Legal Theory Blog
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This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Wednesday, April 30, 2003
Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts
A Tale of Two Law Clerks Like all good postmodern tales, this one begins out of sequence. So let’s . . .
The clerk sat before the desk. On the other side, gazing out the window at the Mall, sat the Justice, white hair and deeply lined black face--at 93 years of age, still hale. It was the clerk’s first day, and she worked up the courage to ask a question. Two of her colleagues sat nervously beside her. “Your honor,” she began, “can you tell us about life tenure. I mean, Professor Oman told us about the Crisis of ’03, but you actually lived through it. Is it true that you are the only federal judge who still has life tenure?”
“Not yet,” the Justice laughed. “Jeff Sutton is still technically on senior status. But almost.” He turned away from the clerk, and stared out the window at the black obelisk occupying the space where the Capitol once stood. “I know that people say it started in ’03. Nate, er, your Professor Oman, probably knows more about the political part of that than I do. It can be pretty isolated here.” Justice Clarence Thomas swiveled and faced the clerk, “And anyway, it really all started back in 1985, when the Ninth Circuit decided a case called United States versus Woodley. It was an en banc and in those days that meant something. Woodley, you know, held that recess appointments to federal courts are constitutional, and boy did that become important. You see . . .”
Reverse--The Year: 1985. The Place: Los Angeles, the 12th Floor of the Old United States Courthouse.
The clerk sat before the desk. On the other side, gazing out the window at the mountains outlined in the smog sat the Judge, a vigorous and alert man in his 50s. The clerk was in the office to get an assignment. It was early in his clerkship, and he was eager and just a bit nervous.
“Woodley, said the Judge. “I’d like you to work on United States versus Woodley. It’s gone en banc, and the Court has voted to reverse the panel decision. My decision!"
“What’s it about?” asked the clerk.
“It’s about whether Article III of the Constitution means something,” answered Judge William Norris. “And I think it does. It’s about whether judges without life tenure can serve on Article III courts. And I think they can’t. Here is what happened . . . ”
Before I go any further, I need to make a disclosure. I was the second clerk. I drafted William Norris’s dissenting opinion in United States v. Woodley. That fact makes it difficult for me to be completely objective about the question that I feel compelled to address in this post: Is it constitutional for the President to make a recess appointment to an Article III Court? In 1985, I believed that the independence of the federal judiciary served a crucial constitutional function, and I still believe that today. In 1985, I saw that it was not easy to make out the case that recess appointments to the judiciary are unconstitutional; those difficulties loom even larger today. I will do my very best to be objective, but you should know that I have been thinking about this issue for almost 18 years, that my work is at stake, and that my pride is on the line. I will return to our Tale of Two Clerks at the end of this post, but for now, on to the analysis!
The Good Behavior and Undiminished Compensation Clauses: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." U.S. Const. art. III, § 1.
What do these clauses mean? When I drafted the dissenting opinion in United States v. Woodley, here is what I thought. The usual understanding of Article III, Section 1, is that it confers life tenure on Article III judges. From that fact, a corollary could be inferred: the good behavior clause prohibits anyone without life tenure from serving as an Article III judge. Using similar reasoning, we could infer from the guarantee of undiminished compensation a prohibition on anyone whose compensation might be diminished from serving as an Article III judge. Recess appointees lack life tenure and Congress has not guaranteed them undiminished compensation--in fact, Congress has tried to deny some recess appointees any compensation at all. Therefore, the text of Article III, Section 1, prohibits recess appointees from exercising the judicial power of the United States.
But what about the recess appointments clause? That clause applies to "all Vacancies that may happen during the Recess of the Senate" and thus, the recess appointments clause would appear to apply to judicial vacancies as well. How can we reconcile the language of the two clauses?
--Absolute versus Qualified. We might try to argue that the recess appointments clause is absolute, and therefore, the recess appointments clause must give way. But this argument does not work either. The recess appointments clause says "all vacancies" and therefore is every bit as unqualified as is Article III. In fact, the recess appoints clause by using "all" seems to have a bit of an edge on the basis of this argument.
The Impeachment Clause: The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. U.S. Const. Article 2, § 4.
The guarantee of life tenure for confirmed Article III judges results from the operation of the good behavior clause with the impeachment clause. Read together they lead to the inescapable conclusion that once confirmed an Article III judge cannot be removed except by impeachment--and hence, confirmed Article III judges have life tenure.
But what about recess appointees? Once again, we can proceed intratextually, adding now the recess appointments clause to the mix. Recess appointees have terms that are guaranteed through the end of the next Session of the Senate, because they are civil officers of the United States, they may only be removed before that date by impeachment. This interpretation reconciles the three clauses. The good behavior clause interacts with the impeachment clause and the recess appointments clause to produce a consistent and coherent meaning for the text of all three provisions.
Hold your horses! What about the corollary of the good behavior clause? Doesn't that prohibit anyone without life tenure from serving as an Article III judge? I wish it did. But here is the problem. The corollary isn't anywhere in Article III. The good behavior clause is it. That's all she wrote. The corollary accounts for life tenure for confirmed judges, but results in a direct collision between two clauses, if it is applied to recess appointees. The alternative interpretation that I have offered here accounts for life tenure, and makes the constitution consistent. The text of the Constitution does not support the proposition that recess appointments are unconstitutional. When I drafted the dissenting opinion in Woodley, I finessed this problem by arguing that the text was inconclusive. I still believe that. By itself, the text does not close the door on the argument that recess appointments are unconstitutional. We still need to consider history and function.
What argument can be made in reply? Here is the relevant text from Judge Norris's dissent:
Tradition and the Rule of Law. History has another role to play in Constitutional interpretation. The Supreme Court will frequently defer to a long historical tradition or practice--even though there are arguments that the tradition contravenes the text or spirit of the Constitution. There have been a lot of recess appointments over a very long time. Although the argument has occasionally been made that recess appointments are unconstitutional, that argument has almost always failed. The Ninth and Second Circuits have rejected constitutional challenges to recess appointments; no court of appeals has sustained a challenge. Republicans and Democrats have made use of the recess appointments power. Supreme Court Justices have been recess appointees. Chief Justices have been recess appointees. If a long historical tradition suggests that a practice is constitutional, then this provides additional evidence that recess judicial appointments are constitutional. The Woodley dissent essentially conceded this point, but argued that it was outweighed by an important constitutional value--judicial independence.
Deadlock When I drafted the dissenting opinion in Woodley it seemed to me that recess appointments to the judiciary served no valuable constitutional function. The only good reason for recess appointments, I thought, would simply be efficiency and convenience. Recess appointments would allow judicial vacancies to be filled during the then-longer recesses of the Senate. In the event of a freak accident, it could take weeks for the Senate to reconvene. But today, the Senate could come back in session in a day or two in a true emergency. And the federal judiciary and the Supreme Court are both much larger, and hence under almost any imaginable circumstance they could function for weeks or even months with vacancies unfilled. So, it seemed to me that the recess judicial appointments were an unqualified bad as a matter of constitutional policy. But I now see this issue through different eyes. Step back for a moment and consider the constitutional values implicated by recess judicial appointments:
--Judicial Independence. The good behavior clause serves to promote the rule of law by giving judges independence from the political branches.
--Functional Continuity. The recess appointments clause insures that the judiciary can continue to function in the event the Senate cannot or will not confirm nominees to judicial office.
Phase One: Recess Appointments as Retaliation for Democratic Obstruction The judicial selection process is in a downward spiral of politicization. Republicans denied President Clinton floor votes on many of his nominees and Democrats have escalated, resorting to wholesale use of blueslipping and the filibuster. What's next? Perhaps everyone will wake up and smell the coffee. It may be that Democrats and Republicans are about to reach a historic compromise on the confirmation process, but as of today, it sure doesn't look like everyone is about to become cooperative. So let's try a thought experiment. What if President Bush did threaten the use of recess appointments and the Democrats not only didn't back down, but escalated--filibustering every nominee for judicial office? The President would have few alternatives. He could back down and start nominating judges whose political ideologies were acceptable to Democrats, but that hardly seems likely. He could allow the Democrats to block all nominees and simply allow judicial vacancies to go unfilled until after 2004--but that seems both irresponsible and the equivalent of political surrender. He could get lucky and persuade a few Democrats to vote for cloture--but so far that strategy has been unsuccessful. Or he could make recess appointments. Let's suppose that is the option chosen by the President.
Phase Two: Democratic Reaction How would the Democrats react to wholesale use of the recess appointments power? Here are the options:
--Democrats could try the litigation options, but that seems unlikely to be successful, although there might well be political benefits from the effort.
--Democrats could continue to filibuster and make the recess appointments an issue in the 2004 election. After pursuing the litigation strategy, this seems like the most likely outcome. So what would happen next?
+ Variation 1-B: Continue to filibuster the Presidents nominees--with the President countering by continuing the practice of making recess appointees.
--Scenario Three: If the President is not reelected, and the Democrats do not gain control of the Senate (or fall short of 60 votes), then Republicans have two choices:
+ Variation 3-B: The Republicans filibuster the Democratic President's nominees. This puts Republicans in the same position as the Democrats were in Phase Two and the next big event would be the election of 2008.
On the Other Hand But wait a second. The way that we got into this mess begins with a judiciary that is already being politicized. If both parties are willing to appoint virtuous judges, who are committed to the rule of law, relying on text, history, and precedent rather than personal ideology, then we would never enter a downward spiral of politicization. The downward spiral--the confirmation wars--are a symptom of the deep politicization of the federal judiciary that has occurred over a period of decades. Once the parties woke up to the fact that federal judges were becoming political actors, then they realized that political control of the composition of a judiciary with life tenure was one of the great prizes of control of the Presidency. But once the parties realize that, a further realization follows. The ability to block judicial nominees is one of the great benefits of holding at least 41 seats in the Senate.
Here is the crucial insight. Once the judiciary has become politicized, it is no longer clear that lifetime tenure is justified. We want lifetime tenure to safeguard the rule of law. Lifetime tenure looks like a pretty silly idea if it is being used to safeguard the power of judges who have been thoroughly politicized. If the judiciary is just another political branch, then it should be politically responsive. Let me repeat that idea in a more pungent form. If the judiciary is just another political branch, then it is appropriate for judges to be turned out of office every four years. Politicized judges pose a countermajoritarian difficulty. Politicized judges with life tenure are the most dangerous branch. But the recess appointments clause when combined with advice and consent and the filibuster provides a self-correcting constitutional mechanism. If the judiciary becomes thoroughly corrupt and partisan politics prevents the political branches from agreeing on the appointment and confirmation of judges devoted to the rule of law, then the constitutional solution is to replace lifetime tenure with judicial terms for a limited period of years--and that solution is already available in the recess appointments clause. Let me be clear: I am not arguing for recess judicial appointments. I am arguing against them. But I am arguing against recess judicial appointments because I am in favor of the rule of law. If I am given the Hobson's choice--politicized judging with life tenure or politicized judging without life tenure--the choice is painful but clear. The point of the thought experiment is that we should avoid the Hobson's choice. How can we avoid it? Compromise. Both parties should agree on two principles of judicial selection. Principle One: judges should be selected on the basis of their possession of the judicial virtues, and especially the virtue of justice--fidelity to the rule of law. Principle Two: each party should agree to allow the nominees of the other party to come to a floor vote, and Senators should vote to confirm--unless there is good evidence that the nominee lacks the constituent elements of good judicial character. The possible world of Article III without Life Tenure is not the only ending point for the downward spiral of politicization, but contemplating this possibility can and should serve a salutary purpose. It is in the long run interest of both political parties to call off the confirmation wars. The time for escalation should end, and the time for compromise should begin.
Back to the Future And in 2035 . . .
. . . and Professor Oman suggested that the crisis of 2003 actually led to the solution of the countermajoritarian difficulty," the clerk continued, no longer nervous but excited by the exchange of ideas.
"I'm not so sure about that," the Justice replied. "But I do know that this place is a whole lot different now that Justices come and go every couple of years. Why, some of these young ones, I hardly learn their names before a new bunch arrives." He swiveled again, and looked down through five inches of bullet proof glass upon the Mall, eerie now in its emptiness. "Yep, it sure has changed."
For more on the confirmation wars, see Breaking the Deadlock: Reflections on the Confirmation Wars. For a guide to all my posts on judicial selection, click here.
Hasen on Rationality in the Confirmation Wars Rick Hasen has an excellent post on the rationality of the Democrat's decision to filibuster Estrada and the possibility that the President might use the recess appointments power.
Jonathan Zittrain and Benjamin Edelman (Harvard) offer Internet Filtering in China.
Vincy Fon (George Washington, Economics) and Francesco Parisi (George Mason) offer two papers:
Tuesday, April 29, 2003
The Downward Spiral of Politicization of the Judicial Confirmation Process: The Recess Appointments Option
The Next Step In the short run, the politicization of the confirmation process is political theater. Both parties posture and play to the media. But the political theater phase of the confirmation wars is about to end. There are at least two reasons why the sitzkrieg cannot continue. The first is that the judiciary is becoming depopulated; judicial emergencies have already been declared in several circuits. The second reason is that the battle is about to move to the Supreme Court. If William Rehnquist and Sandra O'Connor resign this summer, as is widely expected, the mother of all confirmation battles will be joined. There is no reservoir of good will between the parties to draw upon--that has been depleted over the course of the last few months. This will be an intense, bitter, partisan fight--with the memory of Bork and Thomas steeling Republican wills for an all-out, no-holds-barred contest with Democrats who see the crucial vote to overrule Roe v. Wade as potentially on the line. So what's next? Consider three possibilties:
Depopulation of the Judiciary The second alterantive is depopulation of the judiciary. The stalemate could persist. Democrats could filibuster any Republican nominee who isn't "moderate," and the President can stop sending "moderates" to the Senate. The Supreme Court can function with seven Justices. The lower federal courts could limp along with fewer and fewer judges. Of course, the depopulation option cannot last for very long. On the one hand, the ability of the courts to do the nation's judicial business will eventually begin to suffer substantial impairment. On the other hand, the depopulation of the Supreme Court will have obvious political consequences. For example, if Rehnquist and O'Connor were to resign and not be replaced--the ideological tilt of the Court would move dramatically to left, with Stevens, Souter, Ginsburg, and Breyer forming a working four Justice majority. The pressure to break the stalemate would begin to build. And this leads me to the third option.
Recess Appointments The Recess Appointments Clause, Article II, Section 2, Paragraph 3 provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." My colleague, Rick Hasen, started blogging about the wholesale use of recess appointments some week past. And that option has been discussed by Hugh Hewitt in an essay in the Weekly Standard. The use of recess appointments to the judiciary has ebbed and flowed since 1789, but it has been rare in recent years. The reason is that the Senate is jealous of its constitutional perogative--the advice and consent power. By statute, most recess appointees cannot be paid, and the Senate, from time to time, reminds the President that recess appointees are unlikely to be confirmed. Given the uncertainty of confirmation, most of those qualified to serve as federal judges or Justices of the Supreme Court are likely to be unwilling to accept a recess appointment. Hence, the use of the recess appointments clause has been sparing, and its wholesale use has been deemed impracticable.
If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees.
But Where Would This Lead? Wholesale recess appointments would constitute a radical change in the way that judges are selected. Where would this lead? I will have more to say about this topic in another post. For now, here are some possibilities worth thinking about:
Retaliation But Democrats may not be in the mood for compromise. In fact, they might see this move by the President as exactly what the Democratic party needs to activate its base. Of course, activating the base may not be the best strategy to elect a Democratic President in 2004--an active Democratic base may produce an unelectable Democratic candidate. But an active base has another side effect--a massive influx of campaign contributions for incumbent Democratic Senators and Representatives. And the Democrats can open a second front. There is a litigation strategy. Howard Bashman of How Appealing has argued that recess appointments to the judiciary violate the good behavior and undiminished compensation clauses of Article III (see also here). The host of activist Democratic lawyers that fought the legal battle for Gore in Florida could be reactivated, and their Republican opponents could join the fray. The issue would eventually land where? Why in the Supreme Court, of course, with two of the sitting Justices (the replacements for O'Connor and Rehnquist?) possibly themselves recess appointees. They might recuse themselves, but then again, they might not. With the future of the Republic on the line, this case would make Bush v. Gore look like a carnival sideshow.
New Look for the Election Law Blog Check out Rick Hasen's new look at the Election Law Blog. By the way, it looks absolutely terrific, Rick. I'm jealous.
The Confirmation Wars I have been arguing for some weeks now that the judicial selection process is in a downward spiral of politicization. Further evidence comes today from Howard Bashman who reports on an article from Rollcall:
Monday, April 28, 2003
New from Online Papers in Philosophy Alex Rosenberg (Duke, Philosophy) posts On The Priority of Intellectual Property Rights, Especially in Biotechnology. From the abstract:
Monday Workshop Max Kolbel (Birmingham) presents Indexical relativism vs genuine relativism at Oxford's Seminars on Moral Philosophy series.
Fontana on Comparative Constitutionalism David Fontana has posted Refined Comparativism in Constitutional Law on SSRN. Here is a taste from the abstract:
Hot Downloads Department: Weatherson on Land Disputes The issue is how to resolve disputes between nations or ethnic groups--a topic of no small importance. Hillel Steiner and Jonathan Wolff had a paper in Analysis. The gist of their idea is to conduct an auction--by the way, scroll down for Paul Klemperer's latest paper on auction theory. Here is Weatherson's summary:
New on SSRN A slew of new and interesting papers on SSRN. Here is the roundup:
A Transactions Cost Theory of Patent Law
Wolff on Rawls On the The Philosophers Magazine, Jonathan Wolff (University College, London) has a very nice piece entitled A Theory of Justice: the book that changed everything. Here is a taste, but read the original:
New from Economic Theory News Michele Piccione (London School of Economics) and Ariel Rubinstein (Princeton and Tel Aviv, Economics) have uploaded Two Tales of Power and Distribution of Wealth in the Jungle. Here is an abstract:
Sunday, April 27, 2003
The Desert and the Jungle: Alan Schwartz and Robert Scott on Contract Theory
But What Is Going On Here I find most of Schwartz and Scott's story to be compelling. In particular, their argument for the plain meaning approach to the interpretation of commercial contracts was very persuasive. But stepping back for a moment, I find large portions of their argument puzzling or confusing--although I think I agree with their core normative positions. Let me start with their basic theoretical notions--the idea of complete contract and a default rule. Before I start my analysis, it is probably useful to lay out some of Schwartz and Scott's basic ideas and arguments. Here goes:
--"Incomplete contracts sometimes produce law suits because parties will not always agree ex post regarding the treatment of omitted contingencies." (p. 60)
--"The commonly held view is that but for the cost parties would write complete contracts." (p. 62)
Default Rules and Mandatory Rules From this picture, it follows that the law of contracts contains default rules and mandatory rules. A default rule is a rule of law that fills a gap in an incomplete contract; default rules can be overriden by the terms of a contract, and hence, if a contract is complete, it completely excludes the operation of default rules. A mandatory rule is like a default rule, except that it trumps the terms of a contract. For example, a contract that with a liquidated damages clause that called for the breaching party to forfit a pound of flesh in the event of breach would be uneforceable because it would violate a mandatory rule.
Schwartz and Scott's Argument for Minimizing the Number of Default Rules Schwartz and Scott argue that contract law should contain very few default rules and standards. Let me quote three key paragraphs. The first sets out criteria for a good default rule. The second argues that because default rules would be too expensive, contract law relies on default standards instead. The third paragraph :
Desert Landscapes How might we capture the core intuition behind Schwartz and Scott's theory of contracts between firms? Let us analogize current contract law to a lush jungle, populated by a dense undergrowth of default standards and a forest of default and mandatory rules. For firms to build a contract in this jungle, they must hack their way through the undergrowth--cutting down default standards willy nilly and building their agreement around the many awkwardly placed mandatory rules of contract. Schwartz and Scott might be said to long for contract law that is like a desert landscape. Surveying this sparse Schwartzscottian Desert, we would see a few scattered but attractive default rules along with the rare but prickly mandatory rule, usually spied only atop a distant dune. Building a contract in the desert is cheap by jungle standards. Because the mandatory rules are few and easily avoided, it is a simple task for firms to find a suitable plot upon which they can build their agreement. The default rules that might impinge on one’s contract can be incorporated in the structure or cleared away without undue expense. The desert floor is bare and solid—already a suitable foundation for building an agreement. It is no wonder that firms would prefer to build their contracts in desert landscapes.
"States of the World" and "Obligations of the Parties" We also need to define two more elements that enter into the notion of a completely specified contract: state of the world and obligations of the parties. First, stipulate that a state of a possible world is a unique time slice of that world: thus, world Wz at time Tq is at state S[WzTq]. Second, stipulate that obligations of the parties to a contract for a given state of the world will be a set of descriptions O that contains for each party, p1, p2, . . . pN, the obligation descriptions o1, o2, . . . oK that pick out the action types the occurrence of which is required by the contract. Thus, party p1's discrete obligation o1 would be p1o1. Given these definitions, a completely specified contract will take the form of a list of ordered pairs. One member of each pair will be a state of some historically and nomologically accessible possible world and the other will be a specification of the obligations of the parties for that event type. Let the equal symbol (=) represent the relationship between the two members of the ordered pair. A completely specified contract for n parties with k obligations in q time slices of z possible worlds would need to spell out all obligations of all parties for all time slices of all nomologically and historically accessible possible worlds. For just one time slice of one possible world and some number of parties N, we have
Default Rules? Conceptual Default! A complete set of default rules simply is a complete contract minus the particular provisions that identify the parties and their core obligations. If contract law is to provide default rules for all situations in which an actual contract falls short of the ideal of a fully specified contract, then contract law must either contain an infinite number of rules or a finite number of rules or standards that predetermine outcomes in an infinite number of cases. A core assumption of Schwart and Scott's argument is that a complete set of default rules or standards that provide determinate guidance for the resolution of cases is impossible. And they are right. The dream of a completely specified contract has taken on a nightmarish quality. It is not clear that the idea of a contract that specifies the obligations of the parties for all possible futures states of the world makes sense.
Reconceputalizing Default Rules We need to rebuild the idea of a default rule on foundations firmer than the incoherent idea of a fully specified contract. Once we severe that tie, we can develop a workable albeit less ambitious concept. The key move is to figure out what default rules really do. My suggestion is that default rules perform three functions, or putting it a bit differently, default rules fill three kinds of gaps:
Gap Type Two. Contractual Generality and the Variability of Experience. Consider a second and related reason for so-called "gaps." Contracts are written in relatively general language, but human experience is enormously variable. Recall Aristotle's classic discussion of equity in Chapter Ten of Book Five of the Nicomachean Ethics:
Gap Type Three. Recurring Omissions of Anticipatable Contingencies. Consider a third source of contractual gaps, the omission by the parties of an anticipatable contingency. Of course, such examples are familiar from contracts casebook. These are the garden-variety gaps with which we are all familiar. And of course the law does provide default rules for such recurring gaps. In a common law system, such gap filling by default rules is almost inevitable. The fact patters recur, opinions are published and particular rules governing omission types begin to form. One important default rule that applies to most contracts is law of contract damages--the expectation measure fills a gap in contracts without liquidated damage clauses (or other damage provisions). Even more ubiquitious is the set of rules that define the rights and obligations of the parties in the event that the contract is invalidated. Once again, the law provides a default for an anticipatable contingency--the invalidation of the contract itself. Of course, this default rule is an absolute nececessity. Although the parties could attempt to enter into a second order contract that established the consequences for invalidation of their first order contract, you have already seen that there is an infinite regress looming. What if the second order contract was not properly formed or is invalidated for some other reason? Well, the parties could form a third order contract, but . . .
I Have Good News and Bad News The good news first. Sure, complete and utter incoherence is not a good-making feature of theories, but in this case, there is a fix available. What Schwartz and Scott really mean is that of necessity default rules must be formulated so as to be contingent on only a few properties of the world. The problem isn't that there are an infinity of possible worlds. Rather, the problem is that each possible world can be described in an infiinite number of ways and contains a vast (but not infinite) number of entities, events, and actions. A default rule cannot be formulated as a complete description of the world. Default rules must be sparing in their formulation. When compared to the complexities of the world, legal rules are very sparse indeed. This is true even of the Internal Revenue Code--which despite its enormous complexity is vanishingly simple in comparison to the vastly complex world of human conduct it attempts to regulate in exquisitely fine-grained detail. So Schwartz and Scott are not in trouble. We might say that the surface structure of their point is incoherent but the deep structure is sound.
And Now for the Bad New But now that we understand the nature of default rules, it turns out that that one of Schwartz and Scott's claims is self-refuting. Schwartz and Scott claim that default standards are not so hot, because the parties will try to contract around them. But there is no escaping default standards. Contracting without default standards is inconcievable, and trying to concieve of contract law without pervasive default standards is an enterprise fraught with incoherence and confusion. And so it turns out that what Schwartz and Scott are advocating is not fewer default rules or default rules that condition on fewer states of the world. What Schwartz and Scott are advocating is different default rules. So, for example, they offer an argument for a method of contract interpretation, i.e., a "textualist interpretive style, one that restricts the evidentiary base to not much more than the written." And this just is a default standard. Default because Schwartz and Scott's own arguments against mandatory rules tell us that this interpretative method should give way if the parties so stipulate. Standard because the applicability of "textualist interpretation" to particular situations is defined ex post and not ex ante (and that is how Schwartz and Scott define standards as opposed to rules).
And One Thing More . . . One more piece of bad news. If you have gottent this far, you are probably wondering about the following question. If Schwartz and Scott advocate fewer default rules, then what will they do about the gaps? There must be some rule of law to deal with such situations--unless Schwartz and Scott would relegate the parties to self help. Here is what they say:
Freespace and Freewill Timothy Sandefur of Freespace reacts to my post from the Roundtable on Moral Luck at USD. Among other things, Sandefur praises Daniel Dennett's new book, Freedom Evolves--right on the money.
New on SSRN There are a few new papers this weekend:
Joseph Aldy (Harvard, Economics), Scott Barrett (Johns Hopkins, School of Advanced International Studies) and Robert Stavins (Harvard, Kennedy School) upload Thirteen Plus One: A Comparison of Global Climate Policy Architectures. From the abstract:
Downward Spirals Department The rhetoric over the confirmation wars continues to heat up. As those with frequent blogsurf miles know, my view is that we are in a downward spiral of politicization that has dangerous long term consequences. The evidence in support of this hypothesis continues to pile up.
The Criteria for the Filibuster What are the criteria that trigger a Democratic Filibuster? Taking the Time Magazine story at face value, a filibuster is justified if the candiate is "highly ideological." How do we know that a candidate is "highly ideological"? Evidently, a three-step process of reasoning leads to this conclusion. First, from the fact that Sutton and Kuhl advocated postions X and Y as government lawyers, we can infer that they are ideologically committed to X and Y. Second, from the fact that they are ideologically committed to X and Y, we can infer that they would decide on the basis of their ideology if a case involving X and Y came before them. Third, positions X and Y are "highly ideological in nature." All three steps in this chain of reasoning are suspect. Consider the case of Jeffrey Sutton first.
Sutton Jeffrey Sutton served as the Solicitor for the State of Ohio: Time observes that Sutton's "state's rights advocacy has helped limit the scope of disability, age and race discrimination statutes." Presumably, Time refers to positions taken by the State of Ohion in Eleventh Amendment sovereign immunity cases. The question is whether the Constitution (especially Article III's grant of judicial power and the Tenth and Eleventh Amendments) gives the states sovereign immunity from claims brought under federal laws creating private causes of actions against employers that discriminate on the basis of disability, age, or race. I am no fan of the Supreme Court's Eleventh Amendment juirsiprudence. I think that both the plain meaning of the text of the Eleventh Amendment, and the historical evidence about its original meaning are inconsistent with the key precedent, Hans v. Louisiana, and with the Supreme Court's recent decisions in cases like Seminole Tribe. But Hans has been on the books for a century, and Sutton, as the lawyer for the State of Ohio, would naturally argue the position that favored the interest of his client. The first step of the inference, from Sutton's advocacy of the interests of his client to his personal beliefs, is obviously invalid. This argument does not pass the laugh test. But even if it were correct, it does not lead to step two: if Sutton were ideologically committed to an expansive view of state sovereign immunity, it would not follow that Sutton would decide Eleventh Amendment cases on the basis of his personal political preferences. Without more evidence about Sutton's character, this argument is quite simply awful. It has no legs. What about the final step in the argument: If Sutton were ideologically committed to an pro-state's rights interpretation of the Eleventh Amendment would that make him an ideological extremist? This is actually a tricky question. Consider two possibilities: (1) If Sutton is committed to following Supreme Court precedent when he serves on the 6th Circuit, then he is simply committed to doing his job in accord with the rule of law. (2) If Sutton is committed to expanding the Eleventh Amendment protection of the states, even when such expansion is foreclosed by the Supreme Court's decisions or prior Sixth Circuit precedent, then he lacks the virtue of justice--the disposition to make judicial decisions on the basis of the law rather than personal preference. So far as I can tell, the current Democratic position does not differentiate (1) from (2). That is, Democrats are willing to filibuster candidates on the basis that they will follow Supreme Court precedent with which the Democrats agree on ideological grounds. If this is correct, it represents yet another escalatory move in the confirmation war. Opposition to Sutton on the basis of possibility number two is, of course, completely justified. But so far as I can tell, no one has produced a decent argument for two.
Kuhl Carolyn Kuhl was the Deputy Soliciter General under Charles Fried. In that role, she was a lawyer for the United States Government (under President Reagan) in cases before the Supreme Court. She participated in the briefing for the Reagan Adminsitrations attempt to get the Supreme Court to overrule Roe v. Wade. I opposed that move. Although I think that the ultimate foundations for the original Roe decision are suspect, my view is that the Supreme Court should almost always adhere to its prior decisions. The rule of law cannot be restored by a wholesale program of overruling precedents with weak foundations. So I disagree with the Reagan administration's decision to seek the reversal for Roe. Does it follow that I should regard Carolyn Kuhl as an ideological extremist? As her boss, Charles Fried, wrote to the New York Times a few days ago, "You [the New York Times] characterize Judge Kuhl as "outside the ideological mainstream" because, among other things, she joined my brief calling Roe v. Wade an unwarranted extension of constitutional doctrine. That was also the view then of mainstream liberal scholars like Archibald Cox, John Ely and Paul Freund." This nation is deeply divided on the issue of abortion. Scholars, lawyers, and judges are deeply divided on the validity of Roe v. Wade. It is simply nonsense to argue that Kuhl is outside the mainstream because she worked on a brief that advanced the Reagan administration's position on that issue. The relevant question about Kuhl is whether her record as a Superior Court judge demonstrates that she posseses the judicial virtues. Given her background, we can be confident that she has the virtue of judicial intelligence and that she is learned in the law. But does she have good practical judgments or judicial wisdom? Does she have a judicial temperment? Most importantly, does she decide the cases that come before her on the basis of the law or does she allow ideology and personal preference to guide her decision making? I don't know enough to answer these questions, but I do know they are right questions.
Saturday, April 26, 2003
Just My Luck, Part Three One of the nifty side benefits of doing this blog is the exposure to ideas in areas where I do very little work--for example, torts and criminal law. So I was doubly pleased with the opportunity to read and think about the late David Lewis's famous essay, "The Punishment that Leaves Something to Chance," for the Roundtable on Moral Luck at USD this morning. Lewis's essay is a fresh take on an old problem--why attempts are punished less severely than successfully completed crimes. Lewis's proposal is that the punishment of successful crimes is the equivalent of a lottery. All attempts (successful and unsuccessful) are equally blameworthy. For various reasons, we cannot or should not punish everyone who attempts. Instead, we use success as the proxy for a lottery. So both Alice and Ben attempt to impose harm H; they each have a 50% chance of success. Alice does succeed, and Ben fails. Each is equally culpable, but we punish Alice with a punishment P that is deserved for actions with a 100% chance of causing H. Ex ante, both Alice and Ben have an equal (50%) chance of P and that is what the each deserve. Michael Moore quickly demolished Lewis's argument. Among his argument is that Ben isn't really punished at all--an unrealized risk of P is no punishment at all. And if the punishment is supposed to be proportional to the culpability, then Lewis's scheme breaks down in the real world. Take Carla who acts in a way that creates a 90% risk of harm H and Dan who acts in a way that creates a 10% risk of H. Carla is more culpable than D, but both will recieve P if they succeed because both have attempted the same crime--the intional creation of harm H. This discussion got me thinking. Suppose we tweak Lewis's idea in the following way. Let's not have a punishment lottery. Let's have a mercy lottery. Give those who attempt and succeed punishment P--the punishment they deserve. Then let's conduct a mercy lottery, letting failure operate as a winning ticket in the lottery. No one gets more punishment than they deserve, although some get less. Who has a just ground to complaint? Not those who attempt and succeed: they get what they deserve. Not those who attempt and fail: they get a lighter punishment than they deserve and have no just ground for complaint. Not the victimes of crimes: those who perpetrated the offense against them are those who get the punishment they succeed. If society has instrumental reasons to conduct such a lottery, no one has a just complaint. If a mercy lottery is wrong, it must be because undeserved mercy is wrong. Daniel Markel has an interesting draft paper on this topic--but I don't think it is yet available on line.