Roell v. Withrow, 538 U.S. 580, 17 (2003)

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Thomas, J., dissenting

and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge," ante, at 590— is rife with ambiguities. How are the courts to determine whether the litigant or counsel "was made aware of the need to consent and the right to refuse it"? Are courts required to search beyond the record and inquire into whether a clerk of the court informed either a litigant or his counsel of the litigant's rights and provided them with requisite forms to sign? Can courts rely, if applicable, on the parties' participation in other unrelated proceedings before a magistrate judge? In addition, the majority's view of what constitutes "voluntariness" in this context is not at all clear as it seems to depend, at least in part, on establishing a litigant's or counsel's awareness of the litigant's rights.

Although the majority brushes aside the prudential implications of its reading, ante, at 591, n. 7 ("We doubt that this interpretation runs a serious risk of 'spawn[ing] a second litigation of significant dimension.' Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 609 (2001)"), it is hardly a novel proposition that a bright-line rule would be easier to administer. And, it would certainly be so in adjudicating the validity of consent under this statute. If express consent is required, courts will not have to study the record of a proceeding on a case-by-case basis, searching for patterns in the parties' behavior that would provide sufficient indicia of voluntariness to satisfy this newly minted, but vague, test for consent. A bright-line rule brings clarity and predictability, and, in light of the constitutional implications of this case, these values should not be discounted.

Given the uncertainties surrounding the determination of the validity of implied consent, it is not surprising that the majority does not even claim that the requirements of Article III have been satisfied in this case. Rather, all the majority can muster is that "the Article III right is substantially honored." Ante, at 590 (emphasis added). However,

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