to vacate the default. See infra note 226 and
accompanying text.
226
See, e.g, Solomon v. Ramlall, 18 A.D.3d 461, 461, 795 N.Y.S.2d 76, 77 (App.
Div. 2d Dep’t 2005); Echevarria, 777 N.Y.S.2d at 724-25; Brannigan v. Bd. of Educ. of
Levittown Union Free School Dist., 307 A.D.2d 945, 946, 763 N.Y.S.2d 471, 472 (App.
Div. 2d Dep’t 2003); Uddaraju v. City of New York, 1 A.D.3d 140, 141, 766 N.Y.S.2d
222
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denied solely on the basis of the timeliness provisions in CPLR
3212(a), it may be very difficult for the plaintiff to demonstrate
that the default should be vacated based on the merits of the
action. In many instances, she may have no incentive to try. 227
In the event that a case similar to Brill is not
dismissed 228 or discontinued 229 prior to reaching its turn on the
trial calendar, the defendant may avert trial if the plaintiff
fails to appear for the commencement of the trial by failing to
answer a call at the trial calendar, or appears but is not ready
to proceed. 230 Confronted with a plaintiff’s failure to appear for
the commencement of trial or failure to be ready to proceed, the
trial court has four options. 231 The court has the discretion to:
(1) adjourn the case, (2) mark the case “off” or strike it from the
trial calendar pursuant to CPLR 3404, 232 (3) vacate the note of
issue pursuant to Uniform Rule § 202.21(e),233 or (4) dismiss the
action pursuant to Uniform Rule § 202.27. 234
Neither the first nor the third option result in the
dismissal of the action. It is unlikely, however, that a court
would employ these options to a case resembling Brill, where
the merits of plaintiff’s claims are doubtful. The first option,
allowing for an adjournment of the case, is the “least drastic
course of action” and carries no consequences to the defaulting
party. 235 Given that it is the responsibility of the trial courts
under the Individual Assignment System 236 to move cases to
disposition expeditiously, 237 an adjournment of the trial of a
case that has no merit would be inappropriate. 238 Furthermore,
207, 208 (App. Div. 1st Dep’t 2003); Lopez v. Imperial Delivery Serv., 725 N.Y.S.2d 57,
62 (App. Div. 2d Dep’t 2001); Contractors Cas. & Sur. Co., 715 N.Y.S.2d at 435; Booth,
686 N.Y.S.2d at 771.
227
See supra notes 194-98 and accompanying text.
228
See supra notes 207-27 and accompanying text.
229
See supra notes 181-82 and accompanying text.
230
See N.Y. C.P.L.R. 3404 (McKinney 2005).
231
Brannigan, 763 N.Y.S.2d at 472; Basetti v. Nour, 731 N.Y.S.2d 35, 41 (App.
Div. 2d Dep’t 2001).
232
See infra notes 242-47 and accompanying text.
233
See supra note 84 and accompanying text.
234
See supra notes 223-27 and accompanying text.
235
Basetti, 731 N.Y.S.2d at 41.
236
Under the Individual Assignment System, which New York adopted on
January 6, 1986, a case gets assigned to a single judge who handles the case through
its disposition. See SIEGEL, supra note 36, § 77A.
237
Vincent C. Alexander, New Approach to Restoring Cases Marked ‘Off’ the
Trial Calendar, N.Y.L.J., Nov. 10, 2001, at 3, 5.
238
Adjournments of trial dates are frequently granted due to the engagement
of counsel in another matter before a different court. See generally N.Y. COMP. CODES
R. & REGS. tit. 22, §§ 125.1, 202.32 (2005). Adjournments are also frequently employed
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the third option of vacating the note of issue would be
inappropriate in a Brill situation, unless the certificate of
readiness 239 accompanying the note of issue is incorrect in some
material respect. 240
The remaining options of marking the matter “off” the
trial calendar pursuant to CPLR 3404 and dismissal under
Uniform Rule § 202.27 offer the prospect of dismissal of the
action, with the latter providing it immediately.
CPLR 3404, entitled “Dismissal of abandoned cases,”
provides:
A case in the supreme court or a county court marked “off” or struck
from the calendar or unanswered on a clerk’s calendar call, and not
restored within one year thereafter, shall be deemed abandoned and
shall be dismissed without costs for neglect to prosecute. The clerk
shall make an appropriate entry without the necessity of an order. 241
The statute, which should only be invoked where all
parties appear but some circumstance prevents the case from
immediately going to trial, 242 affords a dilatory plaintiff one
year to restore an action marked “off” the trial calendar. 243
Upon the expiration of the one-year period, the case is
automatically dismissed 244 if a motion to restore has not been
to accommodate scheduling problems related to witnesses, the illness of counsel, a
party or a witness, and personal or family emergencies.
239
See supra notes 83-84 and accompanying text.
240
Basetti, 731 N.Y.S.2d at 41.
241
N.Y. C.P.L.R. 3404 (McKinney 2005).
242
See Basetti, 731 N.Y.S.2d at 41.
243
There is disagreement as to the applicability of CPLR 3404 to actions in
the lower courts. See, e.g., Chavez v. 407 Seventh Ave. Corp., 10 Misc.3d 33, 807
N.Y.S.2d 785 (App. Term 2d & 11th Jud. Dists. 2005) (declining to follow prior holdings
and concluding that CPLR 3404 is applicable to the Civil Court of the City of New
York); But cf. Jeganathan v. O’Reilly, 195 Misc. 2d 197, 199-200, 753 N.Y.S.2d 814, 818
(City Ct. White Plains 2003) (holding that CPLR 3404 is not available as a calendar
control device in City Court); SIEGEL, supra note 36, § 376. As to actions in the New
York City Civil Court, the City Courts and the District Courts, the individual rules
applicable to those courts must be consulted. N.Y. COMP. CODES R. & REGS. tit. 22,
§ 208.14 (2005) (“Uniform Civil Rules for the New York City Civil Court”; “Calendar
default; restoration; dismissal”); N.Y. COMP. CODES R. & REGS. tit. 22, § 210.14 (2005)
(“Uniform Civil Rules for the City Courts Outside the City of New York”; “Defaults”);
N.Y. COMP. CODES R. & REGS. tit. 22, § 212.14 (2005) (“Uniform Civil Rules for the
District Courts”; “Calendar default; restoration; dismissal”).
244
See, e.g., Threatt v. Seton Health Sys., Inc., 277 A.D.2d 796, 796, 715
N.Y.S.2d 791, 792 (App. Div. 3d Dep’t 2000) (dismissal of abandoned case accomplished
automatically upon passage of one-year period); Meade v. L.A. Lama Agency, Inc., 260
A.D.2d 979, 980, 689 N.Y.S.2d 302, 304 (App. Div. 3d Dep’t 1999) (dismissal of action
where plaintiff fails to restore within statutory period is self-executing, requiring no
further ministerial action); Nunez v. County of Nassau, 265 A.D.2d 312, 313, 696
N.Y.S.2d 217, 218 (App. Div. 2d Dep’t 1999) (no motion to dismiss by defendant
necessary where plaintiff failed to restore action within one-year period, as dismissal
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made. 245 Restoration within the one-year period is free for the
asking and the plaintiff is not burdened with any required
showing. 246 If a plaintiff fails to duly restore the action within
one year and the action is dismissed, the plaintiff must make a
motion to vacate the dismissal. To succeed on such a motion,
the plaintiff must establish, among other things, that her
action is meritorious, 247 a showing that a plaintiff in a Brill
situation will be hard-pressed to make. Accordingly, CPLR
3404 may prove useful to the defendant in a Brill situation,
provided that plaintiff’s conduct causes the action to be marked
“off” the trial calendar and plaintiff is not inclined to move for
restoration of the action within the prescribed period.
The final option, dismissal pursuant to Uniform Rule
§ 202.27(b), 248 is not only the most desirable remedy in the eyes
of a defendant in a Brill situation, but is probably the most
appropriate. Should the plaintiff in a Brill situation fail to
appear for the commencement of trial, or appear but not be
ready to proceed, the trial court may dismiss the action
pursuant to § 202.27(b). 249 This would remove the one-year
grace period offered by CPLR 3404, 250 result in the immediate
was automatic); Lee v. Chion, 213 A.D.2d 602, 603, 623 N.Y.S.2d 927, 927 (App. Div. 2d
Dep’t 1995) (same); SIEGEL, supra note 36, § 376.
245
See, e.g., Ronsco v. Constr. Co. v. 30 East 85th Street Co., 219 A.D.2d 281,
283, 641 N.Y.S.2d 33, 35 (App. Div. 1st Dep’t 1996); Maida v. Rite Aid Corp., 210
A.D.2d 589, 590, 619 N.Y.S.2d 812, 813 (App. Div. 3d Dep’t 1994).
246
See, e.g., Brannigan v. Bd. of Educ. of Levittown Union Free Sch. Dist., 763
N.Y.S.2d 471, 472 (App. Div. 2d Dep’t 2003); Basetti v. Nour, 731 N.Y.S.2d 35, 39 (App.
Div. 2d Dep’t 2001); Lopez v. Imperial Delivery Serv., Inc., 725 N.Y.S.2d 57, 62 (App.
Div. 2d Dep’t 2001); SIEGEL, supra note 36, § 376.
247
See, e.g., Basetti, 731 N.Y.S.2d at 39; Lopez, 725 N.Y.S.2d at 62; SIEGEL,
supra note 36, § 376. The plaintiff must also establish: (1) a reasonable excuse for the
failure to timely restore; (2) lack of intent to abandon the action; and (3) a lack of
prejudice to her adversary. Castillo v. N.Y. City Hous. Auth., 6 A.D.3d 568, 568, 775
N.Y.S.2d 82, 82 (App. Div. 2d Dep’t 2004); Basetti, 731 N.Y.S.2d at 39; Aguilar v.
Djonvic, 282 A.D.2d 366, 366, 723 N.Y.S.2d 474, 476 (App. Div. 1st Dep’t 2001); Lopez,
725 N.Y.S.2d at 62; Bray v. Thor Steel & Welding Ltd., 275 A.D.2d 912, 912, 713
N.Y.S.2d 400, 401 (App. Div. 4th Dep’t 2000); Sanchez v. Javind Apt. Corp., 667
N.Y.S.2d 708, 710 (App. Div. 1st Dep’t 1998).
248
See supra notes 223-27 and accompanying text.
249
See, e.g., Solomon v. Ramlall, 795 N.Y.S.2d 76, 77 (App. Div. 2d Dep’t 2005)
(dismissing action pursuant to section 202.27(b) upon plaintiff’s counsel failure to
appear on date set for jury selection). The defendant should remind the trial judge of
any meritorious summary judgment motion that was denied based on untimeliness.
See generally Is There Any Way Around Brill?, supra note 207, at 1 (“The trial judge
should be apprised of any situation in which the case is ripe for summary disposition,
but in which a summary judgment motion was made too late, or – the more likely
scenario – was never made at all because the would-be movant recognized its
lateness.”).
250
See supra notes 242-47 and accompanying text.
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CPLR 3212(a)’S TIMING REQUIREMENT
1583
dismissal of the action, and place the burden on the plaintiff,
should she elect to move to vacate the dismissal, 251 to
demonstrate the merits of her case. 252 This type of dismissal is
warranted in such a case because it will expedite the
disposition of the matter, a main objective of the Individual
Assignment System. 253
4. Defense Lawyer’s Potential Exposure to Legal
Malpractice
If a defendant has meritorious grounds for a summary
judgment motion, it is obviously in her economic interests to
move promptly. Disposing of the case at the earliest possible
moment will generally result in a cost benefit to the defendant,
who can avoid the continued expense of attorney’s fees and
litigation disbursements. If a defendant is precluded from
making a meritorious motion for summary judgment based on
a failure to comply with CPLR 3212(a)’s time period, 254 it will
usually result from a lawyer’s failure to meet the deadline. As
the Court of Appeals held in Brill, the case will now have to
proceed to trial. 255 This will require a substantial amount of
preparation by the lawyers representing the defendant,
including the expense of hiring any necessary experts.
If the grounds for the untimely summary judgment
motion are meritorious, the defendant who is precluded from
making the motion because of a failure to comply with CPLR
3212(a)’s time frame may have a legal malpractice claim
against her lawyer. A legal malpractice action requires the
plaintiff to prove “three essential elements: (1) the negligence
of the attorney; (2) that the negligence was the proximate cause
251
The plaintiff in a Brill situation will have little or no incentive to move to
vacate a dismissal based on § 202.27. See supra notes 187-93 and accompanying text.
252
See supra note 226-27 and accompanying text.
253
E.g., Basetti v. Nour, 731 N.Y.S.2d 35, 41 (App. Div. 2d Dep’t 2001) (“[T]he
overall purpose of the Individual Assignment System (IAS) [is] to give trial judges
greater control over their cases and to move cases to disposition more expeditiously.”);
Johnson v. Minskoff & Sons, Inc., 735 N.Y.S.2d 503, 506 (App. Div. 1st Dep’t 2001)
(stating that “the Individual Assignment System . . . was intended to encourage trial
court control of cases and promote the disposition of cases within reasonable periods of
time”); Lopez v. Imperial Delivery Serv., Inc., 725 N.Y.S.2d 57, 61 (App. Div. 2d Dep’t
2001) (“Two of the objectives of the IAS were to encourage efficient trial court control of
cases and to promote the disposition of cases within reasonable periods of time.”).
254
See Brill v. City of N.Y., 781 N.Y.S.2d 261, 264-65 (N.Y. 2004) (stating that
meritorious, nonprejudicial filings, however tardy, cannot be considered in the absence
of good cause for the delay); supra notes 25-28 and accompanying text.
255
Brill, 781 N.Y.S.2d at 265.
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of the loss sustained; and (3) proof of actual damages.” 256 An
attorney who agrees to represent a client impliedly warrants
that, among other things, she “is familiar with the rules
regulating practice in actions of the type which [she]
undertakes to bring or defend and with such principles of law
in relation to such actions as are well settled in the practice of
law.” 257 From the two Court of Appeals cases that specifically
address the timeliness requirements of CPLR 3212(a), 258 it is
apparent that the dictates of the statute are now well settled. If
a lawyer fails to serve a meritorious motion for summary
judgment on a timely basis and cannot establish good cause for
the delay, a strong argument may be made that the attorney’s
conduct constituted negligence.
If negligence is established in this context, it will not be
difficult to satisfy the second and third elements of a legal
malpractice claim. Virtually any subsequent expense incurred
during the course of the litigation can be linked to the lawyer’s
failure to make the meritorious motion on a timely basis. The
proof of actual damages in this scenario will not be difficult to
establish, and may take the form of the lawyer’s invoice for any
services after the failed motion. 259
The prospect of a legal malpractice claim will only arise
in cases where the defendant actually possesses meritorious
grounds for a summary judgment motion. A court may
volunteer this observation when refusing to entertain a late
motion for summary judgment based on CPLR 3212(a)’s timing
256
Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer & Wood,
170 A.D.2d 108, 114, 573 N.Y.S.2d 981, 985 (App. Div. 1st Dep’t 1991), aff’d, 80 N.Y.2d
377, 590 N.Y.S.2d 831, 605 N.E.2d 318 (1992).
257
1B NEW YORK PATTERN JURY INSTRUCTIONS – CIVIL § 2:152, at 857 (3d ed.
2005).
258
See supra notes 21-28 and accompanying text.
259
The dispute may arise when, after receiving the lawyer’s invoice, the client
refuses to pay the lawyer for any services rendered or disbursements incurred after the
failed summary judgment motion. Before the lawyer can sue the client for any unpaid
fees, she must plead and prove compliance with New York’s Fee Dispute Resolution
Program. N.Y. COMP. CODES R. & REGS. tit. 22, § 137 (2005). “An attorney who
institutes an action to recover a fee must allege in the complaint: (1) that the client
received notice under this Part of the client’s right to pursue arbitration or (2) that the
dispute is not otherwise covered by this Part.” Id. § 137.6(b). See Lorin v. 501 Second
St. LLC, 2 Misc. 3d 646, 647, 769 N.Y.S.2d 361, 362 (N.Y. Civ. Ct. Kings County 2003)
(granting reargument and adhering to the earlier determination that complaint must
be dismissed for failure to comply with Part 137’s requirements). Part 137 does not
apply, however, to “claims involving substantial legal questions, including professional
malpractice or misconduct.” N.Y. COMP. CODES R. & REGS. tit. 22, § 137.1(b)(3) (2005).
2006]
CPLR 3212(a)’S TIMING REQUIREMENT
1585
requirements. 260 Even if a court is silent on the point, if it is
apparent that the client was denied the right to have a case
dismissed on summary judgment grounds because of the
attorney’s failure to comply with CPLR 3212(a)’s time periods,
the attorney may have an obligation to disclose the problem to
the client. 261
VIII.
CONCLUSION
CPLR 3212(a)’s timing requirement for summary
judgment motions will continue to have a pervasive and
significant effect on litigation in New York State courts. This
article has attempted to address the rule’s application in a
variety of contexts to provide guidance to the bench and bar.
As with so many aspects of civil procedure, the rule will
gradually settle into place on the landscape and become a
noncontroversial part of practice. In the meanwhile, given the
large number of cases still addressing CPLR 3212(a)’s
requirements, and the dramatic effect of the Court of Appeals’
recent decisions in Brill and Miceli, there will be several more
chapters in this saga.
260
In Brill, both the Supreme Court and the Appellate Division concluded
that defendant’s motion for summary judgment was meritorious. See supra notes 15659 and accompanying text. The Court of Appeals did not consider the merits of the
defendant’s motion. Brill v. City of N.Y., 781 N.Y.S.2d 261, 263 n.2 (N.Y. 2004).
261
N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Opinion No. 734 (Nov. 1,
2000) (opining that an attorney must report to the client a significant error or omission
that may give rise to a possible malpractice claim and, depending on the
circumstances, may be required to withdraw its representation of the client).
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POSTSCRIPT
Chief Judge Judith Kaye, New York Court of Appeals
As the author of Brill v. City of New York, I have several
reactions to Professor Connors’ article. First, I am impressed –
indeed, dazzled – by the author’s comprehensive treatment of
his subject, and by his scholarship. As a CPLR “junkie,” I find
all of the pathways to, from, in, out and around Brill downright
fascinating.
On another level, I feel both elation and dismay. Elation
because the Court’s purpose in insisting upon strict compliance
with the clear statutory prescription was in part to underscore
the seriousness of deadlines and jog a delay-oriented culture
(see also Kihl v. Pfeffer 262 ). Thus, elation because the decision
sure was noticed!
But dismay quickly followed. So much effort, so much
lawyer and court time, so much client risk and expense, to
avoid simple compliance with a rule requiring that motions for
summary judgment be made no later than 120 days after the
filing of the note of issue, unless the movant can establish good
cause.
Professor Connors attributes this to “the adventuresome
nature of a healthy segment of the bar,” and provides guidance
to the bench and bar in dealing with the timing requirement
for summary judgment motions. I can’t avoid offering some
guidance of my own: just honor the deadlines, whether
statutory or court-ordered. There’s lots of other room for
adventure in, and beyond, the law.
262
94 N.Y.2d 118, 123, 722 N.E.2d 55, 58, 700 N.Y.S.2d 87, 90 (1999).
The Case for the Retroactive
Application of Crawford v. Washington
“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend. VI.
I.
INTRODUCTION
The Confrontation Clause, embedded in the Sixth
Amendment to the United States Constitution, guarantees all
criminal defendants the right to confront their accusers. 1
Described as the “greatest legal engine ever invented for the
discovery of truth,” 2 the right of confrontation is considered
essential to a fair trial. 3 Indeed, it is one of the “fundamental
1
The full text of the Amendment reads,
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
U.S. CONST. amend. VI. (emphasis added).
2
California v. Green, 399 U.S. 149, 158 (1970) (citing 5 Wigmore § 1367).
3
In Kirby v. United States, the Supreme Court referred to the Confrontation
Clause as “[o]ne of the fundamental guarantees of life and liberty,” and “a right long
deemed so essential for the due protection of life and liberty that it is guarded against
legislative and judicial action by provisions in the Constitution of the United States
and in the constitutions of most if not of all the States composing the Union.” 174 U.S.
47, 55-56 (1899).
Pointer v. Texas declared, “[t]he fact that this right appears in the Sixth
Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and
safeguards that confrontation was a fundamental right essential to a fair trial in a
criminal prosecution.” The Court continued that, “the decisions of this Court and other
courts throughout the years have constantly emphasized the necessity for crossexamination as a protection for defendants in criminal cases.” 380 U.S. 400, 404 (1965)
(footnote omitted).
Moreover, in 1807 Chief Justice Marshall wrote, “I know of no principal in
the preservation of which all are more concerned. I know none, by undermining which,
life, liberty and property, might be more endangered. It is therefore incumbent on
courts to be watchful of every inroad on a principal so truly important.” United States
v. Burr, 25 F. Cas. 193 (C.C. Va. 1807) (No. 14,694).
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guarantees of life and liberty,” 4 and “an essential and
fundamental requirement for the kind of fair trial which is this
country’s constitutional goal.” 5
In March of 2004, the Supreme Court decided Crawford
v. Washington, 6 redefining the landscape of Confrontation
Clause jurisprudence. 7 Crawford announced that no
testimonial statement may be admitted at trial against a
criminal defendant unless the defendant has the opportunity to
cross examine the declarant. 8 In short, Crawford significantly
reinterpreted the Confrontation Clause’s force and effect.
When the Supreme Court promulgates a rule, as in
Crawford, criminal defendants with pending litigation gain
access to the rule’s application on direct appeal. In order for a
criminal defendant who has exhausted all direct appellate
avenues, and whose conviction is final, to benefit from a recent
Court decision, however, he must attempt to do so on collateral
review. 9 If a rule is important enough, courts may apply it
4
Kirby, 174 U.S. at 55; accord Pointer, 380 U.S. at 410 (Stewart, J.,
concurring) (referring to the right of cross-examination as “[o]ne of the fundamental
guarantees of life and liberty,” “one of the safeguards essential to a fair trial,” and, “as
indispensable an ingredient as the ‘right to be tried in a courtroom presided over by a
judge.’”) (citations omitted).
5
Pointer, 380 U.S. at 405 (emphasis added).
6
541 U.S. 36 (2004).
7
See, e.g., Neil P. Cohen & Donald F. Paine, Crawford v. Washington:
Confrontation Revolution, 40 TENN. B.J. 22, 22 (May 2004) (“On March 8, 2004, the
U.S. Supreme Court decided Michael Crawford’s appeal from a Washington State
conviction for assault and totally revised the modern approach to the Confrontation
Clause.”) (citation omitted); Robert P. Mosteller, Crawford v. Washington:
Encouraging and Ensuring the Confrontation of Witnesses, 39 U. RICH. L. REV. 511, 511
(2005) (“In Crawford v. Washington, the Supreme Court of the United States radically
changed [the] Confrontation Clause doctrine . . . .”); Rene L. Valladares, Crawford v.
Washington: The Confrontation Clause Gets Teeth, 12 NEV. LAW. 12, 12 (Sept. 2004)
(“The Court’s decision is anticipated to cause rapid and profound changes in how
hearsay statements are used against a defendant in a criminal trial. Appellate courts
have described Crawford as being a ‘bombshell,’ and a ‘paradigm shift in confrontation
clause analysis.’”); John F. Yetter, Wrestling with Crawford v. Washington and the New
Constitutional Law of Confrontation, 78 FLA. BAR J. 26, 26 (Oct. 2004) (“The Court
erased a body of precedent that was, if not completely favorable to the prosecution, well
understood and generally accommodating to the use of hearsay evidence without the
necessity of calling the declarant as a witness.”).
8
Prior to Crawford, the Supreme Court case that articulated the governing
Confrontation Clause doctrine was Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts,
statements were routinely admitted at trial, without the defendant’s ability to crossexamine the declarant, if they were deemed reliable. Id. at 57. See Part II, infra, for a
discussion of Crawford and Roberts.
9
A defendant convicted in state court can seek collateral review using either
state or federal procedures. Usually, a state defendant will invoke state collateral
procedures before federal collateral procedures, though not required to do so. “After
state collateral procedures have been used unsuccessfully, the defendant may try
federal collateral remedies, especially federal habeas corpus.” NEIL P. COHEN &
2006]
RETROACTIVE APPLICATION OF CRAWFORD
1633
retroactively on collateral review, thus broadening the rule to
reach even those defendants with final convictions. 10
Therefore, if Crawford is deemed retroactive, a defendant with
a final conviction may seek collateral review alleging Crawford
violations, even if Crawford was decided after the conviction
became final.
The Supreme Court generally disfavors retroactivity,
and accordingly, has fashioned a standard difficult to satisfy. 11
In fact, under the Supreme Court’s current standard no “new”
rule has been applied retroactivity. 12 Crawford, however, is a
rule of paramount importance. The Constitution guarantees
the right of confrontation, yet, prior to Crawford the law ran
afoul of that Constitutional mandate. Crawford corrected a
serious flaw in the Court’s Confronation Clause jurisprudence,
and its rule is so crucial to the legitimacy of criminal
proceedings that it must be applied retroactively.
Part II of this Note discusses the significance of
Crawford’s holding by recapitulating the weaknesses of the
pre-Crawford test and describing the improvements made by
Crawford. Part III summarizes the high bar set by the
Supreme Court’s current retroactivity doctrine, specifically
Teague v. Lane 13 and its progeny. More specifically, Part III
elaborates on the contours of the second exception to Teague’s
DONALD J. HALL, CRIMINAL PROCEDURE: THE POST-INVESTIGATIVE PROCESS CASES AND
MATERIALS 805 (2d ed. 2000).
The federal habeas statute provides that a federal court “shall entertain an
application for a writ of habeas corpus in behalf of a person in custody . . . on the
ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. §2254(a) (1982); see also WAYNE R. LAFAVE ET AL., CRIMINAL
PROCEDURE 1312 (4th ed. 2004) (“[T]hrough the federal writ of habeas corpus, a state
defendant may challenge his state conviction on federal constitutional grounds in the
federal courts.”).
A defendant convicted in federal court can file a Motion to Vacate Sentence
pursuant to 28 U.S.C. § 2255 to challenge the constitutionality of his conviction. “A §
2255 Motion involves virtually the same issues and procedures as federal habeas
corpus.” COHEN & HALL, supra note 9, at 848.
10
See LAFAVE, supra note 9, at 1359-61.
11
See, e.g., id. at 1359 (“[T]he second Teague exception is quite restrictive.”);
Cohen & Hall, supra note 9, at 843 (“Recent Supreme Court decisions have greatly
reduced the chances that a habeas corpus petitioner will be able to get relief based on a
recent decision or a novel theory.”).
12
“Beginning with the rule at issue in Teague, the Court has measured at
least eleven new rules, or proposed new rules, of criminal procedure against the
criteria for the second exception and, in every case, has refused to apply the rule
retroactively.” United States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000). The
Second Circuit proceeded to list a number of cases illustrating this pattern. Id. See
also Part III.A, infra, to learn what constitutes a “new” rule.
13
489 U.S. 288 (1989) (establishing the current standard for “new” rule
retroactivity). For a further discussion of the Teague standard, see infra Part III.
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general bar to retroactivity. Part IV argues that the Crawford
rule fits within the narrowly construed second Teague
exception. It does so by drawing from the Court’s language in
Crawford, discussing pre-Teague precedent, distinguishing the
previous rules that the Supreme Court has declined to make
retroactive, and analogizing the Crawford rule to a rule that
achieved retroactivity under Teague in lower state and federal
courts.
II.
BACKGROUND
A.
Crawford’s Facts and Procedural History
On August 5, 1999, Michael Crawford and his wife
Sylvia visited a friend, Rubin Richard Kenneth Lee. 14 During
the visit Michael Crawford stabbed Lee because Crawford
thought Lee sexually assaulted Sylvia. 15 After the police
apprehended Michael Crawford, he and Sylvia each gave
recorded statements to the police in which they recounted the
events that precipitated the stabbing. 16 Their statements
differed in one very significant way; Michael said that Lee
reached for a weapon of his own before Michael stabbed him,
intimating that Michael acted in self-defense, while Sylvia said
she never saw Lee with a weapon, intimating that Michael was
the lone aggressor. 17 Michael Crawford was then prosecuted
for assault and attempted murder. 18
At trial, Michael Crawford claimed self-defense. 19 Sylvia
Crawford did not testify because Michael Crawford invoked
Washington’s marital privilege, which allowed him to prevent
his wife from testifying against him. 20 The prosecution did,
however, introduce her tape-recorded statement incriminating
Michael, despite the fact that she was not available to be cross-
14
Crawford v. Washington, 541 U.S. 36, 38 (2004).
Id.
16
Id. at 38-40.
17
Id. at 38-39 (“Sylvia generally corroborated petitioner’s story about the
events leading up to the fight, but her account of the fight itself was arguably
different – particularly with respect to whether Lee had drawn a weapon before
petitioner assaulted him . . . .”) Michael Crawford said, “I think that he pulled
somethin’ out and I grabbed for it and that’s how I got cut,” while Sylvia, when asked if
she saw anything in Lee’s hands, said “um um (no).” Id. at 39-40.
18
Id. at 40.
19
Crawford, 541 U.S. at 40 (2004).
20
Id.
15
2006]
RETROACTIVE APPLICATION OF CRAWFORD
1635
examined. 21 Her statement that Lee did not have a weapon
was fatal to Michael Crawford’s self-defense claim, 22 and he
was convicted of assault. 23
Crawford then challenged his conviction on the grounds
that the admission of Sylvia’s statement violated his Sixth
Amendment right to confrontation. 24 The Washington Supreme
Court, applying the then-controlling United States Supreme
Court precedent, Ohio v. Roberts, 25 upheld Crawford’s
conviction, concluding that Sylvia’s statement “bore guarantees
of trustworthiness.” 26 Crawford then appealed his conviction to
the United States Supreme Court. 27
B.
Hearsay
Statements, like Sylvia’s, made out-of-court and offered
as evidence to prove that which they assert are hearsay. 28 The
Federal Rules of Evidence 29 generally bar hearsay because
hearsay is thought to be unreliable. Underlying the hearsay
rule is the idea that if the declarant—the one who made the
statement—is not in court there is no way to judge the veracity
of the statement; hence, the statement is presumptively
unreliable. 30 The Federal Rules of Evidence do, however,
21
Id.
In fact, in closing argument the prosecutor referred to Sylvia’s statement
as “‘damning evidence’ that ‘completely refute[d] [Crawford’s] claim of self-defense.’”
Id. at 40-41.
23
Id. at 41.
24
Id. at 40-41.
25
Crawford,
541
U.S.
at
41
(“The
Washington
Supreme
Court . . . conclud[ed] that, although Sylvia’s statement did not fall under a firmly
rooted hearsay exception, it bore guarantees of trustworthiness . . . .”). The test from
Roberts allowed for the admission of ex-parte testimony if it bore “adequate ‘indicia of
reliability.’” Ohio v. Roberts, 448 U.S. 56, 66 (1980). To satisfy that test, evidence had
to either fall within a “firmly rooted hearsay exception” or bear “particularized
guarantees of trustworthiness.” Id.
26
Crawford, 541 U.S. at 41.
27
Id.
28
FED. R. EVID. 801(c) (“‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.”) (adopting the common law definition of hearsay). Michael
Crawford was convicted in state court, and hence, the applicable rules of evidence were
those of the State of Washington. This Note refers to the Federal Rules to exemplify
the law of evidence, and not to imply that they were used at Michael Crawford’s trial.
29
See, e.g., FED. R. EVID. 802 (“Hearsay is not admissible except as provided
by these rules or by other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.”).
30
“[T]he chief goal of the hearsay rule is to enhance the fact-finding process
by excluding certain declarations whenever the declarants cannot be subjected to cross22
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provide for exceptions. In other words, there are situations in
which statements, though hearsay, may be admitted
nonetheless. 31 These exceptions generally proceed on the
notion that some statements, though made out-of-court, are
still reliable enough to be valuable as evidence. For example,
Rule 804(b)(3) provides that hearsay statements made against
the declarant’s interest are admissible. 32 The Rules of Evidence
consider statements against interest more reliable than other
hearsay because the Rules assume that declarants do not make
untruthful statements that are self-incriminating.
Sylvia Crawford’s statement was clearly hearsay. It
was made out-of-court, and it was offered by the prosecution to
prove what it asserted—that Lee did not have a weapon. The
court, however, admitted her statement against her husband
under Washington’s version of the “statement against interest”
exception because, as the argument went, Sylvia implicated
herself as an accomplice in the assault, and therefore, she
would not have made the statement had it not been true. 33
Accordingly, the court admitted her statement at trial, even
though Michael Crawford was unable to cross-examine her. 34
C.
The Confrontation Clause
The Sixth Amendment’s Confrontation Clause provides
criminal defendants with an extra layer of protection against
hearsay statements. By guaranteeing the defendant the right
to be confronted with the witnesses against him, the
Confrontation Clause aims to insure that certain statements,
notwithstanding the rules of hearsay, be excluded unless the
declarant is cross-examined. Thus, even if a statement fits
examination. The rule achieves this goal by permitting the opposing party to object to
the use of out-of-court statements that are offered to prove the truth of the matter
asserted. Since the use of hearsay can deprive the opponent of an opportunity to
challenge the credibility of the hearsay declarant, the rule proceeds on the assumption
that cross-examination is vital to assuring the reliability of evidence.” Miguel A.
Mendez, Crawford v. Washington: A Critique, 57 STAN. L. REV. 569, 574 (2004).
31
FED. R. EVID. 801(d) (listing statements not included in the definition of
hearsay, and thus, not barred by Rule 802), 803 (listing hearsay exceptions that apply
even if the declarant is available), 804 (listing hearsay exceptions that apply only if the
declarant is unavailable), 807 (providing for the residual exception).
32
FED. R. EVID. 804(b)(3).
33
Crawford, 541 U.S. at 40 (“Noting that Sylvia had admitted she led
petitioner to Lee’s apartment and thus had facilitated the assault, the State invoked
the hearsay exception for statements against penal interest.”) (citing WASH. R. EVID.
804(b)(3) (2003)).
34
Id. at 40-41.
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within a hearsay exception it will be inadmissible if it runs
afoul of the Confrontation Clause. 35
Therefore, insofar as hearsay declarants constitute
“witnesses against” a criminal defendant for the purposes of
the Confrontation Clause, the Constitution bars admission of
the statements. 36 Not all hearsay admitted against a criminal
defendant implicates the Confrontation Clause, however, and
prior to Crawford the Supreme Court struggled to define
exactly what kind of hearsay would trigger the right of
confrontation. 37
The Supreme Court first attempted to formulate a
workable Confrontation Clause doctrine in Ohio v. Roberts. 38
Roberts articulated a two-part test for the admission of hearsay
against the accused, informed by the Court’s pragmatic
balancing of society’s interests in law enforcement and finality
against an individual’s constitutional right to confrontation. 39
Hearsay was admissible under Roberts if, first, the declarant
was unavailable, and second, the hearsay statement bore
“indicia of reliability.” 40 If the statement qualified under a
“firmly rooted hearsay exception” it was presumptively
reliable. 41 Otherwise, a statement could still be admissible if it
bore “particularized guarantees of trustworthiness.” 42 In other
words, under Roberts, if the declarant was unavailable, and the
35
See, e.g., GEORGE FISHER, FEDERAL RULES OF EVIDENCE STATUTORY AND
CASE SUPPLEMENT 394 (2004-05) (“[T]he Constitution is a higher law than the Federal
Rules of Evidence, but not necessarily a stricter law. Evidence permitted by the rules
of evidence but forbidden by the Confrontation Clause must stay out. Evidence
permitted by the Confrontation Clause but excluded by the rules of evidence also must
stay out.”).
36
U.S. CONST. amend. VI.
37
See, e.g., FISHER, supra note 35, at 393-94.
38
448 U.S. 56 (1980). Prior to Roberts, “the Court issued a number of ad hoc
judgments to resolve particular controversies, but made little attempt to systematize
the Confrontation Clause’s impact on the admission of hearsay.” FISHER, supra note
34, at 394.
39
In Roberts, the Court recognized that:
[C]ompeting interests, if “closely examined” may warrant dispensing with
confrontation at trial. ‘[G]eneral rules of law of this kind, however beneficent
in their operation and valuable to the accused, must occasionally give way to
considerations of public policy and the necessities of the case.’ Significantly,
every jurisdiction has a strong interest in effective law enforcement, and in
the development and precise formulation of the rules of evidence applicable
in criminal proceedings.
Roberts, 448 U.S. at 64 (citations omitted).
40
Id. at 66.
41
Id.
42
Id.
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statement was deemed reliable, the hearsay was admissible
notwithstanding the absence of confrontation. 43 Accordingly,
the Washington Supreme Court rejected Michael Crawford’s
Confrontation Clause challenge because the court concluded
that, under Roberts, Sylvia’s statement bore “guarantees of
trustworthiness.” 44
D.
Crawford’s Holding
On March 8, 2004, however, a unanimous Supreme
Court reversed Crawford’s conviction on the grounds that the
use of Sylvia Crawford’s statement violated Michael Crawford’s
Sixth Amendment right to confront his accusers. 45 Justice
Scalia’s majority opinion, joined by six justices, 46 overruled
Roberts, 47 and formulated a new standard to govern the
admissibility of hearsay statements against a criminal
defendant.
Under Crawford, the reliability of the statement is
irrelevant; the nature of the statement is all that matters. 48
Justice Scalia looked at the text of the Amendment, and
determined that the Confrontation Clause concerns only
statements made by declarants who bear witness against the
accused. Thus, not all hearsay implicates the Constitution,
only hearsay statements that are testimonial in nature do. 49
Furthermore, Justice Scalia noted that the Confrontation
43
Id.
Crawford v. Washington, 541 U.S. 36, 41 (2004).
45
Id.
46
Justices Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer joined
Scalia’s majority opinion. Id. at 37. Chief Justice Rehnquist and Justice O’Connor
concurred in the reversal, but argued that the result did not require overruling Roberts.
Id. at 69.
47
Some lower courts have continued to apply Roberts to non-testimonial
statements. See, e.g., Horton v. Allen, 370 F.3d 75, 83-84 (1st Cir. 2004) (noting that
unless statements are testimonial “Crawford is inapplicable and Roberts continues to
apply”); State v. Rivera, 844 A.2d 191, 200-01 (Conn. 2004) (“nontestimonial hearsay
statements may still be admitted as evidence against an accused in a criminal trial if it
satisfies both prongs of the Roberts test, irrespective of whether the defendant had a
prior opportunity to cross examine the declarant.”). The general consensus, however, is
that Roberts no longer has any precedential value. See FISHER, supra note 35, at 431.
48
Crawford, 541 U.S. at 61 (“Admitting statements deemed reliable by a
judge is fundamentally at odds with the right of confrontation.”).
49
Id. at 51 (“[N]ot all hearsay implicates the Sixth Amendment’s core
concerns. . . . It applies to ‘witnesses’ against the accused—in other words, those who
‘bear testimony.’”) (citing 1 N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828)).
44
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Clause does not guarantee reliable evidence; it guarantees a
process by which the reliability of evidence is to be judged. 50
Accordingly, the Crawford Court criticized the Roberts
test for being both too broad and too narrow. Too broad,
argued the Court, because it subjected non-testimonial
statements to Constitutional scrutiny, and too narrow because
it routinely admitted testimonial statements upon a mere
Roberts’s
showing of reliability, absent confrontation. 51
“malleable standard,” according to the Court, “often fail[ed] to
protect against paradigmatic confrontation violations.” 52
Crawford concluded, therefore, that “[w]here testimonial
statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.” 53
Although Justice Scalia and the Crawford Court opted
not to define testimonial, 54 clearly, according to the Court,
Sylvia Crawford’s statement constituted testimony, and
therefore, was barred by the Confrontation Clause. 55 By telling
the police that Lee did not have a weapon, and hence did not
50
Id. at 61 (“The Clause thus reflects a judgment, not only about the
desirability of reliable evidence (a point on which there could be little dissent), but
about how reliability can best be determined.”).
51
Id. at 60 (“First, [the Roberts test] is too broad: It applies the same mode of
analysis whether or not the hearsay consists of ex parte testimony. This often results
in close constitutional scrutiny in cases that are far removed from the core concerns of
the Clause. At the same time, however, the test is too narrow: It admits statements
that do consist of ex parte testimony upon a mere finding of reliability.”).
52
Id.
53
Crawford, 541 U.S. at 68-69 (2004) (emphasis added).
54
Id. at 68 (“We leave for another day any effort to spell out a comprehensive
definition of ‘testimonial.’”). The Court did, however, offer the following three possible
standards, but opts not to chose among them:
1) “‘[E]x parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially’”;
2) “‘[E]xtrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions’”;
and
3) “‘[S]tatements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available
for use at a later trial.”
Id. at 51-52 (citations omitted).
55
Id. at 68 (“Whatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations. These are the modern practices with closest kinship to the abuses
at which the Confrontation Clause was directed.”).
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pose a threat to Michael Crawford, Sylvia Crawford bore
witness, or testified, against her husband. Because Sylvia
Crawford did not appear at trial, Michael Crawford could not
cross-examine her regarding her testimony. Thus, admitting
Sylvia’s statement as incriminating evidence against Michael
Crawford constituted a paradigmatic Confrontation Clause
violation.
In summary, with Crawford, “the U.S. Supreme Court
radically transformed its doctrine governing the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution.” 56
One commentator described the case as “a very positive
development, restoring to its central position one of the basic
protections of the common law system of criminal justice.” 57
Crawford, however, left many questions unanswered. 58
One such question is whether or not Crawford’s radical
transformation 59 of Confrontation Clause interpretation should
be applied retroactively to cases on collateral review. 60 In other
words, will a defendant with a final conviction based on
hearsay evidence admissible under Roberts yet inadmissible
under Crawford be able to attack his conviction on collateral
review alleging a Crawford violation? Although the Supreme
Court has made retroactivity difficult to achieve, 61 certainly a
rule that drastically reinterprets 62 a Constitutional guarantee
as important 63 as the Confrontation Clause should suffice.
III.
THE TEAGUE FRAMEWORK FOR RETROACTIVITY ANALYSIS
To resolve the question of retroactivity, one must
analyze Crawford’s rule under the framework provided by
Teague v. Lane. 64 Decided in 1989, Teague articulated the
56
Richard D. Friedman, Adjusting to Crawford: High Court Decision Restores
Confrontation Clause Protection, 19 CRIM. JUST. 5 (Summer 2004).
57
Id.
58
Id.; see Mosteller, supra note 7, at 623 (“Crawford leaves many important
issues undecided regarding the scope of its application.”).
59
Mosteller, supra note 7, at 511.
60
Richard Alan Ginkowski, Introduction to Friedman, supra note 56, at 5
(“Also unclear is whether the holding may be applied retroactively.”).
61
See supra notes 11-12 and accompanying text.
62
See supra note 7.
63
See supra notes 2-5.
64
489 U.S. 288 (1989). The Teague standard only governs if direct appeal
has been completed. New rules apply retroactively to all criminal cases still pending
on direct appeal. Schriro v. Summerlin, 542 U.S. 348, 358 (2004); Griffith v. Kentucky,
479 U.S. 314, 328 (1987).
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current governing standard by which retroactivity is to be
determined. 65
A.
“New” or “Old”?
The threshold question under Teague is whether the
rule at issue is “new” or “old.” 66 Essentially, “a case announces
a new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government,” 67 or “if the
result was not dictated by precedent existing at the time the
defendant’s conviction became final.” 68 In contrast, a rule is
“old” for retroactivity purposes if it is a mere application of
In Butler v. McKellar the Court
existing precedent. 69
expounded further on the Teague definition of a “new rule,”
concluding that a rule is “new” if reasonable minds could have
differed about the result of the decision before it was
rendered. 70 The great weight of the authority suggests that
Crawford announced a “new” rule. 71 Accordingly, this Note
treats Crawford’s rule as “new” for the purposes of its
analysis. 72 “New” rules trigger Teague scrutiny.
65
LAFAVE, supra note 9, at 1355-61.
Teague, 489 U.S. at 301; see also People v. Eastman, 648 N.E.2d 459, 464
(N.Y. 1995) (“The threshold issue in determining whether to apply a constitutional rule
retroactively is characterization of the rule as “new” or “old.”).
67
Teague, 489 U.S. at 301 (citing Rock v. Arkansas, 483 U.S. 44, 62 (1987)).
68
Id. (citing Truesdale v. Aiken, 480 U.S. 527, 528-29 (1987) (Powell, J.,
dissenting)).
69
Id.
70
494 U.S. 407, 417 (1990).
71
Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005) (“Teague thus prohibits
Dorchy from availing himself of the new rule articulated in Crawford.”); Bintz v.
Bertrand, 403 F.3d 859, 866-67 (7th Cir. 2005) (“It seems clear that Crawford was a
clean break from the line of precedent established by Roberts. Crawford considered and
rejected the continuing application of Roberts. . . . Crawford was thus a new rule for
purposes of Teague.”); Murillo v. Frank, 402 F.3d 786, 790 (7th Cir. 2005) (“It is obvious
to us . . . that Crawford establishes a new rule.”); Bockting v. Bayer, 399 F.3d 1010,
1015-16 (9th Cir. 2005) (“On balance, an analysis of the historical application of the
Confrontation Clause cases leads to the conclusion that Crawford announces a new
rule . . . .”); Brown v. Uphoff, 381 F.3d 1219, 1226 (10th Cir. 2004) (“Thus, Roberts and
its progeny did not dictate the result in Crawford and we conclude that it announces a
new rule of constitutional law.”); Mungo v. Duncan, 393 F.3d 327, 335 (2d Cir. 2004)
(assuming for the purposes of Teague analysis that Crawford announced a new rule);
see also Evans v. Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004) (applying, in dictum,
Teague’s “new rule” framework to the Crawford rule).
72
Some have argued that Crawford announced an “old” rule. For interesting
arguments, see Bockting v. Bayer, 399 F.3d 1010, 1023 (9th Cir. 2005) (Noonan, J.,
concurring) (“Crawford, therefore, does not announce a new rule. Retroactivity is not
an issue.”); Murillo v. Frank, 316 F. Supp. 2d 744, 749-50 n.4 (E.D. Wisc. 2004) (“The
question is close because although Crawford rejected the application of Roberts to
66
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Teague’s “New” Rule Framework
Essentially, Teague established a presumptive bar to
the retroactive application of “new” rules on collateral review,
subject to two exceptions. The first exception allows for
retroactivity if the conduct for which the defendant was
convicted has become constitutionally protected, and the
second, if the “new” rule is a watershed rule of criminal
procedure, implicit in the concept of ordered liberty. 73 The first
exception certainly does not apply to Crawford since
Crawford’s rule does not concern conduct. Therefore, if deemed
a “new” rule, Crawford’s retroactivity hinges on whether it fits
within the contours of the second exception. In other words, to
warrant retroactivity Crawford’s rule must be deemed a
watershed rule of criminal procedure implicit in the concept of
ordered liberty.
C.
Teague’s Second Exception as Interpreted by Subsequent
Cases
Teague’s second exception is decidedly difficult to
satisfy.
In fact, the exception has grown “exceedingly
narrow,” 74 including only a “small core of rules requiring
observance of those procedures that . . . are implicit in the
concept of ordered liberty.” 75 Indeed, “it is not enough that a
new rule is aimed at improving the accuracy of trial, or even
testimonial statements, the Court had never explicitly applied Roberts to such
statements.’ Thus, it can be argued that Crawford did not announce a new rule at
all.”) (citation omitted); Richardson v. Newland, 342 F. Supp. 2d 900, 924 (E.D. Cal.
2004) (“Crawford did not announce a new rule at all but rather is entirely faithful to
the Supreme Court’s prior decisions in this area”).
If a rule is deemed “old” it is applied retroactively to all cases on collateral
review. See Yates v. Aiken, 484 U.S. 211, 216 n.3 (1988) (“[W]hen a decision of this
Court merely has applied settled precedents to new and different factual situations, no
real question has arisen as to whether the later decision should apply
retrospectively.”). Accordingly, only “new” rules are subject to analysis under the
Teague exceptions.
73
The standard adopted by Teague originated with Justice Harlan. Justice
Harlan, however, advocated a more lenient second exception. Under Justice Harlan’s
standard a new rule would be retroactive if the previous rule created “an impermissibly
large risk that the innocent will be convicted.” Desist v. United States, 394 U.S. 244,
262 (1969). Thus, according to Justice Harlan “all ‘new’ constitutional rules which
significantly improve the pre-existing fact-finding procedures are to be retroactively
applied on habeas.” Id. Teague, however, narrowed the second exception, requiring a
rule to be a watershed rule of criminal procedure.
74
United States v. Mandanici, 205 F.3d 519, 528 (2d Cir. 2000).
75
Beard v. Banks, 542 U.S. 406, 417 (2004) (quoting Graham v. Collins, 506
U.S. 461, 478 (1993)).
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that it promotes the objectives of fairness and accuracy.” 76 But
the adoption of a “new” rule must be a “ground breaking
occurrence,” 77 and one that “alter[s] our understanding of the
bedrock procedural elements essential to the fairness of a
proceeding.” 78 Moreover, the rule must signal “a sweeping
change that applies to a large swathe of cases rather than a
narrow right that applies only to a limited class of cases.” 79
Notwithstanding the narrowness of Teague’s second exception,
however, it must exist for a reason. Therefore, certain rules,
like Crawford, must be capable of fitting within its narrow
contours. 80
Since Teague was decided in 1989 the Supreme Court
has considered twelve “new” rules for retroactive application
and has found them all insufficient. 81 The Court recently noted
that “it should come as no surprise that [it] ha[s] yet to find a
new rule that falls under the second Teague exception.” 82
Additionally, the Supreme Court has declared several
times that to achieve “watershed” status a new rule must
compare, in terms of significance, with the rule espoused in
Gideon v. Wainwright, 83 which confered the right of counsel on
indigent defendants. 84 Thus, when the Court considers a “new”
rule as a candidate for retroactivity, the Court compares the
importance of the new rule to that of Gideon’s rule. 85 No “new”
rule has yet prevailed under this analysis. 86 None considered,
76
Mandanici, 205 F.3d at 528 (citation and internal quotations omitted).
Caspari v. Bohlen, 510 U.S. 383, 396 (1994).
78
Sawyer v. Smith, 497 U.S. 227, 241-42 (1990) (quoting Mackey v. United
States, 401 U.S. 667, 693 (1971)).
79
Mandanici, 205 F.3d at 528 (citation and internal quotations omitted).
80
Bockting v. Bayer, 399 F.3d 1010, 1016 (9th Cir. 2005) (“[T]he bar is not
absolute and the Crawford rule meets the Court’s criteria.”).
81
See Mandanici, 205 F.3d at 529 (“[Since 1989, b]eginning with the rule at
issue in Teague, the Court has measured at least eleven new rules, or proposed new
rules, of criminal procedure against the criteria for the second Teague exception and, in
every case, has refused to apply the rule at issue retroactively on habeas review.”).
Moreover, since Mandanici the Supreme Court has extended that streak by two, failing
to apply the second Teague exception in two more cases. Schriro v. Summerlin, 542
U.S. 348, 355-58; Beard v. Banks, 542 U.S. 406, 419-20 (2004).
82
Beard, 542 U.S. at 417.
83
372 U.S. 335 (1963).
84
Saffle v. Parks, 494 U.S. 484, 495 (1990); see Beard, 542 U.S. at 417.
85
See Gray v. Netherland, 518 U.S. 152, 170 (1996); Saffle, 494 U.S. at 495
(stating that a rule must be of the “primacy and centrality of the rule adopted in
Gideon or other rules which may be thought to be within the exception”); Mandanici,
205 F.3d at 528-29 (citing O’Dell v. Netherland, 521 U.S. 151, 167 (1997)).
86
See supra note 12.
77
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Crawford. 87
IV.
carried
the
constitutional
[Vol. 71:4
significance
of
CRAWFORD IS A WATERSHED RULE OF CRIMINAL
PROCEDURE ESSENTIAL TO FUNDAMENTAL FAIRNESS,
AND THUS, SHOULD BE MADE RETROACTIVE PURSUANT
TO TEAGUE’S SECOND EXCEPTION
Since the Supreme Court decided Teague it has not
addressed the retroactivity of a “new” rule concerning the
Confrontation Clause. Authority suggests, however, that
Crawford satisfies Teague’s strictures. Although the Supreme
Court, under the Teague standard, has not made a “new” rule
retroactive, every rule considered lacked the significance of
Crawford’s rule. 88 Indeed, Crawford is more akin to the Gideon
rule 89 than any rule that has sought retroactivity before the
Court.
Moreover, in both Roberts v. Russell 90 and Barber v.
Page 91 the Supreme Court gave retroactive effect to a rule
implicating the Confrontation Clause.
Although these
decisions predate Teague, they demonstrate that the public
interests that weigh against retroactivity must yield when they
conflict with the right of confrontation. 92
Additionally, the Supreme Court’s holding in Cruz v.
New York 93 also implicated the Confrontation Clause, 94 and was
made retroactive by both the New York Court of Appeals 95 and
the U.S. Court of Appeals for the Second Circuit. 96 Both courts
conducted retroactivity analysis under the Teague framework. 97
87
See infra Part IV.A (arguing that Crawford is more significant that the
other rules considered for retroactivity under Teague); see also supra note 12.
88
See supra note 89 and accompanying text.
89
Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963) (conferring the right of
counsel on indigent defendants).
90
392 U.S. 293, 294 (1968) (giving retroactive effect to Bruton v. United
States, 391 U.S. 123 (1968), which prohibited the admission, at a joint trial, of a
codefendant’s inculpatory extrajudicial confession).
91
390 U.S. 719 (1968).
92
Id. at 294-95.
93
481 U.S. 186, 193 (1987) (barring admission of an interlocking confession of
a non-testifying defendant).
94
Id.
95
People v. Eastman, 648 N.E.2d 459, 460 (N.Y. 1995).
96
Graham v. Hoke, 946 F.2d 982, 993 (2d Cir. 1991).
97
See id.; Eastman, 648 N.E.2d at 464-65.
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Accordingly, if ever there could be a rule capable of
satisfying Teague’s second exception, surely Crawford, giving
new life to an essential and fundamental constitutional
guarantee, 98 should be it.
A.
Crawford is More Significant Than All the Previous
“New” Rules That the Supreme Court has Declined to
Apply Retroactively
The Supreme Court has contemplated the retroactive
application of a “new” rule twelve 99 times, and each time
determined that the rule at issue failed to satisfy the
requirements of Teague’s second exception. 100 None of those
rules, however, implicated the Confrontation Clause. The
Crawford rule, according to the Supreme Court, corrects an
“unpardonable [constitutional] vice.” 101 Crawford is exactly the
kind of rule contemplated by the second Teague exception.
Indeed, Crawford has “the primacy and centrality of the rule
adopted in Gideon,” 102 and must succeed where the others have
failed.
Of the twelve “new” rules that have failed under
Teague, nine concern sentencing, and hence, bear only
98
See discussion supra Parts I, II.
Teague itself, while formulating the retroactivity standard, considered the
retroactivity of the rule announced in Batson v. Kentucky, 476 U.S. 79 (1986). In
Batson the Court held that if a defendant can establish a prima facie case that the
prosecutor used peremptory challenges to eliminate members of the jury venire that
were of the defendant’s race, the burden shifts to the prosecutor to rebut the inference
of discrimination. The prosecutor may rebut the inference of discrimination by
showing a neutral reason for challenging the jurors, but if he cannot, the peremptory
challenges constitute an Equal Protection violation. Id. at 96-97.
The petitioner in Teague sought the benefit of Batson “even though his
conviction became final before Batson was decided.” Teague v. Lane, 489 U.S. 288, 294
(1989). Before Teague, however, the Supreme Court in Allen v. Hardy, 478 U.S. 255
(1986), applying the pre-Teague retroactivity standard of Linkletter v. Walker, 381 U.S.
618, 636 (1965), found that Batson was not retroactive. Teague found Allen v. Hardy
“dispositive,” and hence, denied the petitioner the benefit of Batson. Teague, 489 U.S.
at 296.
Accordingly, Teague did not apply the standard it enunciated to the Batson
rule, it deferred to Allen v. Hardy’s evaluation of Batson under the then-governing
Linkletter standard. Therefore, this Note does not address Teague’s holding with
respect to the retroactivity of Batson.
100
See supra note 12; see also Schriro v. Summerlin, 542 U.S. 348, 355-58
(2004) (declining to make a new rule retroactive); Beard v. Banks, 542 U.S. 406, 419-20
(2004) (same).
101
Crawford v. Washington, 541 U.S. 36, 63 (2004).
102
Saffle v. Parks, 494 U.S. 484, 495 (1990).
99
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tangentially on the accuracy of the trial. 103 These sentencing
rules are fundamentally different from, and less important to
the truth-finding function than the Crawford rule. Most
significantly, sentencing rules affect only the portion of the
trial subsequent to the verdict. While the severity of a criminal
defendant’s sentence is substantially important to the criminal
justice system, Teague requires “new” rules to impact guilt or
103
First, in Schriro, the Supreme Court declined to give retroactive effect to
the rule announce in Ring v. Arizona, 536 U.S. 584 (2002). Schriro, 542 U.S. at 355-58.
Ring declared that the existence of an aggravating factor which could make a
defendant eligible for the death sentence must be proved to a jury rather than a trial
judge. 536 U.S. at 609. The defendant in Schriro was sentenced to death under the
previous rule, which allowed the trial judge, rather than the jury, to determine the
presence of the aggravating factor. 542 U.S. at 350. The defendant, Summerlin, sought
the benefit of the Ring rule on habeas review, and his request was denied by a five to
four decision of the Supreme Court. Id. at 350, 358.
The next two cases, Beard v. Banks, 542 U.S. 406 (2004), and Graham v.
Collins, 506 U.S. 461 (1993), the Supreme Court contemplated the retroactivity of
“new” rules concerning the ability of the jury to consider mitigating factors in capital
sentencing proceedings. In Beard the Supreme Court examined the “new” rule of Mills
v. Maryland, 486 U.S. 367 (1988) which declared invalid capital sentencing schemes
requiring juries to disregard mitigating factors not found unanimously. Id. at 375.
Graham dealt with a proposed rule declaring as unconstitutional jury instructions
which disallowed sentencing juries to consider mitigating evidence. 506 U.S. at 464.
Both rules fell short of the Teague standard. Beard, 542 U.S. at 419-20; Graham, 506
U.S. at 463.
Fourth, in O’Dell v. Netherland, 521 U.S. 151 (1997), the Court held that
the rule of Simmons v. South Carolina, 512 U.S. 154 (1994), which entitles a capital
defendant to inform his sentencing jury that he is parole-ineligible if the prosecution
claims that he is a future danger, id. at 161-62, failed under Teague analysis. O’Dell,
521 U.S. at 167.
Fifth, the rule announced in Espinosa v. Florida, 505 U.S. 1079 (1992) (per
curiam), also failed under Teague to achieve retroactive application as a “new” rule.
Mandanici, 205 F.3d at 529. Espinosa declared “that in certain states where a
sentencing judge is required to give deference to a jury’s advisory sentencing
recommendation with respect to the death penalty, neither the jury nor the judge is
permitted to consider invalid aggravating circumstances.” Id.
Sixth, Gray v. Netherland, 518 U.S. 152 (1996), declined to make
retroactive a rule that the state’s failure to give adequate notice of some of the evidence
it intended to use in the petitioners’ capital sentence proceeding violated due process.
Id. at 170.
Seventh, Caspari v. Bohlen, 510 U.S. 383, 386, 396 (1994), declined to
make retroactive a rule declaring that “twice subject[ing] a criminal defendant to a
noncapital sentence enhancement proceeding” violated the Double Jeopardy Clause.
Eighth, Saffle, declined to apply retroactively a rule that the trial court’s
instruction in the petitioner’s capital sentencing proceeding, “telling the jury to avoid
any influence of sympathy, violates the Eighth Amendment.” 494 U.S. at 486.
Ninth, Sawyer v. Smith, 497 U.S. 227 (1990), subjected the rule of Caldwell
v. Mississippi, 472 U.S. 320 (1985) to Teague analysis, and like the others, the rule
failed to satisfy Teague’s strict requirements. Sawyer, 497 U.S. at 241-45. Caldwell’s
rule “prohibits the imposition of a death sentence by a sentencer that has been led to
the false belief that the responsibility for determining the appropriateness of the
defendant’s capital sentence lies elsewhere.” Id. at 233 (citing Caldwell, 472 U.S. at
328-29).
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innocence to warrant retroactivity. 104 Therefore, even a “new”
rule of sentencing impacting the imposition of the death
penalty—the harshest sentence available—will likely fail
under Teague, because sentencing rules simply do not concern
the determination of guilt or innocence. 105
In contrast, the Crawford rule interprets the right of
confrontation, which is necessary to ferret out truth from an
accuser’s testimony. Crawford bears directly on the kind of
information that reaches the jury, and it goes to the very heart
of the truth-finding process. A rule that implicates the
accuracy of the truth-finding process certainly has the likely
potential to impact guilt or innocence, as required by Teague.
Accordingly, Crawford comports with Teague’s vision of a
retroactive rule, while rules concerning sentencing do not.
Of the “new” rule retroactivity candidates that did not
concern sentencing, none were as important as Crawford.
First, in Goeke v. Branch the Supreme Court refused to apply
retroactively a rule that prohibited state appellate courts from
dismissing the appeal of a recaptured fugitive. 106 The Court
aptly observed that since “due process does not require a State
to provide appellate process at all, a former fugitive’s right to
appeal cannot be said to be so central to an accurate
determination of innocence or guilt as to fall within [the
second] exception to the Teague bar.” 107 On the contrary, the
Constitution guarantees the right of confrontation, and the
Supreme Court has incorporated it through the due process
clause of the Fourteenth Amendment to apply to the states. 108
Therefore, since Crawford implicates a fundamental
constitutional guarantee, it deserves retroactivity more than a
rule concerning a non-constitutional right to appeal.
104
Teague v. Lane, 489 U.S. 288, 313 (1989) (“Because we operate from the
premise that such procedures would be so central to an accurate determination of
innocence or guilt, we believe it unlikely that many such components of basic due
process have yet to emerge.”).
105
Id. Since the petitioner in Teague was not under a sentence of death the
plurality limited its holding to the non-capital context. The plurality, however,
explicitly confirmed that the finality concerns that drove its analysis applied also in the
capital context. Id. at 314 n.2.
106
Goeke v. Branch, 514 U.S. 115, 120-21 (1995) (per curiam).
107
Id. at 120 (internal citations and quotation marks omitted).
108
Pointer v. Texas, 380 U.S. 400, 403 (1965) (“We hold today that the Sixth
Amendment’s right of an accused to confront the witnesses against him is likewise a
fundamental right and is made obligatory on the States by the Fourteenth
Amendment.”).
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Gilmore v. Taylor 109 considered the retroactive
application of the rule announced in Falconer v. Lane, 110 and
the Court again decided that the “new” rule failed to satisfy
Teague’s strictures. 111 Falconer declared that “the failure to
instruct a jury that it could not return a murder conviction if it
found that the defendant possessed a mitigating mental state
violates due process.” 112 A jury considers a mitigating mental
state, however, only after it finds the facts constituting the
underlying offense.
Thus, the Falconer rule bears on
culpability, not the accuracy of the facts. The Crawford rule,
on the other hand, concerns the accuracy of the underlying
facts.
Crawford provides the jury greater access to
information, which significantly increases the likelihood that
the jury will arrive at an accurate decision.
Butler v. McKellar 113 declined to make retroactive the
rule announced in Arizona v. Roberson, 114 which had declared
that “the Fifth Amendment bars police-initiated interrogation
following a suspect’s request for counsel in the context of a
separate investigation.” 115 Butler concluded that “[b]ecause a
violation of Roberson’s added restrictions on police
investigatory procedures would not seriously diminish the
likelihood of obtaining an accurate determination – indeed, it
may increase that likelihood – . . . Roberson did not establish
any principle that would come within the second exception.” 116
Apparently, the Butler majority operated from the premise that
a confession obtained in violation of the Fifth Amendment may
be truthful nonetheless, and hence, its admission at trial may
in fact conduce to a more accurate fact-finding process. 117 To be
sure, the Fifth Amendment’s right not to self-incriminate
enjoys comparable constitutional stature to the right to
confront one’s accusers; however, the former aims to preserve
the individual suspect’s dignity, while the latter aims to insure
109
508 U.S. 333 (1993).
905 F.2d 1129 (7th Cir. 1990).
111
Gilmore, 508 U.S. at 345 (holding that the Falconer rule does not “fall[]
into that small core of rules requiring observance of those procedures that . . . are
implicit in the concept of ordered liberty”) (internal citations and quotation marks
omitted).
112
United States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000) (summarizing
the Falconer rule).
113
494 U.S. 407 (1990).
114
486 U.S. 675 (1988).
115
Butler, 494 U.S. at 411 (citing Roberson, 486 U.S. at 682).
116
Id. at 416.
117
Id.
110
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the accuracy of the trial. Accordingly, since Teague insists that
a retroactive rule impact the determination of innocence or
guilt, 118 Crawford is a better candidate for retroactivity than
Roberson.
The Supreme Court has invoked Gideon v. Wainwright,
which conferred the right to counsel upon indigent
defendants, 119 to exemplify the type of case capable of satisfying
Teague’s second exception. 120 Crawford is of Gideon’s ilk.
Gideon declared that a fair trial “cannot be realized if the poor
man charged with a crime has to face his accusers without a
lawyer to assist him.” 121 One might naturally doubt the utility
of a lawyer, however, without the right to face one’s accusers.
Skilled lawyers and pro se litigants alike would be unable to
mount a defense without the ability to confront adverse
witnesses.
For example, Michael Crawford was represented by
counsel, yet his lawyer was not allowed to cross-examine
Sylvia. Had he been extended this “privilege,” he may have
inquired as to her vantage point during the incident. In turn
she may have replied, truthfully in fact, that her eyes were
closed. 122 Indeed, a lawyer is often essential to the fairness of a
proceeding, but before a lawyer can be effective the proceeding
must comport with Crawford, allowing the defendant to
confront testimonial statements. In other words, the right of
confrontation preserves and gives content to the right to
counsel. Accordingly, since the Court uses Gideon as its
retroactivity benchmark, and since Crawford is just as, if not
more, important to fairness and trial accuracy, Crawford must
be made retroactive. 123
118
See supra note 104 and accompanying text.
372 U.S. 335, 344 (1963).
120
Saffle v. Parks, 494 U.S. 484, 495 (1990) (“Although the precise contours of
[the second Teague] exception may be difficult to discern, [the Court] ha[s] usually cited
Gideon v. Wainwright, holding that a defendant has the right to be represented by
counsel . . . to illustrate the type of rule coming within the exception.” (citation
omitted)).
121
372 U.S. at 344 (emphasis added).
122
State v. Crawford, No. 25307-1-II, 2001 WL 850119, at *5 (Wash. App. Div.
2, July 30, 2001), rev’d, 54 P.3d 656 (Wash. 2002), rev’d sub nom., Crawford, 541 U.S.
36 (“Sylvia stated that she shut her eyes during the stabbing. Cross-examination could
show that she did not see Lee attack Michael because of this. We conclude that crossexamination could reveal that she lacked knowledge of what happened.”).
123
See Bockting v. Bayer, 399 F.3d 1010, 1019 (9th Cir. 2005) (“Recognizing
that bedrock procedural rules are very few in number, it is no leap to conclude that the
right of cross-examination as an adjunct to the constitutional right of confrontation
joins the very limited company of Gideon.”).
119
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To be sure, Teague and its progeny make it quite
difficult for a “new” rule to achieve retroactive effect. The
twelve “new” rules that the Supreme Court has declined to
make retroactive exemplify the narrowness of the Teague
standard. Nevertheless, no rule as significant as Crawford has
yet endured Teague’s scrutiny. The second Teague exception
exists so that rules of the magnitude of Gideon and Crawford
can achieve retroactive effect, while rules like the ones which
hitherto have failed will not upset society’s countervailing
interests. The second Teague exception is narrow, but not
closed, and Crawford satisfies its requirements. 124
B.
The Supreme Court’s Language in Crawford Indicates
That the Confrontation Clause is a Bedrock
Constitutional Guarantee Essential to a Fair Trial
The Supreme Court’s language in the Crawford opinion
suggests that its rule is important enough to prevail under a
Teague retroactivity analysis. 125 In Crawford, the Supreme
Court expressly stated its view that the right of confrontation
is a “bedrock procedural guarantee,” 126 and that Roberts
constituted an egregious constitutional flaw. Although none of
the Court’s language speaks specifically to the retroactivity
issue, one can reasonably infer from the Court’s language that
Crawford warrants retroactivity.
Justice Scalia consulted history, and determined that
“the principal evil at which the Confrontation Clause was
directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence
against the accused.” 127 Moreover, the Court declared that the
124
See, e.g., Valladares, supra note 7, at 12, 16 (“There is a strong argument
that Crawford is one of those very rare new rules that is essential to our concepts of
fundamental fairness.”).
125
See Bockting, 399 F.3d at 1016 (“That the Crawford requirement is
fundamental to our legal regime is beyond dispute. Justice Scalia’s eloquent recitation
of the history, purpose, and place of the Confrontation Clause and cross-examination
answers this question.”); People v. Watson, No. 7715/90, 2004 N.Y. Misc. LEXIS 2133,
at *8 (N.Y. Sup. Ct. Nov. 8, 2004) (“The language used in the Crawford decision itself
also lends support to the view that its declaration of the rule prohibiting the admission
of testimonial statements at trial unless they have been subject to cross-examination is
watershed.”).
126
Crawford v. Washington, 541 U.S. 36, 42 (2004).
127
Id. at 50 (emphasis added). In particular, Justice Scalia recounted the
1603 treason trial of Sir Walter Raleigh. Raleigh’s alleged accomplice, Lord Cobham,
implicated Raleigh in letters. Cobham did not testify, but his letters were read at
Raleigh’s trial. According to Justice Scalia,
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right of confrontation is the Sixth Amendment’s “primary
object,” 128 and deemed the right a “categorical constitutional
guarantee[].” 129
Additionally, the Roberts framework, according to
Crawford, was “fundamentally at odds” with the Confrontation
Clause 130 and hence, “[did] violence to [its] design.” 131 While
Roberts admitted hearsay based on notions of reliability, 132
Crawford declared that the only constitutionally permissible
method by which to determine reliability is “testing in the
crucible of cross-examination.” 133 Indeed, the Court notes that
Michael Crawford’s conviction under Roberts “reveal[ed] a
fundamental failure on [the Court’s] part to interpret the
Constitution in a way that secures its intended constraint on
judicial discretion.” 134
Although Crawford did not contemplate retroactivity, it
couched its holding in strong, unequivocal language, intimating
that its rule should satisfy Teague. Indeed, to hold otherwise
would render Crawford’s language meaningless rhetoric.
C.
Two Supreme Court Cases, Though Predating Teague,
Dictate That Crawford Should Be Retroactive
In two cases, Roberts v. Russell 135 and Berger v.
California, 136 the Court deemed rules implicating the
Confrontation Clause retroactive. Although both cases predate
Raleigh argued that Cobham had lied to save himself: “Cobham is absolutely
in the King’s mercy; to excuse me cannot avail him; by accusing me he may
hope for favor.” Suspecting that Cobham would recant, Raleigh demanded
that the judges call him to appear, arguing that “[t]he Proof of the Common
Law is by witness and jury: let Cobham be here, let him speak it. Call my
accuser before my face . . . .” The Judges refused, and, despite Raleigh’s
protestations that he was being tried “by the Spanish Inquisition,” the jury
convicted, and Raleigh was sentenced to death.
Id. at 44 (internal citations omitted). Justice Scalia then noted, “[O]ne of Raleigh’s
trial judges later lamented that ‘the justice of England has never been so degraded
and injured as by the condemnation of Sir Walter Raleigh.’” Id.
128
129
130
131
132
133
134
135
136
Id. at 53.
Id. at 67-68.
Id. at 61.
Id. at 68.
See supra Part II (discussing the Roberts framework).
Crawford v. Washington, 541 U.S. 36, 61 (2004).
Id. at 67.
392 U.S. 293 (1968).
393 U.S. 314 (1969).
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Teague, they are persuasive evidence of the high regard in
which the Court holds the Confrontation Clause.
1.
Bruton v. United States
Bruton v. United States 137 concerned Bruton, who had
been convicted of robbery. 138 He was tried jointly with his
alleged accomplice, Evans. 139 Evans did not testify at the trial,
but the prosecution introduced his oral confession, which
incriminated Bruton. 140 Bruton challenged his conviction,
claiming that the trial judge erred by admitting Evans’s
confession in violation of his, Bruton’s, confrontation right. 141
The Eighth Circuit Court of Appeals, however, applying Delli
Paoli v. United States, 142 upheld Bruton’s conviction because
the trial judge instructed the jury not to consider Evans’s
confession when determining Bruton’s guilt. 143 On appeal, the
Supreme Court overruled Delli Paoli, and reversed the Eighth
Circuit, holding that “despite instructions to the jury to
disregard the implicating statements in determining the
codefendant’s guilt or innocence, admission at a joint trial of a
137
391 U.S. 123 (1968).
Id. at 124.
139
Id.
140
Id.
141
Id. Evans also challenged his conviction and prevailed after the Circuit
Court held that Evans’s confession was obtained in violation of the recently decided
Miranda v. Arizona, 384 U.S. 436 (1966). Bruton, 391 U.S. at 124, n.1.
142
352 U.S. 232 (1957). Delli Paoli allowed a codefendant’s confession to be
admitted at a joint trial if the judge gave limiting instructions. Id. at 239.
143
Bruton, 391 U.S. at 124-25. The trial judge instructed the jury as follows:
138
A confession made outside of court by one defendant may not be considered
as evidence against the other defendant, who was not present and in no way
a party to the confession. Therefore, if you find that a confession was in fact
voluntarily and intentionally made by the defendant Evans, you should
consider it as evidence in the case against Evans, but you must not consider
it, and should disregard it, in considering the evidence in the case against the
defendant Bruton.
....
It is your duty to give separate, personal consideration to the cause of each
individual defendant. When you do so, you should analyze what the evidence
shows with respect to that individual, leaving out of consideration entirely
any evidence admitted solely against some other defendant. Each defendant
is entitled to have his case determined from his own acts and statements and
the other evidence in the case which may be applicable to him.” Id. at 125 n.2
(quoting Evans v. United States, 375 F.2d 355, 362 n.6 (1967), rev’d sub nom.,
Bruton, 391 U.S. 123) (alteration in original).
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defendant’s extra-judicial confession implicating a codefendant
violated the codefendant’s right of cross-examination.” 144
In Roberts v. Russell 145 the Supreme Court applied the
Bruton rule retroactively. The Russell Court held that “the
error” from Delli Paoli in admitting such statements “‘went to
the basis of fair hearing and trial because the procedural
apparatus never assured the [petitioner] a fair determination’
With “[d]ue regard for
of his guilt or innocence.” 146
countervailing considerations,” the Russell Court concluded
that “even if the impact of retroactivity may be significant, the
constitutional error presents a serious risk that the issue of
guilt or innocence may not have been reliably determined.” 147
Accordingly, the Court determined that the Bruton rule must
apply retroactively to cases on collateral review. 148
Although Russell was decided in 1968, twenty-one years
before Teague narrowed the scope of habeas review, its holding
remains significant even after Teague. Teague relied heavily
on the importance of finality and the administration of
The Russell Court clearly considered these
justice. 149
“countervailing” 150 interests yet concluded that “the impact of
retroactivity upon the administration of justice [did] not
counsel against retroactivity of Bruton.
The element of
reliance [was] not persuasive . . . .” 151
Moreover, Teague’s primary departure from existing
retroactivity doctrine was the second prong of its second
144
Roberts v. Russell, 392 U.S. 293, 294 (1969).
392 U.S. 293.
146
Id. at 294 (alteration in original) (quoting Linkletter v. Walker, 381 U.S.
618, 639 n.20 (1965)). The Bruton Court elaborated:
145
[T]here are some contexts in which the risk that the jury will not, or cannot,
follow instructions is so great, and the consequences of failure so vital to the
defendant, that the practical and human limitations of the jury system
cannot be ignored. Such a context is presented here, where the powerfully
incriminating extrajudicial statements of a codefendant . . . are deliberately
spread before the jury in a joint trial.
Bruton, 391 U.S. at 135-36 (citations omitted).
147
Russell, 392 U.S. at 295 (emphasis added).
148
Id.
149
Teague v. Lane, 489 U.S. 288, 309 (1989) (“Application of constitutional
rules not in existence at the time a conviction became final seriously undermines the
principle of finality which is essential to the operation of our criminal justice system.”).
150
Russell, 392 U.S. at 295.
151
Id. (citation omitted) (“Due regard for countervailing considerations—
reliance on the old standard of Delli Paoli and the impact of retroactivity upon the
administration of justice—does not counsel against retroactivity of Bruton. The
element of reliance is not persuasive . . . .” (citation omitted)).
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exception, 152 which requires a new rule to be “watershed” and to
“implicate the fundamental fairness of the trial.” 153 Indeed,
Russell, though not constitutionally required to do so (as
Teague had not yet imposed the obligation), contemplated this
aspect of the Bruton rule, and predicated its holding of
retroactivity on the belief that to deny the benefit of the rule
would “present[] a serious risk that the issue of guilt or
innocence may not have been reliably determined.” 154
Additionally, the Russell Court likened the Bruton rule
of Confrontation Clause interpretation to the rule of Gideon v.
Wainwright. 155 Courts have often refused to hold “new” rules
retroactive because the Supreme Court instructs that a new
rule must be comparable to the Gideon rule to warrant
retroactivity. 156 Russell cited Gideon to support its proposition
that the Supreme Court has “retroactively applied rules of
criminal procedure fashioned to correct flaws in the fact-finding
process at trial.” 157 Relying on Gideon as authority indicates
that the Court believed the right of confrontation to be
tantamount to the right to counsel.
It thus seems very reasonable to conclude that the
Russell analysis, though not controlled by Teague, was just as
demanding, and that even under the Teague standard the
Russell Court would have applied Bruton retroactively. Since
Crawford’s rule is similar to Bruton’s, Crawford deserves equal
consideration when subjected to retroactivity analysis.
2.
Barber v. Page
Likewise, the Supreme Court applied Barber v. Page 158
retroactively in Berger v. California. 159 Barber v. Page declared
152
See supra note 74.
Teague, 489 U.S. at 311, 312.
154
Russell, 392 U.S. at 295.
155
Russell, 392 U.S. at 294 (comparing Bruton to Gideon).
156
See, e.g., Beard v. Banks, 542 U.S. 406, 417 (2004); Saffle v. Parks, 494
U.S. 484, 495 (1990). Gideon v. Wainwright conferred on indigent defendants the right
to counsel. 372 U.S. 335, 344 (1963).
157
Russell, 392 U.S. at 294 (quoting Stovall v. Denno, 388 U.S. 293, 298
(1967)).
158
390 U.S. 719 (1968).
159
393 U.S. 314, 315 (1969) (“[W]e can see no reason why Barber v. Page
should not be given fully retroactive application.”). See generally People v. Watson, No.
7715/90, 2004 N.Y. Misc. LEXIS 2133, at *8 n.5 (N.Y. Sup. Ct. Nov. 8, 2004) (“[A]t the
time that Berger v. California and Roberts v. Russell were decided, the retroactivity of
any new rule was determined under the [Linkletter v. Walker, 381 U.S. 618 (1965)]
standard, regardless of when the defendant’s conviction became final.”).
153
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1655
that the preliminary hearing testimony of a witness currently
outside of the jurisdiction is inadmissible absent a good faith
effort by the state to secure the witness’s presence. 160 In
deeming the rule retroactive, the Berger Court determined that
notwithstanding the state’s “countervailing interests,” 161 the
opportunity to cross-examine a witness has a “significant effect
on the ‘integrity of the fact-finding process.’” 162 Barber and
Crawford alike make it more difficult for the prosecution to use
evidence absent confrontation, and both cases stand on the
proposition that the Confrontation Clause is essential to
fairness.
Since Barber was made retroactive, so should
Crawford be.
In summary, Crawford’s rule is of comparable
importance to the rules of Bruton and Barber. All three rules
seek to give content to the same “bedrock procedural
guarantee,” 163 the Confrontation Clause of the Sixth
Amendment. Bruton held that a codefendant’s confession may
not be admitted as evidence at a joint trial, regardless of
cautionary jury instructions, 164 and Barber made inadmissible
statements of non-testifying, out-of-jurisdiction witnesses. 165
Similarly, Crawford held that “testimonial” statements were
inadmissible absent the opportunity for cross-examination. 166
Each rule corrected a similar constitutional vice. 167 Since
Teague, the Supreme Court has not considered the retroactivity
of a “new” rule concerning the Confrontation Clause.
Nevertheless, since Berger and Russell imply that
Confrontation Clause violations affect the fairness and
accuracy of the trial, even under Teague, both rules would
160
Barber, 390 U.S. at 724-25 (“In short, a witness is not ‘unavailable’ for
purposes of the foregoing exception to the confrontation requirement unless the
prosecutorial authorities have made a good-faith effort to obtain his presence at
trial. . . . The right of confrontation may not be dispensed with so lightly.”).
161
Berger, 393 U.S. at 315 (“California’s claim of . . . countervailing
interest[s] . . . is most unpersuasive.”).
162
Id. (quoting Linkletter, 381 U.S. at 639).
163
Crawford v. Washington, 541 U.S. 36, 42 (2004).
164
Roberts v. Russell, 392 U.S. 293, 293 (1968) (summarizing Bruton).
165
Barber, 390 U.S. at 724-25.
166
Crawford, 541 U.S. at 68-69 (“Where testimonial statements are at issue,
the only indicium of reliability sufficient to satisfy constitutional demands is the one
the Constitution actually prescribes: confrontation.”).
167
See Russell, 392 U.S. at 294; Crawford, 541 U.S. at 63 (“The unpardonable
vice of the Roberts test, however, is not its unpredictability, but its demonstrated
capacity to admit core testimonial statements that the Confrontation Clause plainly
meant to exclude.”).
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deserve retroactivity. 168 Crawford, like Bruton and Barber
before it, corrected an error in Confrontation Clause
jurisprudence. Accordingly, Crawford, when subjected to
Teague’s scrutiny, should be given full retroactive effect.
D.
The Retroactivity of Cruz v. New York Dictates that
Crawford Qualifies for the Second Teague Exception
Both the Second Circuit Court of Appeals 169 and the New
York Court of Appeals 170 retroactively applied the Supreme
Court’s holding in Cruz v. New York. 171 Both courts analyzed
retroactivity under Teague, and both concluded that the Cruz
rule was sufficiently “watershed” to fit within Teague’s second
exception.
Since both Cruz and Crawford implicate the
Confrontation Clause, and since Crawford is at least as, if not
more, necessary to the fundamental fairness and accuracy of
the trial, Crawford also deserves retroactive application.
Cruz v. New York concerned Eulogio and Benjamin
Cruz, who were tried jointly for the felony murder of a gas
station attendant. 172 At trial, prosecutors played a taped
statement made by Benjamin, which incriminated Eulogio. 173
Benjamin did not testify at trial, and hence was unavailable to
Eulogio for cross-examination. 174 The judge, recognizing that
Benjamin’s statement was inadmissible against Eulogio,
instructed the jury not to consider Benjamin’s statement when
determining Eulogio’s guilt. 175 Eulogio had also confessed, but
his confession was found inadmissible. The jury returned a
guilty verdict against Eulogio despite the lack of admissible
168
One court recently noted that
[N]otwithstanding the fact that Roberts v. Russell and Berger v. California
were not decided according to the Teague standard, they support the view
that the constitutional right to confront witnesses is a watershed rule,
because they indicate that a violation of this right implicates the fairness of
the trial and the accuracy of the fact-finding process.
People v. Watson, No. 7715/90, 2004 N.Y. Misc. LEXIS 2133, at *8 (N.Y. Sup. Ct. Nov.
8, 2004).
169
Graham v. Hoke, 946 F.2d 982, 983 (2d Cir. 1991).
170
People v. Eastman, 85 N.Y.2d 265, 268 (1995).
171
481 U.S. 186 (1987).
172
Id. at 189.
173
Id. at 188-89.
174
Cruz v. New York, 481 U.S. 186, 188-89 (1987).
175
Id. at 189.
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1657
evidence linking him to the murder. 176 Eulogio’s conviction was
upheld on appeal because Eulogio’s own confession, not
admitted at trial, “interlocked” with Benjamin’s. 177 In other
words, Benjamin’s statement was inadmissible against Eulogio,
and Eulogio’s own confession was also inadmissible against
Eulogio, but since both statements were similar, or
“interlocking,” Eulogio’s conviction was upheld despite the lack
of admissible evidence. 178
The Supreme Court, in Cruz v. New York, reversed
Eulogio’s conviction because it violated the Confrontation
Clause. 179 Specifically, Cruz contemplated “interlocking
confessions,” and held that “where a nontestifying
codefendant’s confession incriminating the defendant is not
directly admissible against the defendant, the Confrontation
Clause bars its admission at their joint trial, even if the jury is
instructed not to consider it against the defendant.” 180
Before Cruz, statements of this sort were frequently
admitted if they were “factually consistent” with or
176
Id. (“At the trial’s end, however, Norberto’s testimony stood as the only
evidence admissible against Eulogio that directly linked him to the crime.” But
nevertheless, “the jury convicted both defendants.”).
177
The New York Court of Appeals explained “interlocking confessions” as
follows,
Confessions are “interlocking” if their content is substantially similar. The
statements need not be identical, it is sufficient that both cover all major
elements of the crime involved and are “essentially the same” as to motive,
plot and execution of the crimes. Statements are substantially similar when
defendant’s confession is close enough to the codefendant’s with respect to the
material facts of the crime charged to make the probability of prejudice so
negligible that the end result would be the same without the codefendant’s
statement. Confessions do not “interlock,” however, if a codefendant’s
confession may be used to fill material gaps in the necessary proof against
defendant.
People v. Cruz, 66 N.Y.2d 61, 70 (citations omitted). The court concluded that the Cruz
brothers’ statements did, in fact, “interlock”:
[T]he Cruz brothers agreed, in their separate statements, on the date and
target of the crime, the participants in it, the motive of robbery, and the
essential facts of how defendant was injured and the station attendant killed.
Although Benjamin’s statement was substantially longer, the details included
did not contradict or modify the essential elements of defendant’s statement.
Id. at 71.
178
Id. at 65.
Cruz, 481 U.S. 186, 189 (1987).
180
Id. at 193. “Cruz . . . repudiated the interlocking confession exception to
the Bruton rule that the Parker plurality and several Courts of Appeals . . . previously
had recognized. . . . Parker commonly was perceived as having endorsed an
interlocking confession exception to the Bruton rule.” Graham v. Hoke, 946 F.2d 982,
993 (2d Cir. 1991).
179
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“substantially similar” to the defendant’s own statement. 181
The Cruz Court, however, declared the use of such statements
constitutionally unsound, and in direct conflict with the
precedent established in Bruton. 182 Cruz’s author, Justice
Scalia, concluded that “[t]he law cannot command respect if
such an inexplicable exception to a supposed constitutional
imperative is adopted.” 183
Both the Second Circuit Court of Appeals and the New
York Court of Appeals applied the Cruz holding retroactively
under the second Teague exception. In their analyses, both
courts determined that the Cruz rule involved a “bedrock
procedural element.” 184 New York’s highest court, in People v.
Eastman, proclaimed that “Cruz unquestionably . . . implicates
a bedrock procedural element,” 185 while the Second Circuit
Court of Appeals, in Graham, announced that “there [could] be
little doubt that the decision altered our understanding of a
bedrock procedural principle.” 186 Graham continued that “[t]he
‘bedrock procedural element’ implicated in Cruz was the right
of confrontation; a right which the Supreme Court long ago
referred to as being ‘one of the fundamental guarantees of life
and liberty,’” 187 and cited with approval the notion that “[t]he
right of cross-examination is more than a desirable rule of trial
procedure.
It is implicit in the constitutional right of
confrontation.”
Eastman and Graham then determined that, in addition
to implicating a “fundamental procedural guarantee,”
application of the Cruz rule is essential to a fair trial. 188
According to the Eastman court, the Cruz rule is necessary in
order for “the procedural apparatus of trial . . . [to] assure[] the
181
People v. Eastman, 85 N.Y.2d 265, 273-74, 274 n.4 (1995).
Bruton v. United States, 391 U.S. 123, 137 (holding that a defendant is
deprived of his Confrontation Clause rights when a codefendant’s incriminating
confession is introduced at their joint trial, even if cautionary instructions were given
to the jury to disregard the statement).
183
481 U.S. at 193.
184
Graham, 946 F.2d at 993; Eastman, 85 N.Y.2d at 276. Graham did not
actually make the determination of whether Cruz announced a “new” or an “old” rule.
However, the court reasoned that the rule is retroactive either way. Graham, 946 F.2d
at 992 (“[W]e find it unnecessary to categorize the Cruz rule as either a ‘new’ or ‘old’
rule of constitutional criminal procedure. Rather, we . . . believe that regardless of
whether the Cruz rule is characterized as a ‘new’ or ‘old’ rule it should be applied
retroactively.”).
185
Eastman, 85 N.Y.2d at 276.
186
Graham, 946 F.2d at 993.
187
Id. at 994 (quoting Kirby v. United States, 174 U.S. 47, 55 (1899)).
188
Id. at 993-94; Eastman, 85 N.Y.2d at 276.
182
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defendant a fair determination of guilt or innocence,” 189 and the
admission of the types of statements proscribed by Cruz
“undermine[s] . . . fundamental fairness.” 190 Similarly, Graham
held that the Cruz rule is necessary to “ensure[] a fair
proceeding.” 191 Graham concluded that “[t]he Cruz rule . . .
satisfies [Teague’s] second exception to the general rule against
retroactive application of ‘new’ constitutional rules of criminal
procedure,” 192 and that “[e]ven if the impact of retroactivity may
be significant, the constitutional error presents a serious risk
that the issue of guilt or innocence may not have been reliably
determined.” 193
The Crawford rule is analogous to the Cruz rule, and
hence, deserves equal treatment for retroactivity purposes.
Both rules severely limited the kind of evidence which may be
admitted
without
cross-examination;
Cruz
rejected
“interlocking” confessions, 194 while Crawford rejected all
“testimonial” statements. 195 Both corrected flaws in the Court’s
Confrontation Clause jurisprudence. 196
In fact, Crawford corrected an even greater affront to
the Confrontation Clause than did Cruz.
In Cruz, the
defendant and codefendant were tried jointly, but the
codefendant’s statement was introduced only against the
codefendant; the court explicitly directed jurors not to consider
the statement in evaluating Cruz’s guilt. 197 Even though the
Cruz Court concluded that jurors could not reasonably be
expected to obey such an instruction, 198 the resulting
Confrontation Clause violation was still indirect. The Cruz
trial court recognized that jurors should not consider the
testimony at issue, and instructed the jury accordingly.
On the other hand, in Crawford, the trial court admitted
testimonial hearsay directly against the defendant. Limiting
instructions were never given, not even difficult or impossible189
Eastman, 85 N.Y.2d at 276.
Id.
191
Graham, 946 F.2d at 993-94.
192
Id.
193
Id. at 994 (quoting Roberts v. Russell, 392 U.S. 293, 295 (1968)).
194
Cruz v. New York, 481 U.S. 186 (1987).
195
Crawford v. Washington, 541 U.S. 36 (2005).
196
Id. at 61 (“Admitting statements deemed reliable by a judge is
fundamentally at odds with the right of confrontation.”); Cruz, 481 U.S. at 193 (“The
law cannot command respect if such an inexplicable exception to a supposed
constitutional imperative is adopted.”).
197
Cruz, 481 U.S. at 189.
198
Id. at 193.
190
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to-obey ones. 199 The court invited the Crawford jury to consider
the ex parte accusatory statement for its truth in deciding
whether or not to convict. 200 Therefore, reason dictates that if
Cruz twice achieved retroactive effect under Teague, then
surely Crawford, correcting an even more egregious
constitutional malady, should receive equal consideration.
E.
Litigation Concerning Crawford’s Retroactivity has
Begun, and Lower State and Federal Courts Are in
Disagreement
Of the five federal circuits that have ruled on
Crawford’s retroactivity, only one concluded that Crawford’s
rule qualified under Teague’s second exception. 201 Those failing
to find Crawford retroactive, however, have done so after only a
cursory analysis. 202 Some have flatly stated that Crawford is
not “watershed,” effectively assuming that which they should
be attempting to prove. 203 Others have chosen to make the fact
that Confrontation Clause violations are subject to harmless
199
See Crawford, 541 U.S. at 40-41.
Id. at 40.
201
The Ninth Circuit has held Crawford retroactive under the second Teague
exception. Bockting v. Bayer, 399 F.3d 1010, 1019-21 (9th Cir. 2005). The Second,
Sixth, Seventh, and Tenth Circuits have decided not to make Crawford retroactive.
Bintz v. Bertrand, 403 F.3d 859, 867 (7th Cir. 2005); Murillo v. Frank, 402 F.3d 786,
790 (7th Cir. 2005); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005); Mungo v.
Duncan, 393 F.3d 327, 336 (2d Cir. 2004); Brown v. Uphoff, 381 F.3d 1219, 1227 (10th
Cir. 2004). The Eighth Circuit has indicated that Crawford is not retroactive. Evans
v. Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004) (suggesting in dicta that Crawford
does not apply retroactively).
202
See, e.g., Bockting, 399 F.3d at 1020 (“The flaw in this analysis [declining
to make Crawford retroactive] is that the Second Circuit has substituted its judgment
of whether the Crawford rule is one without which the accuracy of conviction is
seriously diminished, for the Supreme Court’s considered judgment.”); People v.
Watson, No. 7715/90, 2004 N.Y. Misc. LEXIS 2133, at *8 (N.Y. Sup. Ct. Nov. 8, 2004)
(“For the most part, however, with little analysis, these courts have generally held that
Crawford . . . did not announce a watershed rule of criminal procedure.” The court
continued that, “[w]here explanations have been proffered for this conclusion, these
courts have generally pointed to the fact that a Confrontation Clause violation is
subject to harmless error analysis.”).
203
See, e.g., Brown, 381 F.3d at 1226; Evans, 371 F.3d at 444-45; Garcia v.
United States, No. 04-CV-0465, 2004 WL 1752588, at *4 (N.D.N.Y. Aug. 4, 2004);
Hutzenlaub v. Portuondo, 325 F. Supp. 2d 236, 237-38 (E.D.N.Y. 2004); Wheeler v.
Dretke, No. Civ.A. 404CV026Y, 2004 WL 1532178, at *1 (N.D. Tex. July 6, 2004);
Murillo v. Frank, 316 F. Supp.2d 744, 749 (E.D. Wis. 2004), aff’d, 402 F.3d 786. Some
state courts have held similarly. See, e.g., People v. Edwards, 101 P.3d 1118, 1122 (Ct.
App. Colo. 2004), aff’d, 129 P.3d 977, No. 04SC565, 2006 WL 320992 (Colo. Feb. 13,
2006); People v. Khan, No. 499-90, 2004 WL 1463027, at *4-5 (N.Y. Sup. Ct. June 23,
2004).
200
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error 204 analysis fatal to Crawford’s retroactivity. 205
The
Supreme Court, however, has never indicated that a rule
subject to harmless error analysis may not be deemed
“watershed” under Teague. 206 In fact, the constitutional error
corrected by Cruz was also subject to harmless error analysis,
yet it was made retroactive by the New York Court of Appeals
and the Second Circuit. 207 Therefore, that a Confrontation
Clause violation may not require automatic reversal does not
preclude the rule from fitting within the second Teague
exception.
Two New York Appellate Division cases, citing
Eastman, recently found Crawford retroactive under the
second Teague exception. People v. Watson 208 and People v.
Dobbin 209 both held that since Eastman declared that Cruz
satisfied Teague, then so does Crawford. 210 The implicit logic in
Watson and Dobbin is clear. Both courts analogized Cruz to
Crawford, and concluded that the Crawford rule is at least as,
if not more, constitutionally imperative than the Cruz rule.
Thus, because Cruz satisfied Teague, Crawford does as well.
Since the New York Court of Appeals and the Second Circuit
applied Cruz retroactively on collateral review, 211 making
Crawford retroactive was the only sensible conclusion. 212
204
Harmless error review means that even if there was a mistake at trial the
verdict will stand unless the mistake affected the substantial rights of the parties. See
LAFAVE, supra note 9, at 1298.
205
See, e.g., Brown, 381 F.3d at 1226-27; Garcia, 2004 WL 1752588, at *4
(N.D.N.Y. 2004). “These courts have reasoned that because Confrontation Clause
errors are subject to harmless error review, new rules altering the clause’s application
do not deprive a defendant of his or her fundamental right to due process and,
therefore, [Crawford] cannot be considered a watershed rule.” People v. Watson, No.
7715/90, 2004 N.Y. Misc. LEXIS 2133, at *8 (N.Y. Sup. Ct. Nov. 8, 2004) (citation
omitted).
206
Watson, 2004 N.Y. Misc. LEXIS 2133, at *10 n.7 (“The Supreme Court has
never issued any decision . . . indicating that a rule which is subject to harmless error
analysis cannot be considered a watershed rule.”); see also Bockting, 399 F.3d at 1020
(“[W]hether a rule of constitutional law is subject to harmless error review does not
answer the question whether it is a bedrock rule of procedure.”).
207
See discussion supra notes 167-91 and accompanying text.
208
2004 N.Y. Misc. LEXIS 2133.
209
791 N.Y.S.2d 897 (N.Y. Sup. Ct. 2004).
210
Watson, 2004 N.Y. Misc. LEXIS 2133, at *9 (“[A]pplying Teague’s
teachings, this court finds that the rule announced in Crawford is a ‘watershed’ rule of
Criminal Procedure, and thus applies to cases on collateral review.”); Dobbin, 791
N.Y.S.2d at 905 (“[T]he Crawford rule must be applied retroactively on collateral
review.”) (italics added).
211
Watson and Dobbin were New York Appellate Division cases. Thus, People
v. Eastman, 85 N.Y.2d 265 (1995), decided by the New York Court of Appeals, was
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CONCLUSION
With Crawford the Supreme Court corrected an
“unpardonable” 213 flaw in its jurisprudence, and restored the
Confrontation Clause to its rightful status as a bedrock
constitutional guarantee essential to a fair trial.
Notwithstanding the high bar set by Teague and its progeny,
Crawford deserves to be applied retroactively.
As a “new” rule, Crawford’s retroactivity turns on
whether it fits within the contours of the second Teague
exception. Teague adopted a strict standard for the retroactive
application of “new” rules, so strict in fact that the Supreme
Court has yet to find a rule capable of satisfying it. The Court,
however, has never applied the Teague framework to a rule as
significant as Crawford’s. Crawford is more important than,
and thus distinguishable from, its “new” rule predecessors, all
of which failed under Teague.
What separates Crawford from other “new” rules not
worthy of retroactivity is its subject, the Confrontation Clause.
Prior to Teague, the Supreme Court twice gave retroactive
effect to “new” rules concerning the Confrontation Clause, both
times concluding that to deprive a defendant of the right of
confrontation was to withhold a fundamental constitutional
guarantee essential to a fair trial. Furthermore, the New York
Court of Appeals and the Second Circuit both applied the
Supreme Court’s holding in Cruz v. New York retroactively,
demonstrating that even under the strict Teague framework,
the importance of the Confrontation Clause outweighs the
negative implications of retroactivity.
Roberts’s malleable test rendered the Confrontation
Clause constitutionally infirm. With Crawford, the Supreme
Court resuscitated the right of confrontation, and with it, the
legitimacy of criminal trials. The Supreme Court admittedly
“[did] violence to [the] design” of the Confrontation Clause
binding precedent; Graham v. Hoke, 946 F.2d 982 (2d Cir. 1991), decided by the Second
Circuit Court of Appeals, was merely persuasive.
212
Recently the Second Circuit held that Crawford is not retroactive under
Teague, yet failed to cite Graham in its analysis. Mungo v. Duncan, 393 F.3d 327, 336
(2d Cir. 2004). Nor did the court make any attempt to distinguish the Cruz rule, made
retroactive in Graham, with the Crawford rule. Id. See Part IV.D, supra, for a
comparison of Crawford to Cruz, and for an argument that Crawford, in fact, corrected
an even more serious constitutional flaw.
213
Crawford v. Washington, 541 U.S. 36, 63 (2004).
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when it endorsed the Roberts test, 214 and limiting Crawford to
prospective application would exacerbate Roberts’s damage.
In summary, neither history nor precedent leaves any
doubt that the right of confrontation is crucial to a fair trial,
Roberts denied criminal defendants the enjoyment of that
right, and Crawford corrected Roberts’s mistake. Only one
conclusion follows: Crawford v. Washington must be applied
retroactively.
Brian Spitser †
214
Id. at 67-68 (“By replacing categorical constitutional guarantees with openended balancing tests, we do violence to their design.”).
†
B.S. Boston College, 2002; J.D. candidate, Brooklyn Law School, 2006. The
author thanks the Legal Aid Society’s Criminal Appeals Bureau, Brooklyn Law Review,
his friends, and his family.
Fair Use in Trademark in the
Post-KP Permanent World
HOW INCORPORATING PRINCIPLES FROM
COPYRIGHT LAW WILL LEAD TO LESS CONFUSION
IN TRADEMARK LAW
INTRODUCTION
Imagine it is Christmas time, and you are looking for a
gift for your nine-year-old niece Suzie. You know that Suzie
loves the television show, American Idol, 1 so you resort to the
Internet and perform a search for the phrase “American Idol.”
This search brings you to the homepage of Constantine
Maroulis, a former contestant from the show’s past season.
The top of the page reads, “Welcome to the homepage of
Constantine Maroulis: A Real American Idol.” The page
contains many references to the television show, including
screenshots of a few of Constantine’s more memorable
performances. You can even purchase Constantine’s debut CD,
entitled “A Real American Idol,” as well as a life-size
Constantine Maroulis poster if you are so inclined. Suzie is a
big fan, so you buy both, but when you give them to her, she
starts crying. Suzie screams, “That’s not the real American
Idol! Where’s Kelly Clarkson, Ruben Studdard, and Fantasia
Barrino?” 2
Failed Christmas presents aside, American Idol has a
potential claim for trademark infringement against
Constantine Maroulis, since consumers may incorrectly think
that the show produced or sponsored Constantine’s CD.
Trademarks are designed to protect the trade reputation, or
goodwill, of the trademark owner who, through use and
advertising, has created an association of his or her product or
1
American Idol (FOX television broadcast 2002-present).
Kelly Clarkson, Ruben Studdard, and Fantasia Barrino were the winners
from the first three seasons. As winners, American Idol produces and releases their
debut album.
For more information, see American Idol: About the Show,
http://www.idolonfox.com/about (last visited Mar. 13, 2006).
2
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service with that trademark. 3 For a trademark owner to
succeed on a claim of infringement under the Federal
Trademark (Lanham) Act, 4 he must show that consumers are
likely to be confused as to the source of the junior user’s
product. 5 Courts typically look at many factors to determine if
a likelihood of confusion exists. 6
On the other hand, Constantine has a good opportunity
to assert the statutory fair use defense to trademark
infringement, since he is simply describing himself as a real
American idol, and to some, this is an accurate description. In
defense to a charge of trademark infringement, a defendant can
assert the statutory fair use defense of the Lanham Act. 7 To
succeed on this defense, a defendant must show that he used
the trademark descriptively, not as a trademark, fairly, and in
good faith. 8 Until recently, the U.S. Supreme Court had not
addressed how courts should handle the fair use defense when
faced with a seemingly strong claim for trademark
infringement. In other words, can Constantine claim that his
use was fair even though consumers are likely to be confused
by the origin of the products sold on his website?
In 2004, the Supreme Court issued a landmark decision
addressing the issue. 9 In KP Permanent Make-Up, Inc. v.
Lasting Impression I, Inc. (“KP Permanent”), the Supreme
Court held that the statutory fair use defense could succeed
even in the face of confusion. 10 Unfortunately, the Supreme
Court failed to give any indication as to just how much
confusion could defeat the fair use defense. 11 In this Note, I
will argue that because of the similarities between the concerns
of copyright and trademark protection, trademark law will
benefit from incorporating some of the factors from copyright
law’s fair use defense as an aid to lower courts being asked to
decide whether a use is fair. Although copyright law differs
3
See 1 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 3:2 (4th ed., 2005).
4
15 U.S.C. §§ 1051-1141n (2000).
5
Id. § 1114(1)(a) (2000).
6
See infra note 32.
7
15 U.S.C. § 1115(b)(4) (2000).
8
Id.
9
See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S.
111 (2004).
10
Id. at 122 (holding that “some possibility of consumer confusion must be
compatible with fair use”).
11
Id. at 123 (recognizing that while “mere risk of confusion will not rule out
fair use, we think it would be improvident to go further in this case”).
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FAIR USE IN THE POST-KP PERMANENT WORLD
1667
from trademark law in that it protects original works of
authorship such as songs or books, there are substantial
similarities between the two that justify incorporation. 12
In trademark law prior to KP Permanent, the circuit
courts disagreed on the role that confusion played in a fair use
defense. 13 The Ninth Circuit, which issued the decision leading
to the Supreme Court’s ruling in KP Permanent, allowed
confusion to defeat a fair use defense and required the
defendant to prove the absence of likely confusion. 14 In
opposition to that view, the Second Circuit allowed fair use to
succeed even upon a showing of some confusion and did not
require a defendant to negate any likelihood of confusion. 15
Other courts fell somewhere in the middle. 16 In KP Permanent,
the Supreme Court agreed with the Second Circuit, holding
that fair use could exist in the face of confusion, but left open to
interpretation just how much confusion would defeat a fair use
defense. 17 The Court’s decision effectively left lower courts with
a blank check, and those courts have not balked at the ability
to write their own rules. 18
Copyright law’s fair use test has given lower courts the
clear guidance lacking in trademark law, and similar principles
and factors from that test are inherent in trademark law. 19 In
copyright law, it is well established that fair use is an
affirmative defense to infringement. 20 After decades of judge12
See discussion infra Part III.
See discussion infra Part I.C.
14
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 328 F.3d 1061,
1072 (9th Cir. 2003), vacated, 543 U.S. 111 (2004).
15
See, e.g., Cosmetically Sealed Indus., Inc. v. Chesebrough-Pond’s USA Co.,
125 F.3d 28, 30 (2d Cir. 1977) (noting that any confusion that results “is a risk the
plaintiff accepted when it decided to identify its product with a mark that uses a well
known descriptive phrase”) (citing Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70
F.3d 267, 270 (2d Cir. 1995)).
16
See PACCAR Inc. v. TeleScan Technologies, L.L.C., 319 F.3d 243, 256 (6th
Cir. 2003) (finding that a “likelihood of confusion forecloses a fair use defense”);
Zatarains Inc. v. Oak Grove Smokehouse, 698 F.2d 786, 796 (5th Cir. 1983) (providing
that any likelihood of confusion bars the fair use defense); but cf. Shakespeare Co. v.
Silstar Corp. of Am., Inc., 110 F.3d 234, 243 (4th Cir. 1997) (noting that “[t]he fair use
defense comes into play only when infringement – including a likelihood of confusion –
has been established”); Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055,
1059 (7th Cir. 1995) (holding that fair use could succeed even in the face of likely
confusion).
17
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111,
116-17 (2004).
18
See discussion infra Part I.E.
19
See discussion infra Part III.
20
See 17 U.S.C. § 107 (2000); see also discussion infra Part II.
13
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made law, 21 Congress codified the doctrine in section 107 of the
Copyright Act of 1976. 22 Section 107 defined four factors that
courts should look at to determine if an alleged infringing use
is fair. 23 These factors are: (1) the purpose and character of the
use; (2) the nature of the copyrighted work; (3) the amount and
substantiality of the portion used; and (4) the effect of the use
on the potential market for or value of the copyrighted work. 24
While there is no per se formula for what constitutes fair use,
certain combinations of these factors will make a fair use
defense more likely to succeed. 25
Some judges have already begun to implicitly apply
This Note will
copyright concepts to trademark cases. 26
demonstrate why these judges are moving in the right direction
and suggest further ways to implement this new approach.
Part I begins with a history of fair use in trademark, including
the circuit split that led to the decision in KP Permanent. This
section will also address the Court’s holding in KP Permanent
and illustrate the Court’s reasoning for establishing fair use as
an absolute defense. This section will conclude by discussing
the state of the fair use defense following KP Permanent and
the ways in which lower courts have begun to apply the
Supreme Court’s holding.
Part II will discuss the background of fair use in
copyright, and the factors that courts apply to determine fair
use. This section will also illustrate typical applications of the
copyright fair use test and instances in which courts have
upheld or denied use as fair. Part III will look at the
similarities between the principles of trademark and copyright
protection as well as their respective fair use defenses. In
order to suggest that trademark law should incorporate
elements of copyright law, this section will illustrate the
similar concerns of both areas of the law in granting protection
21
The concept of fair use in copyright first appeared in a judicial opinion in
1841. See Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C.D. Mass. 1841) (No. 4,901). The
term “fair use” in copyright first appeared in a judicial opinion in 1869. See Lawrence
v. Dana, 15 F. Cas. 26, 44 (C.C.D. Mass. 1869) (No. 8,136).
22
17 U.S.C. § 107 (2000).
23
Id.
24
Id.
25
See, e.g., Lish v. Harper’s Magazine Found., 807 F. Supp. 1090, 1096
(S.D.N.Y. 1992) (fair use defense failed even though the fourth factor favored the
defendant); see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 594 (1994) (while
suggesting fair use on the first three factors, the Court remanded to allow the hole in
the evidence with respect to the fourth factor to “be plugged on remand”).
26
See infra notes 255-56 and accompanying text.
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FAIR USE IN THE POST-KP PERMANENT WORLD
1669
and allowing fair use. This section will also address the notion
that the scope of trademarks is expanding, which warrants a
further examination of their protection.
Finally, Part IV will argue that trademark law can
borrow specific principles from copyright law to lead to less
confusion in the lower courts. This section will demonstrate
how borrowing certain aspects of the copyright test and
incorporating them into their counterparts in trademark will
provide courts with a more consistent approach to fair use in
trademark and ultimately lead to less confusion in litigation.
I.
TRADEMARKS AND FAIR USE
A trademark is a designation that identifies and
distinguishes a seller’s goods from those of its competitors. 27
By attaching a trademark to its goods, a seller alerts the public
that goods bearing this trademark come from that seller and
are of a certain quality. 28 For example, when a consumer sees a
small insignia of a polo player on a horse on the breast of a
man’s shirt, he knows that shirt was manufactured by Polo, 29
and this brand alerts the buyer to a level of quality in the shirt.
Trademarks are granted legal protection to safeguard this
trade reputation of the trademark owner who has created an
association of a product or service with that trademark. 30
When someone other than the trademark owner begins selling
goods using a similar name, the trademark owner may succeed
on a claim of infringement by showing that consumers are
likely to be confused by the similarities. 31 In these cases, courts
conduct an intense fact-finding inquiry to determine if a
likelihood of confusion exists. 32
27
See 1 MCCARTHY, supra note 3, § 3:1.
Id. § 3:2.
29
Polo is a popular brand of clothing, best known for its logo consisting of a
horse which often appears on the breast of a man’s collared shirt. For more
information, see About Ralph Lauren, http://about.polo.com (last visited Mar. 13, 2006).
30
See 1 MCCARTHY, supra note 3, § 3:2.
31
15 U.S.C. § 1114(1)(a) (2000).
32
See, e.g., Polaroid Corp. v. Polarad Elects. Corp., 287 F.2d 492, 495 (2d Cir.
1961) (defining the factors to consider as: (1) the strength of the plaintiff’s trademark;
(2) the degree of similarity between the marks; (3) the proximity of the products or
services; (4) the likelihood that the plaintiff will bridge the gap; (5) actual confusion; (6)
a defendant’s bad faith in adopting its mark; (7) the quality of the defendant’s product;
and (8) the sophistication of the buyers).
28
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Statutory, or “Classic,” Fair Use
In defense to a charge of trademark infringement, a
defendant can assert the statutory fair use defense of the
Lanham Act. 33 To succeed on this defense, a defendant must
show that he used the trademark descriptively and not as a
For example, a
trademark, fairly, and in good faith. 34
housecleaning service who advertises that they will “Clean up
your Windows” can assert the statutory fair use defense if faced
with allegations of infringement by Microsoft. 35 Statutory fair
use is also referred to as “classic” fair use, since it existed
under the common law of unfair competition prior to the
enactment of the Lanham Act. 36 In passing the Lanham Act,
Congress codified the doctrine and established that a user
accused of infringement can assert the statutory affirmative
defense of fair use. 37 The fair use defense, in essence, restricts
a trademark owner from exercising exclusive rights over a
descriptive term which would prevent others from accurately
Specifically, the Lanham Act
describing their product. 38
requires that three elements be met to establish the defense:
(1) the challenged infringement must not be used as a trade or
service mark; (2) the challenged infringement must describe
the goods; and (3) use must be fair and in good faith. 39 While
the first two factors involve relatively simple factual inquiries,
33
34
15 U.S.C. § 1115(b)(4) (2000).
The relevant portion of 15 U.S.C. § 1115 provides:
That the use of the name, term, or device charged to be an infringement is a
use, otherwise than as a mark, of the party’s individual name in his own
business, or of the individual name of anyone in privity with such party, or of
a term or device which is descriptive of and used fairly and in good faith only
to describe to users the goods or services of such party, or their geographic
origin . . . .
Id. (emphasis added).
35
Microsoft is a corporation which manufactures computer hardware and
software, most notably, the Windows operating system. For more information, see
Microsoft Corporation homepage, http://www.microsoft.com (last visited Jan. 22, 2006).
36
See, e.g., William R. Warner & Co. v. Eli Lilly & Co., 265 U.S. 526, 528
(1924) (stating that “[t]he use of a similar name by another to truthfully describe his
own product does not constitute a legal or moral wrong, even if its effect be to cause the
public to mistake the origin or ownership of the product”).
37
See 15 U.S.C. § 1115(b)(4) (2000).
38
Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1185 (5th Cir. 1980)
(permitting fair use “forbids a trademark registrant to appropriate a descriptive term
for his exclusive use and so prevent others from accurately describing a characteristic
of their goods”).
39
See 15 U.S.C. § 1115(b)(4) (2000).
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the final factor implicates much more subjective analysis, and
courts have come to strikingly different conclusions on what
constitutes fair use. 40
Before a defendant can assert statutory fair use as a
defense to an infringement claim, the plaintiff must first show
that its trademark is valid and that defendant’s use of the
trademark is likely to cause confusion, mistake, or deception
among consumers as to the source of defendant’s goods or
services. 41 Once a plaintiff has established both of these
elements, a defendant may claim that his or her use is fair as
an affirmative defense. 42 In permitting fair use of trademarks,
the Lanham Act seeks to prohibit a trademark owner from
precluding others from describing their goods. 43
By choosing a potentially descriptive mark, a plaintiff
runs a significant risk, because a competitor may want to use
those same words to accurately describe his or her product. 44
For example, although Tasti-D-Lite is a registered trademark,
a competing ice cream shop may wish to advertise that its ice
cream is tasty and delightful. Generally, the law prefers to
avoid monopolies, but trademark law often grants exclusive
rights, because there is a seemingly endless supply of potential
trademarks, and the cost of the monopoly to society is seen as
insignificant. 45 In other words, in the Tasti-D-Lite example, a
40
Compare PACCAR Inc. v. TeleScan Technologies, L.L.C., 319 F.3d 243, 256
(6th Cir. 2003) (finding that a “likelihood of confusion forecloses a fair use defense”);
Zatarains Inc. v. Oak Grove Smokehouse, 698 F.2d 786, 796 (5th Cir. 1983) (providing
that any likelihood of confusion bars the fair use defense) with Shakespeare Co. v.
Silstar Corp. of Am., 110 F.3d 234, 243 (4th Cir. 1997) (noting that “[t]he fair use
defense comes into play only when infringement – including a likelihood of confusion –
has been established”); Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055,
1059 (7th Cir. 1995) (holding that fair use could succeed even in the face of likely
confusion).
41
See, e.g., Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir.
2000) (stating that “[t]o prevail on [a claim of] trademark infringement [a plaintiff
must] prove that [its trademark] is a protectable trademark and that [defendant’s use]
is likely to confuse consumers as to the source of sponsorship of [plaintiff’s] product”).
42
See 15 U.S.C. § 1115(b)(4) (2000).
43
U.S. Shoe Corp. v. Brown Group Inc., 740 F. Supp. 196, 198 (S.D.N.Y.
1990) (allowing fair use “to prevent the trademark rights of one party from being
extended to preclude another party from the description of his product to the public”
(citing Eli Lilly & Co. v. Revlon, Inc., 577 F. Supp. 477, 486 (1983))), aff’d, 923 F.2d 844
(2d Cir. 1990). A plaintiff choosing a descriptive mark “cannot altogether exclude some
kinds of competing uses.” Id.
44
Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 12 (2d Cir.
1976).
45
U.S. Shoe Corp., 740 F. Supp. at 198 (stating that trademark law permits
monopolies “because potential identifying marks exist in virtually inexhaustible supply
[and] the cost of the monopoly to society is minimal”).
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competitor should have no problem using words other than
“tasty” or “delightful” to convey the same message without
causing unnecessary confusion in the marketplace.
Nevertheless, since the cost to society increases if a trademark
owner is granted exclusive use of a descriptive trademark, fair
use exists in part to help balance the interests in trademark
protection and unfair competition. 46 Unfortunately, statutory
fair use leaves open the question: at what point is the cost of
confusion created by fair use too great for society to tolerate?
When a defendant uses another’s trademark in the nondescriptive sense, however, he may still avoid a claim of
infringement if his use falls under the nominative fair use
doctrine.
B.
Nominative Fair Use
While statutory fair use allows a defendant to use a
trademark to describe its own product or service descriptively,
nominative fair use allows a defendant to use a trademark to
describe the trademark owner’s product or service. 47 For
example, an advertising campaign for “Brand X” that claims “If
you like Brand Y, you’ll love Brand X” is an example of a
nominative fair use. The nominative fair use defense is
entirely a product of the judiciary. 48 The leading court in
addressing nominative fair use, the Ninth Circuit Court of
Appeals, defined three elements required to successfully assert
a nominative fair use claim: (1) “the product or service in
question must be one not readily identifiable without use of the
trademark;” (2) “only so much of the mark or marks may be
used as is reasonably necessary to identify the product or
service;” and (3) “the user must do nothing that would, in
conjunction with the mark, suggest sponsorship or
endorsement by the trademark holder.” 49 For example, when
former Playboy Playmate of the Year, Terri Welles, used the
words “Playmate of the Year” to describe herself on her
website, the court upheld the use as fair under the nominative
fair use doctrine, because the words sought only “to identify
46
See discussion infra Part III.B.
See 2 MCCARTHY, supra note 3, § 11:45 (discussing the distinctions
between statutory and nominative fair use).
48
See New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302, 308 (9th
Cir. 1992).
49
Id.
47
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Welles as a past . . . ‘Playmate of the Year’” and not to
“imply . . . current sponsorship or endorsement by [Playboy].” 50
Nominative fair use appears in many different forms.
In addition to the referential use in the Terri Welles case and
the comparative advertising in the “Brand X” example,
nominative fair use also arises in promotional use and parody.
An example of promotional use includes the sale of a t-shirt by
a third party bearing a trademark such as a sports team.
Danish band Aqua’s infamous song entitled Barbie Girl is a
good example of parody. 51 Courts have often wrestled with how
to handle nominative fair use claims, particularly in the area of
In parody, courts have
parody and promotional use. 52
consistently agreed that, in order to be successful, a parody
must convey two conflicting messages: that it actually is the
original, but also that it is not the original but rather a
parody. 53 This creates an obvious conflict in policy, because the
more successful the parody, the more confused a consumer will
be at first glance. Therefore, nominative fair use raises similar
problems as that of statutory fair use in that courts must
create their own rules to determine how confusion relates to
the fair use defense. The questionable relationship between
confusion and the fair use defense created a division of
interpretations amongst the circuit courts. 54
C.
The Lead-Up to KP Permanent
Prior to the Supreme Court’s decision in KP Permanent,
the circuit courts disagreed on the significance of likely
50
Playboy Enters. v. Welles, 279 F.3d 796, 800-02 (9th Cir. 2002).
AQUA, Barbie Girl, on AQUARIUM (MCA Records 1997).
52
In the promotional use line of cases, there are clearly two schools of
thought. One approach finds infringement even when no confusion as to source exists.
See Boston Prof’l Hockey Ass’n v. Dallas Cap & Emblem Mfg., 510 F.2d 1004, 1011 (5th
Cir. 1975) (holding that patches sold by a sporting goods store bearing the insignia of a
professional sports team constituted infringement even though consumers purchased
the patches to show allegiance and not because of their source). The other approach to
promotional use assesses whether consumers view the use of the trademark as a source
identifier to determine whether confusion exists. See Int’l Order of Job’s Daughters v.
Lindeburg & Co., 633 F.2d 912, 919 (9th Cir. 1980) (holding that jewelry bearing the
trademark of a young women’s fraternal organization did not constitute infringement
because purchasers did not see the trademark as identifying source). Parody is equally
conflicting.
53
Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, 886 F.2d 490,
494 (2d Cir. 1989). (noting that “[c]onflict between . . . policies is inevitable in the
context of parody, because the keystone of parody is imitation”).
54
See discussion infra Part I.C.
51
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confusion as it pertains to a fair use defense. 55 The Second
Circuit represented one point of view, holding that fair use is
an absolute defense to infringement regardless of the confusion
that results. 56 The Ninth Circuit required a defendant to prove
the absence of confusion and found that a failure to do so
diminished the likelihood of a fair use claim to prevail. 57
Amongst the other circuits, both the Fifth and Sixth Circuits
held that any likelihood of confusion bars the fair use defense, 58
while the Fourth and Seventh Circuits held that fair use could
succeed even in the face of likely confusion. 59 Under the Ninth
Circuit’s approach, the owner of an ice cream shop who
advertises that his ice cream is “tasty” cannot succeed on a fair
use defense against Tasti-D-Lite unless he or she proves that
consumers do not confuse his goods with those from Tasti-DLite. In the Second Circuit, the fair use defense could succeed
in this example even if Tasti-D-Lite were able to prove that
nearly all ice cream consumers were confused by the other
store’s advertisement. Regardless of the circuits’ conflicting
interpretations of the relevant provisions of the Lanham Act,
the statute gives no indication as to how much confusion is too
much. 60 The Supreme Court had yet to address this issue
either. In fact, the significance of confusion in a fair use
defense provided the Court with its justification for granting
certiorari. 61
55
The views of the Ninth and Second Circuits lay at the heart of the circuit
split. The Ninth Circuit represented the view that any confusion would defeat a
statutory fair use defense. See KP Permanent Make-Up, Inc. v. Lasting Impression I,
Inc., 328 F.3d 1061, 1072 (9th Cir. 2003), vacated, 543 U.S. 111 (2004). The Second
Circuit opposed this view, finding that fair use is a defense to liability even if there is a
likelihood of confusion. See Cosmetically Sealed Indus., Inc. v. Chesebrough-Pond’s
USA Co., 125 F.3d 28, 30 (2d Cir. 1977). Although the circuit split that led to KP
Permanent did not involve nominative fair use claims, courts have shown equal
disagreement with the relationship of confusion in the nominative fair use context. See
supra notes 52-53 and accompanying text.
56
Cosmetically Sealed, 125 F.3d at 30 (holding that any resulting confusion
from alleged infringement is inherent in the risk that plaintiff took in selecting the
descriptive term, and therefore, does not bar the fair use defense).
57
KP Permanent, 328 F.3d at 1072.
58
See PACCAR Inc. v. TeleScan Technologies, L.L.C., 319 F.3d 243, 256 (6th
Cir. 2003); Zatarains Inc. v. Oak Grove Smokehouse, 698 F.2d 786, 796 (5th Cir. 1983).
59
See Shakespeare Co. v. Silstar Corp. of Am., 110 F.3d 234, 243 (4th Cir.
1997); Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055, 1059 (7th Cir.
1995).
60
See 15 U.S.C. § 1115(b)(4) (2000).
61
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111,
116 (2004) (granting certiorari “to address a disagreement among the Courts of
Appeals on the significance of likely confusion for a fair use defense to a trademark
infringement claim”).
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In the months before the Court’s decision, scholars
speculated about how the Court would rule, and the
implications different rulings would create. 62 Most thought
that the Court would side with the Second Circuit’s approach
in allowing confusion to exist in a fair use defense. 63 Others
foresaw the danger a ruling siding with the Ninth Circuit could
create. 64 As one scholar noted, by affirming the Ninth Circuit’s
holding, “[s]ummary judgment would rarely be granted when a
fair use defense is asserted because the defendant would have
to disprove likelihood of confusion – a fact-intensive inquiry
that is typically part of the plaintiff’s case.” 65 This could either
preclude summary judgment altogether or defeat its purpose in
avoiding the fact-intensive inquiries of litigation when a
defendant asserts fair use. 66
D.
The KP Permanent Case
1. Background and Procedural History
With the legal landscape ripe for change, the basis for
KP Permanent arose as follows. Petitioner KP Permanent
Make-Up, Inc. (“KP”) and Respondent Lasting Impression I,
Inc. (“Lasting Impression”) both manufactured and sold
permanent makeup, “a mixture of pigment and liquid for
injection under the skin to camouflage injuries and modify
nature’s dispensations,” and in doing so, both used the term
“microcolor” in marketing their products. 67 In 1992, Lasting
Impression federally registered a trademark with the words
62
See generally Lynda M. Braun, Fair Is Fair, But Is It Enough?, 4 IP LAW &
BUS. 54 (2004); Graeme B. Dinwoodie, The Trademark Jurisprudence of the Rehnquist
Court, 8 MARQ. INTELL. PROP. L. REV. 187, 208-10 (2004); David S. Welkowitz, The
Supreme Court and Trademark Law in the New Millennium, 30 WM. MITCHELL L. REV.
1659, 1697-1700 (2004).
63
See, e.g., Dinwoodie, supra note 62, at 208 (predicting that “the Court will
find that the availability of a fair use defense is not conditioned on there being no
likelihood of confusion”).
64
See, e.g., Braun, supra note 62 (speculating on the dangers of affirming the
Ninth Circuit’s opinion).
65
Id.
66
To disprove confusion, a defendant “would have to conduct a survey and/or
go to trial to prove an absence of likelihood of confusion.” Id. This would create suits
that are “longer and more costly.” Id.
67
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111,
114 (2004). The Court noted that both used the term “as one word or two, singular or
plural.” Id.
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“Micro Colors” written in a small graphic. 68 KP, however,
continued to use the word “microcolor” to describe its goods,
and, in response to a ten-page advertising brochure put out by
KP in 1999, Lasting Impression requested that KP discontinue
its use of the term. 69 This led to a lawsuit in which Lasting
Impression alleged trademark infringement, among other
claims, and KP asserted the statutory fair use defense. 70 The
district court granted KP’s motion for summary judgment,
finding that KP’s use of “microcolors” was fair, but declined to
address the question of whether confusion may result. 71 On
appeal, the Ninth Circuit reversed, criticizing the lower court’s
failure to address the issue of confusion, and remanded to
determine whether a likelihood of confusion existed. 72 The
Ninth Circuit also appeared to place the burden of proof as to
confusion upon KP. 73 The Supreme Court granted KP’s petition
for certiorari to address the disagreement among the circuit
courts on the relevance of likely confusion to a fair use defense
and to determine which party bears the burden in proving
confusion or the absence thereof. 74
2. The Supreme Court’s Decision
Justice Souter delivered the opinion for the unanimous
Supreme Court, holding that the party claiming fair use does
not bear the burden of negating the likelihood of confusion. 75
This did not come as a surprise, since the Ninth Circuit stood
alone in suggesting that the defendant bears that burden. 76 In
68
Id. at 114-15.
Id. at 115.
70
Id.
71
KP Permanent Make-Up, Inc. v. Lasting Impression, Inc., No. CV-0000276-GLT (C.D. Cal. May 16, 2001). Author’s note: There is some confusion, no pun
intended, as to the full name of Lasting Impression. While at the circuit court and
Supreme Court levels, they are referred to as “Lasting Impression I, Inc.,” at the
district court level, they are referred to as “Lasting Impression, Inc.”
72
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 328 F.3d 1061,
1072-73 (9th Cir. 2003), vacated, 543 U.S. 111 (2004).
73
Id. at 1072 (stating that “KP can only benefit from the fair use defense if
there is no likelihood of confusion between KP’s use of the term ‘micro color’ and
Lasting’s mark”).
74
KP Permanent, 543 U.S. at 116 (granting certiorari “to address a
disagreement among the Courts of Appeals on the significance of likely confusion for a
fair use defense to a trademark infringement claim”).
75
Id. at 112 (noting that the Lanham Act “places a burden of proving
likelihood of confusion (that is, infringement) on the party charging infringement”).
76
KP Permanent, 328 F.3d at 1072.
69
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answering the more important question of the relationship of
confusion to the fair use defense, 77 Justice Souter created,
ironically enough, greater confusion for lower courts addressing
the statutory fair use defense. 78 The Court did make clear that
fair use could prevail in the face of confusion but gave no
guidance as to just how much confusion would defeat the
defense of fair use. 79 In addition, the Court acknowledged that
lower courts may consider likelihood of confusion when
determining whether a use is fair. 80 It is also worth noting that
the Court did not give any indication as to whether its analysis
was applicable to nominative fair use. 81 Given this backdrop,
the Court left open the door for the circuit courts to create their
own balancing tests for determining the success or failure of a
fair use defense when faced with a likelihood of confusion.
E.
Fair Use in the Post-KP Permanent World
In the first year after the Supreme Court’s decision in
KP Permanent, only a few courts have addressed fair use
claims, and these decisions demonstrate the lack of guidance
that the Court’s decision provided for the lower courts. 82 While
courts currently recognize that the plaintiff bears the burden in
proving a likelihood of confusion and that fair use can exist in
the face of confusion, 83 the role that confusion plays in a fair
use defense, particularly in the nominative fair use context, 84
has left courts without direction.
77
KP Permanent, 543 U.S. at 120-23.
See discussion infra Part I.E.
79
KP Permanent, 543 U.S. at 123 (holding that while “mere risk of confusion
will not rule out fair use, we think it would be improvident to go further in this case”).
80
Id. at 115 n.3 (refusing to address nominative fair use because it is not
“relevant to the question before us”).
81
For one case which discusses the effect of KP Permanent on a nominative
fair use case, see Century 21 Real Estate Corp. v. Lendingtree, Inc., 425 F.3d 211 (3d
Cir. 2005). See also discussion infra Part I.E.
82
This note will discuss three cases which provide particularly good
examples of the problems created by the Supreme Court’s decision in KP Permanent.
See discussion infra notes 85-107 and accompanying text.
83
See, e.g., KP Permanent Make-up, Inc. v. Lasting Impression I, Inc., 408
F.3d 596, 607 (9th Cir. 2005) (recognizing that a defendant raising the fair use defense
“has no independent burden to negate the likelihood of any confusion” and that “fair
use can occur along with some degree of confusion”) (quoting KP Permanent, 543 U.S.
at 123-24); New York Mercantile Exch., Inc. v. Intercontinentalexchange, Inc., 389 F.
Supp. 2d 527, 546 (S.D.N.Y. 2005) (same).
84
See, e.g., Century 21, 425 F.3d at 214 (3d Cir. 2005) (addressing a
nominative fair use claim after KP Permanent and determining “the extent to which its
reasoning applies”).
78
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On remand, the Ninth Circuit Court of Appeals
reassessed the merits of KP’s fair use claim but again denied
their motion for summary judgment. 85 Even after the Supreme
Court had vacated the Ninth Circuit’s decision, the lower court
came to the exact same conclusion, 86 demonstrating just how
much leeway the Supreme Court had left for lower courts to
work with. In fact, with regards to how much confusion
precludes the fair use defense, the Ninth Circuit expressly
recognized that the Supreme Court gave lower courts the
authority to determine the relationship between the two. 87 The
circuit court then proceeded to address both the likelihood of
confusion and the fair use defense 88 and found that the jury
should consider likelihood of confusion when addressing the
fairness of the use. 89 Therefore, the court again concluded that
the district court’s granting of KP’s motion for summary
judgment was improper. 90
The Ninth Circuit’s decision creates a great problem for
judicial efficiency. Since a plaintiff must prove some material
issue of fact as to the likelihood of confusion before a defendant
asserts fair use, 91 there will never be an occasion to grant a
defendant summary judgment on a fair use claim under this
approach. In other words, because a plaintiff has, in theory,
already established a genuine issue of material fact as to
confusion by the time a defendant asserts fair use, there will
always be a genuine issue of material fact in a fair use claim.
In another recent case, New York Mercantile Exchange,
Inc. v. Intercontinentalexchange, Inc., 92 the Southern District of
New York was given the opportunity to offer its interpretation
of “classic” fair use after the Supreme Court’s decision in KP
Permanent.
That case involved, among many claims,
85
KP Permanent, 408 F.3d at 609.
Id.
87
Id. at 607 (stating that the issue of how much confusion precludes the fair
use defense “was left for the consideration of the Ninth Circuit in this case”).
88
Id. at 608-09. The court held that “the degree of consumer confusion
remains a factor in evaluating fair use.” Id. at 609.
89
Id. (finding likelihood of confusion “[a]mong the relevant factors for
consideration by the jury in determining the fairness of the use”).
90
Id. Author’s note: The district court has yet to hear this case on remand as
of the writing of this note.
91
See supra note 41 and accompanying text. See also KP Permanent MakeUp, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 120 (2004) (stating that “it is only
when a plaintiff has shown likely confusion by a preponderance of the evidence that a
defendant could have any need of an affirmative defense”).
92
389 F. Supp. 2d 527 (S.D.N.Y. 2005).
86
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FAIR USE IN THE POST-KP PERMANENT WORLD
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allegations of trademark infringement to which the defendant
asserted the classic fair use defense. 93 New York Mercantile
Exchange (“NYMEX”), a commodities futures exchange,
brought a suit against Intercontinentalexchange (“ICE”), an
online competitor, for ICE’s unauthorized use of NYMEX’s
service marks. 94 NYMEX asserted that ICE could not claim
fair use in the face of confusion, apparently overlooking the
Supreme Court’s decision in KP Permanent. 95 Oddly enough,
NYMEX had never offered any evidence to allege actual
confusion or even a likelihood of confusion. 96 The court granted
ICE’s motion for summary judgment due to the lack of
confusion, and never reached the merits of the fair use claim. 97
In any event, this opinion still bears some significance on the
state of classic fair use following KP Permanent. While the
Southern District of New York correctly concluded that fair use
could co-exist with confusion, the court seemed to suggest that
if a defendant establishes fair use on the merits, any confusion
is irrelevant. 98
Finally, in Century 21 Real Estate Corporation v.
Lendingtree, Inc., 99 the Third Circuit Court of Appeals offered
its interpretation of the Supreme Court’s decision in KP
Permanent as it relates to nominative fair use. The Third
Circuit adopted an original two-step approach to nominative
fair use cases quite similar to the approach followed in the
“classic” fair use cases. 100 The first step requires the plaintiff to
prove a likelihood of confusion from defendant’s use of the
93
Id. at 529.
Id.
95
Id. at 546 (noting that the cases upon which NYMEX relies
“predate . . . the Supreme Court’s decision in KP Permanent Make-Up”).
96
Id. (recognizing that “NYMEX has not raised any issue of material fact
that a likelihood of confusion exists” and “offered no evidence [of] actual customer
confusion”) (emphasis added).
97
Id.
98
See New York Mercantile Exch., 389 F. Supp. 2d at 545 (stating that
NYMEX’s assertion that fair use cannot exist in the face of confusion is “wrong as a
matter of law”). It is questionable as to how the court would have ruled if faced with
evidence of confusion as it did make sure to point out that no confusion was alleged nor
did any exist. Id. at 546. Nonetheless, the language in this portion of the opinion
suggests that the court had no reservations about upholding a use as fair in the face of
confusion. Id. at 545.
99
425 F.3d 211 (3d Cir. 2005).
100
Id. at 222 (“Today we adopt a two-step approach in nominative fair use
cases.”).
94
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mark. 101 Once the plaintiff meets this burden, the defendant
can assert fair use, which the court analyzes under the threepronged nominative fair use test. 102 The dissenting judge in
this case found the majority’s new test to create too heavy a
burden on the defendant, as he would likely bear the burden of
negating confusion. 103 This opinion also found critics amongst
some of intellectual property law’s foremost legal scholars. 104 J.
Thomas McCarthy, author of one of the leading treatises on
trademark law and founder of the McCarthy Institute for
Intellectual Property and Technology Law at the University of
San Francisco School of Law, commented, “I’ve spent many
decades studying trademark law, and this is one of the most
confusing cases I’ve seen . . . .” 105 Since nominative fair use is
entirely judge-made law, these cases provide the sole
framework to such claims and bear great significance. The
Third Circuit, while well-intentioned, may not have put forth
the best approach.
The only other case to address nominative fair use after
the Court’s decision in KP Permanent did not alter the prior
nominative fair use test 106 as defined in the Ninth Circuit. 107
All of these cases following KP Permanent demonstrate the
need for the Court or Congress to clarify the relationship
between confusion and fair use in trademark law.
II.
COPYRIGHT AND FAIR USE
Similar to trademark law, courts in copyright cases
have historically protected certain unauthorized but fair uses
of protected material from claims of infringement. 108 Copyright
101
Id. While the plaintiff must show a likelihood of confusion, the court
suggested altering the traditional test for likelihood of confusion by eliminating certain
factors of the test “that do not ‘fit’ in the nominative use context.” Id.
102
Id. For the three factors of the nominative fair use test, see New Kids on
the Block v. News Am. Publ’g, Inc., 971 F.2d 302, 308 (9th Cir. 1992).
103
Century 21, 425 F.3d at 233 (Fisher, J., dissenting) (concluding that the
majority’s test “places on defendant the burden of negating likely confusion”).
104
See G.M. Filisko, Trademark Ruling Creates Confusion, 4-43 ABA
JOURNAL E-REPORT 2 (Oct. 21, 2005).
105
Id.
106
See Ty, Inc. v. Publ’ns Int’l, Ltd., No. 99-C-5565, 2005 WL 464688, at *6
(N.D. Ill. Feb. 25, 2005) (noting that even after KP Permanent, “[t]he New Kids test
provides sound criteria for assessing when nominative use is fair or unfair, despite a
likelihood of confusion among consumers).
107
See New Kids on the Block, 971 F.2d at 308.
108
For what is regarded as, perhaps, the first discussion of a fair use claim in
copyright, see Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C.D. Mass. 1841) (No. 4,901).
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law seeks to protect “original works of authorship” such as a
song, a book, or a photograph. 109 The roots of this protection
are well-grounded in United States history, as the Constitution
empowers Congress “[t]o promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries.” 110 In order for a work to be protected, it must
consist of some amount of originality and creativity. 111
Copyright infringement requires the exact copying of a
protected work or proof of substantial similarity and access to
the copyrighted work. 112
The term “fair use” made its first appearance in a
copyright opinion in 1869, when an author borrowed material
from an earlier publication of a work while scripting a new
edition. 113 For over 100 years, the fair use doctrine existed
entirely in judge-made law. In the mid-1970s, Congress
codified the doctrine of fair use in the Copyright Act of 1976. 114
The Copyright Act permits fair use to operate as an affirmative
defense to a claim of infringement if, after looking at four
statutory factors and balancing their equities, the court deems
the use as fair. 115 The factors to which the court must look are:
(1) the purpose and character of the use; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the
portion used; and (4) the effect of the use on the potential
market or value of the copyrighted work. 116 These four factors
are not exclusive and often overlap when courts decide whether
use is fair. Although there is no prescribed formula to
determine fair use, some uses garner a stronger likelihood of
success than others in a fair use claim. 117
In Folsom, an author of a biography on President Washington had borrowed material
from an earlier work, mainly letters written by George Washington himself. Id. at 343.
The court asked “whether this is a justifiable use of the original materials.” Id. at 348.
In determining whether the use was fair, Justice Story looked to “the nature and
objects of the selections made, the quantity and value of the materials used, and the
degree in which the use may prejudice the sale, or diminish the profits, or supersede
the objects, of the original work.” Id.
109
17 U.S.C. § 102(a) (2000).
110
U.S. CONST. art. I, § 8, cl. 8.
111
See Feist Publ’ns, Inc. v. Rural Tel. Serv., Inc., 499 U.S. 340, 345 (1991).
112
Lipton v. Nature Co., 71 F.3d 464, 470-71 (2d Cir. 1995).
113
Lawrence v. Dana, 15 F. Cas. 26, 44 (C.C.D. Mass. 1869) (No. 8,136).
114
17 U.S.C. § 107 (2000).
115
Id.
116
Id.
117
See discussion infra Part II.A and Part II.B.
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Purpose and Character of Use
Under the first factor of the fair use test, courts look at
the purpose and character of the use. 118 Alleged infringing uses
can be divided into two sub-categories: (1) transformative or
non-transformative use; and (2) commercial or non-commercial
use. 119 Courts generally do not extend the fair use doctrine to
commercial, non-transformative uses, because such uses
contain no originality and seek to reap where one has not
On the other hand, if a non-commercial use
sown. 120
significantly transforms a work, courts will generally uphold
the use as fair. 121 A more difficult situation arises when use is
transformative but commercial, or non-transformative but noncommercial, and courts have faced a significantly greater
challenge in determining whether use is fair in these
situations.
In Campbell v. Acuff-Rose Music, Inc. (“Acuff-Rose”), the
United States Supreme Court held that although the rap group
2 Live Crew created a parody of Roy Orbison’s “Oh, Pretty
Woman” for commercial gain, they had significantly
transformed the song, and therefore, fair use could prevail. 122
The holders of the copyright to the famous Roy Orbison song
had sued 2 Live Crew, alleging infringement, suggesting that
the commercial use of the song constituted a presumptively
unfair use of a copyrighted work. 123 Although the Court of
Appeals concluded that the fair use defense was barred by the
song’s commercial character and excessive borrowing, 124 the
Supreme Court reversed with Justice Stevens writing the
opinion for a unanimous Court. 125
118
17 U.S.C. § 107(1) (2000).
See 17 U.S.C. § 107(1) (2000) (assessing “whether such use is of a
commercial nature”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)
(stating that in assessing the purpose of the use, courts should also consider “whether
and to what extent the new work is ‘transformative’”).
120
See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449
(1984) (noting that if an alleged infringer copied a protected work for commercial gain,
“such use would presumptively be unfair”).
121
See Acuff Rose, 510 U.S. at 579 (stating that “the more transformative the
new work, the less will be the significance of other factors . . . that may weigh against a
finding of fair use”).
122
Acuff-Rose, 510 U.S. at 594.
123
Id. at 572-74.
124
Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1439 (6th Cir. 1992),
rev’d by, 510 U.S. 569 (1994).
125
Acuff-Rose, 510 U.S. at 594.
119
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In analyzing the first factor of the fair use defense,
Justice Stevens drew implicitly upon free speech principles,
ignoring the strong sexual content and illicit language in 2 Live
Crew’s song. 126 Although the lyrics of 2 Live Crew’s song
contained “degrading taunts, a bawdy demand for sex, and a
sigh of relief from paternal responsibility” which would surely
make the members of the Court cringe, they nonetheless
upheld the use as fair. 127 Warning that “[t]his is not, of course,
to say that anyone who calls himself a parodist can skim the
cream and get away scot free,” Justice Stevens rested the
pinnacle of the Court’s holding on the transformative character
of the use, since 2 Live Crew “departed markedly” from the
lyrics in the Roy Orbison classic. 128
In a similarly murky area of the first factor of the fair
use test lies the non-transformative, yet non-commercial use,
such as that in Sony Corporation of America v. Universal City
Studios, Inc. (“Sony”), which involved the introduction of the
home videotape recorder in America. 129 In Sony, copyright
holders in the television industry brought a suit against the
Since the
manufacturers of home videotape recorders. 130
purchasers of such devices could use them to record protected
works, the copyright holders opposed the sale of the devices,
alleging infringement, based on the non-transformative use. 131
The Court acknowledged that if consumers used the devices to
make a profit, the fair use defense would not apply. 132 The
Court, however, characterized the use as non-commercial since
most purchasers of the device simply sought to watch their
favorite programs at different times. 133 Arguably, the Court
could have found the use commercial, but chose instead to focus
on the time-shifting, 134 which held no commercial purpose. 135
126
Id. at 582 (stating that “[w]hether . . . parody is in good taste or bad does
not and should not matter to fair use”).
127
See id. at 583.
128
Id. at 589 (stating that “2 Live Crew not only copied the first line of the
original, but thereafter departed markedly from the Orbison lyrics for its own ends”).
129
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 417 (1984).
130
Id.
131
Id. at 420.
132
Id. at 449 (stating that “to make copies for a commercial or profit-making
purpose . . . would presumptively be unfair”).
133
Id. (characterizing “time-shifting for private home use . . . as a
noncommercial, nonprofit activity”).
134
Time-shifting refers to the idea that users of a home video recording device
simply shift the time at which they watch programs. Id. at 421.
135
See Sony, 464 U.S. at 449-50.
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Both the Court’s decision in Acuff-Rose and Sony
demonstrated the complexity in analyzing fair use claims. The
Court indicated that they would not create any per se rules for
determining whether use is fair. 136 In Acuff-Rose, even a
commercial use could potentially survive a claim of
infringement, 137 while in Sony, a non-transformative use had
equivalent success. 138
B.
The Nature of the Copyrighted Work
Under the second factor of the fair use test, courts
examine the nature of the copyrighted work. 139 Similar to the
first factor, courts divide the copyrighted work into two subcategories: (1) factual or fictional; and (2) published or
unpublished. 140 Use of factual, published works, such as the
news, garners the strongest likelihood of success on a fair use
defense. 141 At the opposite end of the spectrum, use of fictional,
published works typically fails on a fair use defense. 142 The
question of fair use, however, becomes more difficult when the
Court faces factual, yet unpublished accounts.
In Harper & Row Publishers, Inc. v. Nation Enterprises
(“Harper & Row”), authors of the soon-to-be-published memoirs
of former President Gerald Ford brought a suit against a
magazine that had published portions of the work after
receiving an illicit copy from an undisclosed source. 143 Although
the District Court rejected the magazine’s fair use claim, the
136
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (declaring
that fair use “is not to be simplified with bright-line rules”); Sony, 464 U.S. at 448
(referring to copyright fair use as an “equitable rule of reason” (citation omitted)).
137
Acuff-Rose, 510 U.S. at 589.
138
Sony, 464 U.S. at 456.
139
17 U.S.C. § 107(2) (2000).
140
See Stewart v. Abend, 495 U.S. 207, 237-38 (1990) (recognizing the
distinction between factual and fictional works as highly relevant to a fair use
analysis); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985)
(noting that whether or not a work is published or unpublished “is a critical element of
its ‘nature’” (citations omitted)).
141
See, e.g., Abend, 495 U.S. at 237 (stating that “fair use is more likely to be
found in factual works than in fictional works”).
142
See, e.g., Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132,
143-44 (2d Cir. 1998) (finding that “the scope of fair use is somewhat narrower with
respect to fictional works”); see also Twin Peaks Prods., Inc. v. Publications Int’l, Ltd.,
996 F.2d 1366, 1376 (2d Cir. 1993) (stating that the second factor “favor[s] . . . creative
and fictional work[s]”).
143
Harper & Row, 471 U.S. at 542.
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Second Circuit upheld the use as fair. 144 Justice O’Connor,
writing for the majority, reversed the decision of the Second
Circuit. 145 In analyzing the nature of the copyrighted work,
Justice O’Connor recognized the additional concerns when
considering a fair use claim dealing with unpublished works. 146
In doing so, she acknowledged the value in the exclusive rights
a publisher may have prior to publication. 147 Ultimately, the
Court found that the magazine’s unauthorized and
“clandestine” use infringed the copyright owner’s interests so
much that the Court could not characterize the use as fair. 148
Again, the Court in Harper & Row seemed to focus on
the freedom of expression values inherent in copyright law. 149
While the magazine had the right to publish material, such
slavish copying was impermissible. 150 In addition, since the
original work had yet to be published, the Court implicitly
recognized the authors’ freedom of expression rights and the
infringement that occurs when one “free-rides” on another’s
original work. 151
144
Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d 195, 208 (2d
Cir. 1983), rev’d by, 471 U.S. 539 (1985).
145
Harper & Row, 471 U.S. at 569.
146
Id. at 564 (stating that “the scope of fair use is narrower with respect to
unpublished works”).
147
Id. (noting the importance of “[t]he right of first publication” and “the
choices of when, where, and in what form first to publish a work”).
148
Id. (denying the fair use defense since the use “so clearly infringes the
copyright holder’s interests in confidentiality and creative control”).
149
For an example of the freedom of expression values found inherent in the
fair use defense to copyright infringement, see Wainwright Securities, Inc. v. Wall
Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977) (noting that “[c]onflicts between
interests protected by the first amendment and the copyright laws thus far have been
resolved by application of the fair use doctrine”). The Wainwright court went on
further to state that “[w]hat is protected is the manner of expression, the author’s
analysis or interpretation of events, the way he structures his material and marshals
facts, his choice of words, and the emphasis he gives to particular developments.” Id at
95-96. See also Los Angeles News Serv. v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992)
(stating that “First Amendment considerations are relevant in determining whether
the purpose of copying a work and the nature of the work copied militate in favor of
finding a given use of a particular work to be a ‘fair use’”).
150
Harper & Row, 471 U.S. at 565 (stating that “the fact that a substantial
portion of the infringing work was copied verbatim is evidence of the qualitative value
of the copied material”).
151
Id. (criticizing “the plagiarist who seeks to profit from marketing someone
else’s copyrighted expression”).
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Amount and Substantiality of the Portion Used
The third factor of the fair use defense to copyright
infringement requires the court to analyze the amount and
substantiality of the portion used. 152 While again, there are no
per se rules as to what constitutes too much copying, the courts
generally view this factor as heavily related to the purpose and
character of the use. 153 The analysis under the third factor
differs amongst parodies, books, and other areas in which one
asserts a fair use defense. 154 Even the reproduction of an entire
work will not preclude a fair use defense in some situations,
such as the time-shifting in Sony. 155 Similarly, courts might
permit substantial quotations in a book review or a newscast
recapping a speech, but not in an exclusive, yet-to-be published
work. 156
In parody, the third factor also implicates the fourth
factor, 157 since the borrowing inherent in parody may affect the
market or value of the copyrighted work. 158 The Court in AcuffRose recognized the difficulty posed by parody, because parody
must remind the listener or reader of the original in order to
succeed. 159 Therefore, although a successful parody appears to
patently fail the third factor of the test, if one “depart[s]
markedly” and adds other “distinctive sounds,” a court may
characterize a parody as a fair use. 160
152
17 U.S.C. § 107(3) (2000).
See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586-87 (1994)
(stating that in analyzing the third factor, “attention turns to the persuasiveness of a
parodist’s justification for the particular copying done, and the enquiry will harken
back to the first of the statutory factors, for . . . the extent of permissible copying varies
with the purpose and character of the use”).
154
See id. (analyzing the third factor in parody by “turn[ing] to the
persuasiveness of a parodist’s justification for the particular copying done). But cf.
Harper & Row, 471 U.S. at 565-66 (analyzing the third factor in both qualitative and
quantitative terms in the publishing context).
155
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50
(1984) (noting that the full reproduction of protected works “does not . . . militat[e]
against a finding of fair use” when involving non-commercial use).
156
Harper & Row, 471 U.S. at 564 (noting that “substantial quotations might
qualify as fair use in a review of a published work or a news account of a speech”).
157
For a greater discussion of the fourth factor, see discussion infra Part II.D.
158
Acuff-Rose, 510 U.S. at 587 (stating that the third factor “reveal[s] the
degree to which the parody may serve as a market substitute for the original or
potentially licensed derivatives”).
159
Id. at 588 (stating that “[p]arody’s humor . . . springs from recognizable
allusion to its object through distorted imitation”).
160
Id. at 589.
153
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The Effect of the Use on the Potential Market or Value of
the Copyrighted Work
The final factor of the fair use test in copyright law
analyzes the effect of the use on the potential market or value
of the copyrighted work. 161 Traditionally, courts have placed
the greatest weight on the fourth factor. 162 Courts typically
limit fair use to copying which does not significantly affect the
market of the copied work. 163 According to the Second Circuit,
this fourth factor should strike a balance between the benefits
to the public in permitting the use and the personal gains the
copyright owner may receive in denying the use. 164 Generally,
if an alleged infringing use significantly impacts or “corners”
the market, the use will fail the fourth factor. 165
The facts of Harper & Row offered the Court an ideal
opportunity to illustrate a use that fails the fourth factor. 166
Following Nation Enterprise’s unauthorized use of Gerald
Ford’s soon-to-be published memoirs, Time magazine cancelled
its exclusive deal with the publishers and refused to pay the
$12,500 to which the two parties had already agreed upon. 167
Presented with this evidence of the direct effect the infringing
use had on the market, the Court stated, “[r]arely will a case of
copyright infringement present such clear-cut evidence of
161
17 U.S.C. § 107(4) (2000).
4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §
13.05[A][4] (2005) [hereinafter NIMMER ON COPYRIGHT] (stating that the fourth factor
often “emerges as the most important, and indeed, central” factor in fair use cases
(citations omitted)).
163
1 id. § 1.10[D] (stating that fair use is limited to “copying by others that
does not materially impair the marketability of the work that is copied” (citations
omitted)).
164
MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981). The MCA court also
noted that “[t]he less adverse effect that an alleged infringing use has on the copyright
owner’s expectation of gain, the less public benefit need be shown to justify the use.”
Id.
165
See, e.g., Iowa State Univ. Research Found., Inc. v. Am. Broad. Co., 621
F.2d 57, 62 (1980) (finding with respect to the fourth factor that “ABC did foreclose a
significant potential market . . . monopolized that market . . . [and] usurped an
extremely significant market”).
166
See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 567
(1985).
167
Id.
162
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actual damage.” 168 In denying Nation Enterprise’s fair use
defense, the Court relied heavily on this fourth factor. 169
Although the fair use doctrine requires courts to
examine all four factors of the test, courts often imply the
potentially dispositive effect of the fourth and final factor,
irrespective of the results of the other portions of the test. 170
Courts, however, must still rule on a case-by-case basis and
consider all factors. 171 In copyright cases, this test gives courts
significant guidance to address fair use claims in various
contexts.
Trademark law would benefit from similar
articulation by the courts.
III.
WHY TRADEMARK LAW CAN BORROW FROM COPYRIGHT
LAW
There are distinct differences between what copyright
and trademark law actually protect. 172 Similar motivations
behind the desire to protect both, however, justify the idea that
trademark law can borrow from copyright law. Not only does
protection of both of these types of intellectual property seek to
curb free-riding, 173 but it also creates economic incentives. 174 In
addition, protection attempts to balance the competing public
interests in fostering competition with the private interests in
168
Id.
See id. at 569 (stating that “a fair use doctrine that permits extensive
prepublication quotations from an unreleased manuscript . . . poses substantial
potential for damage to the marketability of first serialization rights in general”).
170
See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,
451 (1984) (stating that in the non-commercial context, fair use will fail if a copyright
holder demonstrates that the use “would adversely affect the potential market for the
copyrighted work”).
171
See, e.g., Lish v. Harper’s Magazine Found., 807 F. Supp. 1090, 1110-11
(S.D.N.Y. 1992) (fair use defense failed even though the fourth factor favored the
defendant); see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 594 (1994) (while
suggesting fair use on the first three factors, the Court remanded to allow the hole in
the evidence with respect to the fourth factor to “be plugged on remand”).
172
Copyright protects the more tangible rights in music, books, and works of
art. See 17 U.S.C. § 102(a) (2000). Trademark, in contrast, protects the intangible
right of goodwill associated with a trademark owner’s product or service. See 1
MCCARTHY, supra note 3, § 3:2.
173
See Lee B. Burgunder, Trademark and Copyright: How Intimate Should
the Close Association Become?, 29 SANTA CLARA L. REV. 89, 90 (1989) (stating that
intellectual property law is “intended to increase the creative and distributional
efficiency of market participants”).
174
See Park ‘N Fly, Inc. v. Dollar Park And Fly, Inc., 469 U.S. 189, 198 (1985)
(protecting trademarks “encourages producers to cultivate the goodwill associated with
a particular mark”); Stephen B. Thau, Copyright, Privacy, and Fair Use, 24 HOFSTRA L.
REV. 179, 180 (1995) (protecting copyrights “create[s] economic incentives for
creativity”).
169
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1689
protecting an individual’s property rights. 175 For example, if an
individual is granted no protection for a copyright or a
trademark, anyone can simply copy an artistic creation or
source-identifying word or symbol and share in the success of
its creator or owner. To avoid this free-riding, copyright and
trademark law grant certain protections to owners of
intellectual property. This, in turn, helps create economic
The law, however, moves
incentives to these owners. 176
cautiously not to over-protect these property rights, because
this could inhibit competition or freedom of expression. 177
Therefore, these protections are not limitless.
By creating the doctrine of fair use, both copyright and
trademark law limit their protections to help safeguard other
important societal values. 178 Both doctrines of fair use are
heavily intertwined with the First Amendment’s protection of
free speech. 179 Additionally, just as protecting intellectual
property creates market incentives, 180 limiting protection has a
similar economic rationale. 181 In copyright law, a significant
part of the fair use defense requires courts to examine the
effect the alleged infringing use may have on the potential
175
See ZOE HILDEN & BRIAN T. JAENICKE, FAIR USE OF TRADEMARKS: A LOOK
KP PERMANENT MAKE-UP, INC. V. LASTING IMPRESSION I, INC. AND ITS
IMPLICATIONS FOR TRADEMARK RIGHTS AND THE PUBLIC DOMAIN, at 3 (2005) (noting
that protecting intellectual property often creates “a struggle between competing public
interests – namely, consumer protection and incentives to social progress versus
competition and the free flow of information – as well as competing private interests –
namely, property rights versus individual free expression”).
176
See supra note 174.
177
See White v. Samsung Elecs. Am. Corp., 989 F.2d 1512, 1513 (9th Cir.
1993) (Kozinski, J., dissenting) (stating that “[o]verprotection stifles the very creative
forces [intellectual property is] supposed to nurture” (citations omitted)); see also
HILDEN & JAENICKE, supra note 175, at 1 (recognizing that “intellectual property rights
[are] an obstacle to free competition [and] a hindrance to the free flow of information
and ideas in the public domain as well as to the individual right to free expression”).
178
See 17 U.S.C. § 107 (2000); 15 U.S.C. § 1115(b)(4) (2000).
179
See Robert C. Denicola, Trademarks as Speech: Constitutional Implications
of the Emerging Rationale for the Protection of Trade Symbols, 1982 WIS. L. REV. 158,
207 (1982) (noting that “extensions of the trademark monopoly must be tempered by
the realization that unlimited control over the use of trade symbols will at times
interfere with the exercise of basic first amendment rights”); L. Ray Patterson, Free
Speech, Copyright, and Fair Use, 40 VAND. L. REV. 1, 36 (1987) (arguing that fair use is
“the most important and far reaching” free speech constraint on copyright protection).
180
See supra note 174.
181
See Thau, supra note 174, at 186 (arguing that the Supreme Court stresses
economic incentives when assessing fair use in copyright); see also HILDEN & JAENICKE,
supra note 175, at 7 (recognizing that Congress codified the concept of ‘classic fair use’
“[a]s a means of avoiding the danger that commonplace phrases might be adopted as
marks and become the exclusive property of private owners”).
AT THE
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market or value of the copyrighted work. 182 Likewise, in
trademark law, fair use allows competitors to use trademarks
in good faith in their true descriptive sense to avoid monopolies
on descriptive words which inhibit free competition. 183
This section will further explain the rationales behind
intellectual property protection and fair use in order to justify
incorporating principles of copyright’s fair use test into the
realm of trademark fair use. The last part of this section will
be devoted to the idea that trademarks, while designed to
identify source, have begun to do work they were not originally
meant to do. 184 For example, while at one time, a trademark
was stitched on the inside of a shirt collar, trademarks are now
often found as a part of the shirt itself, such as the Lacoste
crocodile, 185 and consumers desire a visible trademark as a sign
of status or style. 186 Although trademarks have traditionally
been considered a quasi-property right, and not a tangible
property right such as a copyright, these shifts might warrant
reconsideration of the protections of trademark law. 187
A.
Why Does the Law Protect Copyrights and Trademarks?
The protection of copyrights and trademarks serves
three main purposes: (1) to prohibit free-riding; 188 (2) to create
economic incentives; 189 and (3) to balance the competing public
182
See 17 U.S.C. § 107(4) (2000); see also Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 566 (1985) (stating that effect on the potential market is
“undoubtedly the single most important element of fair use”).
183
See 15 U.S.C. § 1115(b)(4) (2000).
184
See generally, Alex Kozinski, Trademarks Unplugged, 68 N.Y.U. L. REV.
960 (1993).
185
Most people immediately recognize a Lacoste shirt by the crocodile which
adorns the outside of the item. For further illustrations, see the Lacoste website,
http://www.lacoste.com (last visited Jan. 28, 2006).
186
See Kozinski, supra note 184, at 961 (recognizing the “growing tendency to
use trademarks . . . to enhance or adorn [products], even to create new commodities
altogether”).
187
Id. at 966 (arguing that this change should be confronted by amending the
Lanham Act).
188
See Burgunder, supra note 173, at 90 (stating that intellectual property
law is “intended to increase the creative and distributional efficiency of market
participants”).
189
See Park ‘N Fly, Inc. v. Dollar Park And Fly, Inc., 469 U.S. 189, 198 (1985)
(protecting trademarks “encourages producers to cultivate the goodwill associated with
a particular mark”); see also Thau, supra note 174, at 180 (protecting copyrights
“create[s] economic incentives for creativity”).
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and private interests inherent in both. 190 In 1946, Congress
enacted the Lanham Act 191 “to secure to the owner of [a
trademark] the goodwill of his business and to protect the
ability of consumers to distinguish among competing
producers.” 192 Although state protections existed previously, 193
Congress felt that national protection was warranted to foster
competition and ensure product quality by securing trademark
holders with the benefits of a good reputation. 194 At the most
basic level, these protections discouraged free-riders. 195
Without these protections, individuals could capitalize on their
competitors’ previously established goodwill. For example, if a
particular brand of shirt became popular, a competitor could
simply attach that name to his shirts and instantly create a
market for his goods. These protections also created an
economic incentive for a trademark owner to establish a strong
trade reputation and economic efficiency for consumers who
can easily identify quality through the use of trademarks. 196
Trademark law, however, must avoid overprotection which
might limit freedom of speech or hinder competition. 197
Generally speaking, the law disfavors monopolies, and if
protection is absolute, competition or free speech can suffer. 198
190
See HILDEN & JAENICKE, supra note 175, at 3 (noting that protecting
intellectual property often creates “a struggle between competing public interests –
namely, consumer protection and incentives to social progress versus competition and
the free flow of information – as well as competing private interests – namely, property
rights versus individual free expression”).
191
15 U.S.C. §§ 1051-1141n (2000).
192
Park ‘N Fly, 469 U.S. at 198 (citing S. REP. NO. 1333, 79th Cong. 2d Sess.,
at 3, 5 (1946)).
193
See Federal Trademark Act of 1905, 33 Stat. 724 (trademark protection
was a matter of state concern governed by the common law).
194
Park ‘N Fly, 469 U.S. at 198 (citing S. REP. NO. 1333, 79th Cong. 2d Sess.,
at 4 (1946)).
195
See 1 MCCARTHY, supra note 3, § 2:1 (stating that trademark is, in part,
based on “the plaintiff’s interest in not having the fruit of his labor misappropriated”).
196
See Park ‘N Fly, 469 U.S. at 198 (protecting a trademark “encourages
producers to cultivate the goodwill associated with a particular mark”); see also
William M. Landes & Richard A. Posner, The Economics of Trademark Law, 78
TRADEMARK REP. 267, 267 (1988) (concluding that “trademark law . . . can best be
explained on the hypothesis that the law is trying to promote economic efficiency”).
197
See supra note 190; see also 1 MCCARTHY, supra note 3, § 2:1 (noting that
trademark protection “has traditionally been a battleground for competing policies”).
198
See, e.g., In re Morton-Norwich Products, Inc., 671 F.2d 1332, 1343
(C.C.P.A. 1982) (stating that “[o]ne who seeks to register (or protect) a product or
container configuration as a trademark must demonstrate that its design is
‘nonfunctional’”); see also Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group,
886 F.2d 490, 494 (2d Cir. 1989) (construing the Lanham Act narrowly when the First
Amendment is implicated).
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Although copyright law protects a different type of
property, namely creative works such as songs or books, 199 the
principles behind protection are not all that different from
those of trademark law. Copyright law also seeks to curb freeriding “by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and
Discoveries.” 200 In doing so, copyright law creates strong
economic incentives to create original works by granting
authors a bundle of rights. 201 Again, similar to trademark law,
copyright law’s protections are not limitless and sometimes
yield to the protections of the First Amendment. 202
B.
Why Does the Law Limit Copyright and Trademark
Protection by Fair Use?
Both copyright and trademark law limit protections
through their respective doctrines of fair use. 203 In permitting
some unauthorized, but fair uses, both areas of intellectual
property law use similar economic efficiency 204 and free speech
rationales 205 to justify borrowing. In trademark law, when a
court determines that an alleged infringing use is fair, they
are, in essence, telling the mark owner that this infringement
will not cause unwarranted confusion and that barring the use
would foster unfair competition and hinder free speech. 206
Similarly, in copyright law, when a court determines that an
alleged infringing use is fair, they are telling the copyright
holder that the use furthers innovation as it does not intrude
199
17 U.S.C. § 102(a) (2000).
U.S. CONST. art. I, § 8, cl. 8.
201
See 17 U.S.C. § 106(1)-(3) (2000) (granting copyright holders the right to
reproduce their works, to prepare derivative works, and to distribute copies).
202
See Patterson, supra note 179, at 4 (arguing that “the copyright clause
limits the power of Congress to grant copyright because it embodies free speech
constraints”).
203
See 17 U.S.C. § 107 (2000); 15 U.S.C. § 1115(b)(4) (2000).
204
See Thau, supra note 174, at 186 (arguing that the Supreme Court stresses
economic incentives when assessing fair use in copyright); see also HILDEN & JAENICKE,
supra note 175, at 7 (noting that Congress codified the concept of ‘classic fair use’ “[a]s
a means of avoiding the danger that commonplace phrases might be adopted as marks
and become the exclusive property of private owners”).
205
See Denicola, supra note 179, at 207 (noting that “extensions of the
trademark monopoly must be tempered by the realization that unlimited control over
the use of trade symbols will at times interfere with the exercise of basic first
amendment rights”); Patterson, supra note 179, at 36 (arguing that fair use is “the
most important and far reaching” free speech constraint on copyright protection).
206
See discussion infra notes 208-14 and accompanying text.
200
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FAIR USE IN THE POST-KP PERMANENT WORLD
1693
too far into the original work and that barring the use would
again hinder free speech and have adverse economic effects. 207
In permitting fair use of another’s trademark, the
Lanham Act seeks to prohibit a trademark owner from having
the exclusive right in a descriptive term which others may use
to describe their goods. 208 The Supreme Court has long since
acknowledged that an “absolute prohibition” against using
another’s
trademark
would
result
in
undesirable
209
The statutory fair use defense recognizes
overprotection.
that the public should retain rights in the use of language. 210
The law seeks to carefully balance the monopoly created by
trademark protection with the protections of the First
Amendment. 211
That is not to say, however, that the protections of the
First Amendment alone justify a fair use defense. 212 While
trademark fair use certainly intertwines freedom of speech
concerns, a trademark owner’s rights need not always cease at
the door of the First Amendment. 213 On the other hand, certain
situations in trademark law directly implicate the First
Amendment. 214 It is behind these driving principles that fair
use in trademark exists.
Fair use in copyright was derived upon similar
principles, although its history runs much deeper. Upon
drafting § 107 of the Copyright Act of 1976, Congress
207
See discussion infra notes 215-26 and accompanying text.
Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1185 (5th Cir. 1980) (stating
that fair use “forbids a trademark registrant to appropriate a descriptive term for his
exclusive use and so prevent others from accurately describing a characteristic of their
goods”).
209
Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U.S. 554, 559 (1908)
(noting that such a restriction “would carry trademarks too far”).
210
Park ‘N Fly, Inc. v. Dollar Park And Fly, Inc., 469 U.S. 189, 215 (1985)
(Stevens, J., dissenting) (declaring that “[l]anguage, even in a commercial context,
properly belongs to the public” (citations omitted)).
211
Denicola, supra note 179, at 207 (stating that “extensions of the trademark
monopoly must be tempered by the realization that unlimited control over the use of
trade symbols will at times interfere with the exercise of basic first amendment
rights”).
212
See Mutual of Omaha Ins. Co. v. Novak, 836 F.2d 397, 402 (8th Cir. 1987)
(stating that “the protection afforded by the First Amendment does not give [an alleged
infringer] license to infringe [trademark] rights”).
213
Id. (explaining that trademark rights need not “yield to the exercise of
First Amendment rights under circumstances where adequate alternative avenues of
communication exist” (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 567 (1972))).
214
Denicola, supra note 179, at 207 (stating that “[w]hen the trademark is
utilized as a vehicle for the communication of ideas . . . constitutional interests can no
longer be ignored”).
208
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recognized the judicial doctrine of fair use as “one of the most
important and well-established limitations on the exclusive
right of copyright owners” and “an equitable rule of reason.” 215
Courts have acknowledged this principle since as early as the
nineteenth century when Justice Story declared that “[e]very
book in literature, science and art, borrows, and must
necessarily borrow, and use much which was well known and
used before.” 216 In codifying these longstanding principles,
Congress effectively protected an individual’s rights to free
expression with limitations.
The Supreme Court, in its application of the fair use
test, has often evoked principles of free speech. 217 Under the
first factor of the fair use test, 218 courts are typically more likely
to protect transformative uses, which both foster creativity
while at the same time protect free speech. 219 As the Court has
recently noted, copyright law must balance the different
interests at stake such as promoting creativity while still
protecting copyright holders’ rights. 220
Copyright fair use also examines the market effects
infringement may have, 221 as the fourth factor of the test
requires courts to look at the effect of the use upon the
potential market for or value of the copyrighted work. 222 The
first and second factors of the test also implicate these
concerns. 223 The analysis of the purpose and character of the
use looks at whether a use is commercial or non-commercial, 224
215
H.R. REP. NO. 94-1476, at 65 (1976), as reprinted in 1976 U.S.C.C.A.N.
5659, 5678-79.
216
Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4,436).
217
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994) (declaring
that “[w]hether . . . parody is in good taste or bad does not and should not matter to fair
use”).
218
17 U.S.C. § 107(1) (2000).
219
See discussion supra Part II.A.
220
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764,
2775 (2005) (describing copyright claims as “an exercise in managing the trade-off”
between “the respective values of supporting creative pursuits through copyright
protection and promoting innovation . . . by limiting the incidence of liability for
copyright infringement”).
221
See Thau, supra note 174, at 186 (suggesting that many of the Supreme
Court’s recent copyright decisions involving fair use “turned on the role that fair use
would play in copyright’s scheme of economic incentives”).
222
17 U.S.C. § 107(4) (2000).
223
See id. § 107(1)-(2).
224
See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449
(1984) (stating that “to make copies for a commercial or profit-making
purpose . . . would presumptively be unfair”).
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and the nature of the copyrighted work considers whether the
work is published or unpublished. 225
Similar to the goals of trademark fair use, copyright fair
use balances the interests at stake to determine when
infringement is improper. 226 Therefore, it would make sense to
examine copyright law when considering how to better analyze
trademark fair use claims.
C.
The Expansion of Trademarks Beyond Source
Identification
Traditionally, trademarks serve primarily sourceidentifying functions. 227 More recently, however, societal trends
have altered the landscape of trademark usage and provided an
additional reason for reconsidering the limitations on
trademark protection. 228 In today’s society, trademarks not
only indicate source, but are also a desirable part of the
product itself. 229 For example, some consumers purchase
clothing, hats, and bumper stickers to show allegiance to a
particular sports team, and the team’s trademark is not a
source-identifier at all. 230 Trademarks can also represent
status or fashion.
Many clothing companies put their
trademarks in highly visible places as a selling point for their
merchandise. For example, Tommy Hilfiger emblazons their
trademark on the outside of almost every item of clothing they
sell. The trademark can even become the product itself, such
as a rapper wearing a gold Mercedes-Benz hood ornament
around his neck. Online retailers sometimes use a competitor’s
trademark to generate search engine results or even to trigger
225
See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564
(1985) (acknowledging the value in “[t]he right of first publication” and “the choices of
when, where, and in what form first to publish a work”).
226
See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764,
2775 (2005).
227
See 1 MCCARTHY, supra note 3, § 3:2.
228
See Kozinski, supra note 184, at 962-63 (arguing that these new trends
“raise[] questions about whether – and to what extent – the law should protect
trademarks”).
229
See Kozinski, supra note 184, at 961 (recognizing the “growing tendency to
use trademarks . . . to enhance or adorn [products], even to create new commodities
altogether”).
230
When one buys a New York Yankees t-shirt from a vendor in the parking
lot at Yankee stadium, it is highly doubtful that he thinks the New York Yankees
organization endorses this sale.
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pop-up advertisements. 231 As the role of trademarks expands,
the law should consider what, of these new roles, trademark
legislation should protect, and how to effectuate any potential
changes. In the realm of fair use, trademark will benefit by
expanding the current test and incorporating analogous
aspects of copyright fair use and its considerably more
comprehensive test.
IV.
INCORPORATING COPYRIGHT FAIR USE INTO TRADEMARK
FAIR USE
Given the changing landscape of trademarks 232 as well
as the confusion following the Supreme Court’s take on fair use
in KP Permanent, 233 courts must facilitate a better approach to
assessing trademark fair use. Due to the similarities to
copyright law, trademark law would benefit from looking to
copyright’s fair use test, which courts have applied more
consistently. Copyright fair use applies a significantly more
comprehensive test to ascertain whether or not a use is fair. 234
If the factors of that test are analogized to the areas of
trademark law which they most resemble, trademark law, too,
will have similar consistency in the courts. While a copyright
fair use claim involves a careful analysis of the original work,
the alleged infringing use, and the market effects, 235 the
Lanham Act only requires an analysis of the alleged infringing
use to determine if the use is fair. 236 In KP Permanent, the
Court suggested that if the alleged infringing use met the
elements of the fair use defense, the defense could succeed even
when there is consumer confusion. 237 Although the Court
indicated that some level of confusion might defeat the fair use
231
See 1-800 Contacts, Inc. v. Whenu.com, Inc., 414 F.3d 400, 403 (2d Cir.
2005) (holding that a search engine’s use of a trademark to trigger advertising does not
qualify as “use” of the mark under Lanham Act); but cf. Gov’t Employees Ins. Co. v.
Google, Inc., 330 F. Supp. 2d 700, 704 (E.D. Va. 2004) (reaching the opposite
conclusion).
232
See discussion supra Part III.C.
233
See discussion supra Part I.E.
234
In addition to the four factor test, the Court has also noted that additional
factors can be considered. See Harper & Row v. Nation Enters., 471 U.S. 539, 588
(1985) (Brennan, J., dissenting) (stating that the four statutory factors “are not
necessarily the exclusive determinants of the fair use inquiry and do not
mechanistically resolve fair use issues”).
235
See 17 U.S.C. § 107 (2000).
236
See 15 U.S.C. § 1115(b)(4) (2000).
237
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111,
121 (2004).
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FAIR USE IN THE POST-KP PERMANENT WORLD
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defense, they gave no suggestion as to how lower courts can
come to this conclusion. 238 By failing to give any guidance, the
Court ignored one of the pinnacle justifications behind
trademark protection: avoiding marketplace confusion. 239
In “classic” fair use claims, courts should consider more
than just the nature of the alleged infringing use to better
determine how much confusion would bar the defense. As it
currently stands, the Lanham Act only requires that courts
determine if the trademark is used descriptively, not as a
trademark, fairly, and in good faith. 240 In reviewing these
considerations, courts, in actuality, only assess the alleged
infringer’s conduct and use. 241 This is similar to the first factor
of copyright fair use, which looks at the purpose and character
of the use. 242 One can only imagine what would become of
copyright fair use if it only considered the first factor of the
four factor test required by statute. 243
Trademark law also touches on the third factor of the
copyright test which assesses the amount and substantiality of
the portion used. 244 What the trademark test fails to consider,
however, is a trademark owner’s rights, his use of the
trademark, and how the alleged infringing use may affect the
market. One of the most important considerations in copyright
fair use is the fourth factor of the test which assesses the
potential economic effects of the alleged infringing use. 245 In
fact, both copyright and trademark fair use were constructed
around goals of economic efficiency. 246 Without reviewing the
trademark itself, its owner’s rights, and the economic effects in
permitting or denying a defendant’s alleged infringing use,
courts will ignore the primary concerns in creating the fair use
defense in the first place.
Courts hearing trademark cases should consider both
parties’ use of the trademark as well as the respective markets
238
Id.
See 15 U.S.C. § 1114(1)(a) (2000).
240
See 15 U.S.C. § 1115(b)(4) (2000).
241
See id. The considerations of the Lanham Act address only how the alleged
infringer uses the trademark.
242
See 17 U.S.C. § 107(1) (2000).
243
See 17 U.S.C. § 107 (2000).
244
See id. § 107(3).
245
See id. § 107(4); see also 4 NIMMER ON COPYRIGHT, supra note 162,
§ 13.05[A][4] (stating that the fourth factor often “emerges as the most important, and
indeed, central” factor in fair use cases (citations omitted)).
246
See discussion supra Part III.B.
239
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in which they sell their products, just as courts hearing
copyright cases consider the nature of the copyrighted work as
well as economic effects in permitting or denying fair use. In
looking at the plaintiff’s use of the trademark, the analysis
should not be all that different from a typical likelihood of
confusion analysis. 247 Courts, however, should reexamine the
likelihood of confusion in light of the fair use claim which may
alter their conclusions. Courts can look at the strength of the
plaintiff’s trademark as well as when it was registered
juxtaposed to the defendant’s use of the trademark. A plaintiff
who has had its trademark federally registered and in use for
over ten years before a defendant incorporated the words into
its advertisement should find itself in a much better position
than a plaintiff who has just recently registered a trademark
years after a defendant began using the words to market its
product. 248 These two different scenarios would create entirely
different economic effects, and if trademark fair use is based, in
part, around such concerns, these types of facts must be
considered. Economic effects cannot be properly addressed by
simply analyzing a defendant’s use and bad faith. Copyright
law reviews the plaintiff’s work, and in doing so, properly
addresses economic issues. There is no reason trademark law
should not follow that model for success.
Trademark law could also subdivide the factors of its
test to achieve more equitable results. In copyright law,
certain uses will garner a stronger likelihood of success, such
as transformative, non-commercial uses. 249 In trademark law,
the Lanham Act does consider the transformative nature of the
use by considering whether the alleged infringer uses the
trademark descriptively and not as a trademark. 250 The
statute, however, does not require that courts assess whether
the use is commercial or non-commercial. 251 Trademark law
can incorporate this inquiry by examining the relatedness of
the goods or services between plaintiffs and defendants.
Although courts hearing trademark cases already consider this
factor when evaluating the likelihood of confusion, they should
247
See supra note 32.
The latter situation is not all that different from the facts of KP
Permanent, in which KP had used the words prior to Lasting Impression’s registration.
See KP Permanent Make-up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 114
(2004).
249
See discussion supra Part II.A.
250
See 15 U.S.C. § 1115(b)(4) (2000).
251
See id.
248
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FAIR USE IN THE POST-KP PERMANENT WORLD
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revisit the issue when assessing fair use. For example, a
defendant may use another’s trademark in the sale of goods,
which is unquestionably a commercial use. If the defendant
sells breakfast cereal, however, and the plaintiff manufactures
automobiles, the use might not be considered commercial as it
relates to the plaintiff’s business. This additional consideration
will speak to economic repercussions as well, since an
automobile manufacturer can hardly claim that a cereal maker
has adversely affected his business. Similar to copyright law,
this additional consideration is not dispositive but simply
assists courts in evaluating fair use claims.
The dilution of trademarks should also be considered in
the post-KP Permanent world as it applies to fair use. 252
Dilution occurs when a famous mark is misappropriated in a
way that causes it to lose its distinctive value in the
marketplace. 253 Since the Lanham Act requires a distinctive
trademark as opposed to a descriptive one to generate a claim
of dilution, 254 dilution is not applicable to statutory fair use, but
often appears in nominative fair use claims. Some judges have
already begun to blend copyright law with trademark law in
dilution claims to achieve more equitable results. 255 When
Mattel, makers of Barbie, brought a suit against the record
companies who produced, marketed, and sold Barbie Girl, a
song which poked fun at Barbie, Judge Kozinski of the Ninth
Circuit Court of Appeals upheld the defendant’s use under the
nominative fair use doctrine, but in doing so, cited to a
Perhaps Judge Kozinski’s opinion
copyright case. 256
foreshadows the future of fair use in trademark law. In the
area of nominative fair use, particularly parody, courts must
look outside trademark law to find answers. A trademark in
parody does not identify source at all, but rather calls the
consumer’s attention to the parody through the use of a
trademark. 257 Since copyright fair use has successfully and
252
See HILDEN & JAENICKE, supra note 175, at 22 (recognizing that “[i]t
remains to be seen what diluting uses will nonetheless be deemed to be fair in the
name of fostering free expression”).
253
See 15 U.S.C. § 1125(c) (2000).
254
Id.
255
See Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 901 (9th Cir. 2002).
256
See id. at 901 (stating that “[t]he song does not rely on the Barbie mark to
poke fun at another subject but targets Barbie herself”) (citing Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 580 (1994) and Dr. Seuss Enters., L.P. v. Penguin Books
USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997)).
257
Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, Inc., 886 F.2d
490, 494 (2d Cir. 1989) (explaining that “the keystone of parody is imitation”).
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consistently addressed parody, 258 those cases can provide courts
hearing trademark cases with guidance when handling
nominative fair use claims. 259
V.
CONCLUSION
Although
some
readers
might
criticize
this
“incorporation,” this Note does not purport to suggest a
merging of copyright and trademark law but rather a
consideration of copyright fair use to better facilitate consistent
applications of fair use in trademark. The Supreme Court has
already rejected a merging of the two areas of intellectual
property, 260 but the type of incorporation proposed in this Note
is of an entirely different nature. The suggestions of this Note
are highly significant in assessing fair use in trademark and
upholding the general policies behind intellectual property
protection. Although some of this Note’s proposed fair use
factors must be proven by the plaintiff, that does not mean that
they are not relevant to a court’s inquiry into a fair use claim.
Trademark law is based upon multiple policy concerns, and in
order to properly address both traditional and new issues that
arise with respect to trademark infringement, courts must
balance all the interests at stake. 261 As copyright law has
similar interests at stake, 262 the adoption of the analogous
factors from copyright fair use into trademark law is a natural
progression which will benefit the courts as well as both
present and future litigants.
Both copyright and trademark law have recognized
infringing yet fair uses for years, but there are distinct
differences in how the courts have interpreted these two
doctrines of fair use. Copyright fair use requires a thorough
analysis and considers both the original and infringing work as
well as the economic repercussions. The trademark test for fair
258
See Acuff-Rose, 510 U.S. at 569.
See generally Gary Myers, Trademark Parody: Lessons from the Copyright
Decision in Campbell v. Acuff-Rose Music, Inc., 59 LAW & CONTEMP. PROBS. 181, 210-11
(1996).
260
See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).
In Dastar, the plaintiff tried to use the Lanham Act to grant relief in what was
essentially a copyright claim, but the work was in the public domain, and no longer
protected by a copyright. Id. at 31. The Court denied the plaintiff’s attempt at relief.
Id. at 38.
261
See Kozinski, supra note 184, at 977 (properly analyzing trademark rights
“requir[es] one to balance interests that point in different directions”).
262
See discussion supra Part III.
259
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FAIR USE IN THE POST-KP PERMANENT WORLD
1701
use involves a much simpler inquiry focusing only on the
infringing use. Copyright protection, however, has deeper
historical roots than trademark, and courts have had more
experience in handling copyright fair use claims. As technology
blossoms and trademarks flourish, predictability in litigation
becomes a necessity to business owners. The state of the law
will affect business owners not just in litigation but also in
their selection and use of trademarks. Trademark law as it
currently stands does not delineate the factors of a fair use
claim clearly enough to aid potential litigants. Since both
copyright and trademark law share similar goals, it would
follow naturally to allow trademark fair use claims to borrow
from the principles of copyright fair use and create a clearer,
more efficient test. Without better guidelines, both the courts
and potential litigants will be wary of how to proceed. By
incorporating principles of fair use in copyright, trademark can
achieve its ultimate goal of avoiding confusion both in the
marketplace as well as within the judicial system.
Michael B. Weitman †
†
B.A., Boston University, 1999; J.D. candidate, 2007, Brooklyn Law School.
Thanks to everyone at the Brooklyn Law Review for their endless efforts, Professor
Samuel Murumba for helping me get this topic off the ground, Professor Christopher
Serkin for his guidance, and my friends and family, especially Emily, for their love and
support.