Legal Theory Blog
All the theory that fits!
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.
Saturday, May 31, 2003
Blogging From Rutgers: Legal "Realism" Yesterday was the final day of the seminar on Mind, Language, and Law at Rutgers Law School in Camden--organized by Dennis Patterson and Kim Ferzan. Colin McGinn was the speaker and his topic was realism. McGinn's position is that, pace Michael Dummett, there is no single sense in which realism is used in the various realist/antirealist philosophical debates. Rather, McGinn, suggests, that there are at least three senses of realism:
--Realism as Objectivity. In a second sense, one is a realist about something if one believes that thing is "objective" as opposed to "subjective," where objective is understood as meaning independent of the mind. In this sense, one is a realist about the external world if one believes that mountains and stars exist independly of human minds.
--Realism as Determinacy. In a third sense, one is a realist about a domain if one believes that propositions with the domain are determinant in the sense that they are either true or not true. (To simplify, true or false.) Thus "Hamlet has a mole on his left shoulder" is neither true nor false, because Shakespear never tells us whether Hamlet does or does not have such a mole--therefore, on the determinacy conception of realism, one would be an antirealist about Hamlet's mole.
--Objectivity. Is the question whether affirmative action violates equal protection mind independent? In one sense, obviously not. The equal protection caluse is a product of the human mind. On the other hand, we might say that given that humans have created the equal protection clause, it's meaning is independent of what we think about its meaning.
--Determinacy. And of course, there is (or was) a raging jurisprudential debate over the determinacy of law. So those who hold that the law is indeterminate, are not realists in this sense.
Friday, May 30, 2003
New Papers on the Net Here is the roundup:
This article sidesteps these debates over preemption and instead argues that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national law-making process. Because of the size and heterogeneity of the population that it governs, Congress has institutional tendencies to avoid politically sensitive issues, deferring them to bureaucratic resolution and instead concentrating on constituency service. Non-federal politicians can disrupt this tendency to ignore or suppress political controversy, by enacting state laws that regulate business interests, thus provoking those interests to seek federal legislation that will preempt the state legislation. In effect, state politicians place issues on Congress' agenda by enacting state legislation. Because business groups tend to have more consistent incentives to seek preemption than anti-preemption interests have to oppose preemption, controversial regulatory issues are more likely to end up on Congress' agenda if business groups bear the burden of seeking preemption. Moreover, the interests opposing preemption tend to use publicity rather than internal congressional procedures to promote their ends. Therefore, by adopting an anti-preemption rule of construction, the courts would tend to promote more highly visible, vigorous style of public debate in Congress.
Leiter on the Hermeneutics of Suspicion Today at Oxford, Brian Leiter (Texas, Law & Philosophy) presents The Hermeneutics of Suspicion.
Thursday, May 29, 2003
Balkin on Hibbs Jack Balkin has a very good post on Nevada Department of Human Resources v. Hibbs, the Supreme Court's most recent 11th Amendment decision in which O'Connor & Rehnquist both joined the liberal/moderate wing of the Court.
Hasen on a Truce in the Confirmation Wars Check out Rick Hasen here critiquing my most entitled Confirmation Wars: Transformational Moves.
New Papers on the Net Here is the roundup:
Markel on Mercy I highly recommend Daniel Markel's paper, Against Mercy, forthcoming in the Minnesota Law Review. Here is an excerpt from the abstract:
Blogging from Rutgers: Norm Acquisition and Punishment This week I am attending the seminar on Mind, Language, and Law at Rutgers Law School in Camden--organized by Dennis Patterson Kim Ferzan . Yesterday, the speaker was Stephen Stich and among the many topics he covered was norm acquisition. Stich's hypothesis is inspired by the fact that evolutionary models of cooperative solutions to iterated Prisoner's Dilemma games all involve punishment for defection from cooperation. In particular, Stich hypothesizes that humans have a mechanisms that internalizes norms backed by an effective punishment mechanisms. Stich's particularly vivid metaphor was Pac Man. Stich imagines that humans are lot Pac Man, racing around the social world. Whenever they see a punishment enforced norm, they swallow it, more or less willy nilly. Stich is a careful (if enthusiastic thinker), so he recognizes a number of obvious problems with this view. For example, if we make the reasonable assumption that norms are internalized by humans who never actually observed punishments, then the question arises: how (precisely) does punishment play a role in norm acquisition. Let’s assume that Stich is able to answer this question. His theory, if true, may have some interesting implications for legal theory. Here are some possible implications that might be explored:
--Various informal social sanctions may be important to norm creation, and the law may interact in various ways with such sanctions. For example, legal rules might prohibit or enable such sanctioning behaviors.
--Some economic views of law assume that preferences are independent of legal rules, but Stich’s theory, if true, would show that this assumption is systematically false.
Duff A book by Antony Duff is something to be celebrated. His Punishment, Communication, and Community is new in paperback from Oxford University Press. From the abstract:
Wednesday, May 28, 2003
New Papers on the Net Here is the roundup:
Peter Swire (Ohio State) posts Efficient Confidentiality for Privacy, Security, and Confidential Business Information.
Theodore Eisenberg (Cornell) and Elizabeth Hill (New York University) offer Employment Arbitration and Litigation: An Empirical Comparison.
Heinrich Schneider uploads The Constitution Debate, forthcoming in European Integration online Papers.
Luis Garicano and Thomas Hubbard (Chicago, Business) post Specialization, Firms, and Markets: The Division of Labor Within and Between Law Firms.
Bronwyn Hall (UC Berkeley) posts Business Method Patents, Innovation, and Policy.
Peter Alldridge (Cardiff, Business) offers Smuggling, Confiscation and Forfeiture, forthcoming in the Modern Law Review.
Nari Lee (University of Turku) uploads The Patent Subject Matter Reconfiguration and the Emergence of Proprietarian Norms - The Patent Eligibility of the Business Methods.
Laura Hoyano (Oxford) posts Misconceptions about Wrongful Conception, forthcoming in the Modern Law Review.
Yariv Brauner (New York University) offers Taxing Cross-Border M&A in a Globalizing World.
Robert Merges (UC Berkeley) uploads The Uninvited Guest: Patents on Wall Street.
Mark Drumbl (Washington and Lee) posts several papers:
Confirmation Wars: Transformational Moves
The First Mover Problem But who will have the confidence to make the first move? There is a problem of trust and confidence that is difficult to solve given the way the judicial selection problem is currently framed. Suppose President Bush were to make the move that Taylor suggests and promise to nominate candidates who would preserve the ideological balance of the current Supreme Court. Would this be sufficient to restore mutual confidence? Imagine that the President does indeed consult with Senate Democrats on various possible nominees for a Supreme Court vacancy. Lurking in the background of such consultations will be the hot button issues that Taylor identifies (abortion, affirmative action, campaign finance, etc.). What if Rehnquist resigns? Will the Democrats agree to confirm an equally conservative nominee without a fight? Such a decision will not be popular with the Democratic base. Will Democrats trust President Bush to carry out his promise when (and if) Bush is given the chance to nominate a replacement for a more moderate Justice? This latter question is given additional urgency if we contemplate what it would mean to preserve the ideological balance of the Court in the event that Justice O'Connor were to resign. O'Connor is quite conservative on most issues, but moderate on a few, hot-button, issues. How could the Democrats trust any candidate who share O'Connor's general outlook to vote as O'Connor did in Casey to preserve the core of Roe v. Wade? Democrats will evaluate this issue with historical experience in mind--think Blackmun and Souter. But how could President Bush appoint any replacement for O'Connor who would inspire confidence by Democrats? Such a nominee would inevitably reject many of O'Connor's conservative beliefs and swing the balance of the Court to the left on many issues where O'Connor is the swing vote. No set of replacements for O'Connor and Rehnquist is likely to preserve the ideological balance of the Court. Justices are too unpredictable if they are not "extremists," or they are too "extreme" (either to the left or to the right) if their votes are predictable.
The Fundamental Assumption Both Democrats and Republicans seem to share a fundamental assumption about the current confirmation war. That fundamental assumption is that judging is inherently political in nature. If we concieve of the judiciary as a third political branch of government, with the authority to use the powers of judicial review and constitutional and statutory interpretation to achieve a political agenda, then control of the judicial branch is the ultimate political prize. The reason that neither party can trust the other is that the stakes are too high. Because judges are elected for life terms, the power to appoint young, highly political judges who constitute a majority of the United States Supreme Court is roughly equivalent in importance to gaining an electoral lock on the Presidency and the Congress for a period of one or two decades. When the stakes are that high, then two conclusions follow. First, if one party believes it has the power to control the Supreme Court it will be loathe to forgo that opportunity voluntarily. Second, for the same reason, neither party can trust the other to reciprocate at the next changing of the guard.
A Truly Radical Move A truly radical move is one that would call the fundamental assumption into question. That is, a truly radical move would be for either the Republicans or the Democrats to suggest that judges should be selected on the basis of their possession of the judicial virtues, rather than their political ideology. Such a move would not be pleasant for either party. Judges who are committed to the rule of law are likely to offend both Democrats and Republicans. For example, a judge who takes precedent seriously would be committed to both Hans v. Louisiana and Roe v. Wade, disappointing both the right and the left. But the point of nominating and confirming neoformalist judges is not ideological balance. The point of a radical move to restore the rule of law is that it offers both parties a principled basis for agreement. So long as we think of judges as politicians with life tenure, a truce in the confirmation wars will be difficult to negotiate.
Hooker on Fairness at Oxford Brad Hooker presents a lecture with the sparse title Fairness at Oxford today.
New from Oxford University Press Simon Chesterman new book Just War or Just Peace? Humanitarian Intervention and International Law is due from Oxford University Press.
Tuesday, May 27, 2003
Confrimation Wars Department: Lott Endorses Nuclear Option Marcia Oddi of the Indiana Law Blog brought a very interesting article in the Clarion-Ledger to my attention. Here is an excerpt:
Confirmation Wars Department: Bernstein on Pickering Nomination David Bernstein comments on the Pickering nomination here.
Blogging from Rutgers Today, I will blogging intermitently from the Seminar on Mind, Language, and Law organized by Dennis Patterson and Kimberly Ferzan at Rutgers. Today’s speaker is the distinguished philosopher Brian McLaughlin, from the Philosophy faculty at Rutgers.
New Alexy from Oxford Robert Alexy's The Argument from Injustice: A Reply to Legal Positivism has been published by Oxford. From the abstract:
Workshops Today Here is the roundup:
At Oxford, Caroline Shackleford presents Mediation of the horizontal application of the South African bill of rights - an instance of power-sharing.
Monday, May 26, 2003
Anderson on the Law of War Kenneth Anderson (American University) just posted Who Owns the Rules of War? The War in Iraq Demands a Rethinking of the International Rules of Conduct on SSRN. Here is the abstract:
New Papers on the Net Here is the roundup:
Bruno Frey and Alois Stutzer (Zurich, Institute for Empirical Research in Economics) upload Testing Theories of Happiness. From the abstract:
Paula Cody and Kay Harrison (Government of New Zealand) post The Treaty Settlement Process in New Zealand.
Douglas Kysar (Cornell) posts The Expectations of Consumers, forthcoming in the Columbia Law Review. From the abstract:
Catching Up Department Princeton University Press recently published Law's Dream of a Common Knowledge by Mariana Valverde. From the abstract:
Sunday, May 25, 2003
Hasen on the Realpolitik of Filibustering Judicial Confirmation I posted earlier today on the strategic implications of a Republic move to change Rule 22 in order end the filibuster of Estrada and Owen. Perhaps my most important point is that Supreme Court vacancies change the political equation. Rick Hasen adds some very nice points here. Importantly, he notes, "The conventional thinking in the campaign finance world is that Rehnquist's vote is the key to upholding many features of the BCRA."
Sandefur on Judicial Civil Disobedience Tim Sandefur has a good post on Judge Pregerson and the competing claims of conscience and equity here.
Symposium Issue of Ethics on G.E. Moore The issue is available online, with papers by Christopher Heath Wellman, Stephen Darwall, Connie S. Rosati, Nicholas L. Sturgeon, Frank Jackson, Michael Smith, Thomas Hurka, Jonathan Dancy, and Donald H. Regan.
The Senate's Constitutional Duty But they go on to state:
The Realpolitik of the Filibuster Binder and Smith then go to provide a nice analysis of the political consequences of a Republican effort to change the filibuster by one of the parliamentary maneouvers that can circumvent Rule 22's requirement of 2/3rds vote to close debate on a rule change:
The Politics of Going Nuclear When Senator Byrd pioneered the use of the so-called nuclear option during his tenure as Senate Majority leader, his tactics were almost completely invisible to the public and the general media. The actual technique would be a point of order followed by a nondebatable ruling by the chair--sustained. Then the rule change could be adopted by majority vote. And then it would be applied, and a majority would confirm Estrada, Owen, and the rest. Of course, the Democrats have weapons left in their arsenal. They could shut the Senate down by calling for a roll call vote on every matter put before the Senate for unanimous consent. But is it so clear that the Republicans would be seen as the villains if the Democrats shut down the Senate? By way of analogy to the Republican shut down of government over the budget impasse during the Clinton administratin, it seems far more likely that the political losers would be the Democrats. But this does not mean that the nuclear option is politically viable. The decisions to employ Senator Byrd's tactics will not come easy to the Republicans--in part, because Republicans resented those very tactics when they were in the minority.
Waiting for the Supreme Court Vacancies Indeed, it is not clear that the Republican caucus is ready to go nuclear now. Some members of the Republican caucus want to wait until the Democrats expand the filibuster, either to a third lower-court nominee or to a Supreme Court nominee (in the fall?). But if the Republicans wait until there is a Bush nominee to the Supreme Court, the political landscape will change again. The Democratic party has attempted to galvanize its base on the basis of the importance of judicial nominations to the Courts of Appeals and the District Courts, and the Republicans have done the same. But neither party has really succeeded in this effort. The truth is that it will take a Supreme Court vacancy to bring this issue to public consciousness. If there are two vacancies (Rehnquist and O'Connor) are the most likely, then the fate of Roe v. Wade will be on the line. This will give the Democrats considerable political cover for extreme action in the event of a Republican nuclear option, and vice versa. But at that point, the game will be being played for very high stakes indeed.
Strategic Implications So what are the strategic implications? My take is that if the Republican leadership decides to go for a change in the filibuster rule, it would be in their interest to do so as soon as possible--before the Supreme Court is on the table in popular perception. Democrats would be wise to delay this move by any technique available--including an offer to faciliate confirmation of one or more of the controversial lower court nominees. Who knows what decisions are being made behind closed doors? Perhaps something dramatic will happen in the next few days or weeks. But if the status quo remains in place and there are two Supreme Court resignations in July, we are headed for interesting times. For more, see Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy.
Hasen: Weighing in on the "Buying Time" Controversy Lawprof and political scientist Rick Hasen weighs in on the controversy over the "Buying Time" study re sham issue advocacy ads. This issue is important in the context of the Supreme Court's review of the three-judge District Court decision, upholding parts and striking down parts of the McCain-Feingold campaign finance legislation.
Saturday, May 24, 2003
RSS Feed Updated to Blog Matrix At Chris Bertram's suggestion, I have updated my RSS feed to Blog Matrix. The link is available on the left sidebar towards the top.
Manheim and Solum on the Economics of Domain Name Policy Karl Manheim (Loyola Marymount) and Lawrence Solum (Loyola Marymount and University of San Diego) have posted An Economic Analysis of Domain Name Policy on SSRN. Here is the abstract:
New Papers on the Net Here is the roundup:
Friday, May 23, 2003
Today My father, Clayton Lawrence Solum, passed away recently, and his memorial service will be held later today. I miss him more than I can say. Regular blogging will resume soon, but in the meantime, here are some recent posts of which I am especially proud:
Breaking the Deadlock: Reflections on the Confirmation Wars
Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts
Thursday, May 22, 2003
Estrada's Answer to the Roe Question I just read Toobin's New Yorker piece on the confirmation wars--time sensitive link here (thank you Howard Bashman). Here are reactions by Adam White and by Bashman. What struck me is the following passage:
Posner on Plargarism It's fraud, not theft. Here.
New Papers on the Net Here is today's roundup:
The Other Go to Chris Bertram's marvelous Junius, just because it is so great, and you might check out a moving quote from Buber, which is posted on Junius here.
Straussians I've mostly ignored the controversy over the influence of Leo Strauss on neocons, but Antidotal has a very nice post.
Utilitarianism Reborn Department Philosophy.com has a very thoughtful comment on economist John Quiggan's recent claim that utilitarianism has no serious competitions as a public philosophy. My comments were here and here.
Hasen on the Filibuster Check out Rick Hasen's commentary on a recent Norm Ornstein op/ed on the filubster of judicial nominees. The central issue discussed by Ornstein is the question whether the entrenchment of the filibuster is unconstitutional. This questions is, in my opinion, a red herring. The filibuster is not entrenched beyond change by majority vote--because a ruling from the chair that Senate Rule 22 does not apply to itself (or does not apply to itself in executive session or some other roughly equivalent ruling) can be sustained by a simple majority vote. There is a constitutional question: does the Senate have a duty to provide advice and consent within a reasonable time? And that question is a no brainer: of course it does. But is the Senate likely to fulfill that duty when the majority wishes to obstruct the President? Not unless the President were willing to use recess appointments to force the Senate's hand. But our current situation involves minority obstruction, and that cannot possibly be unconsitutional--because the minority only can obstruct with the tacit consent of the majority.
Wednesday, May 21, 2003
Welcome to the Blogosphere To MAIZE-N-BLUE BOOK, a blawg by a University of Michigan law student.
Falk on High Politics Reacting to my post from this past Sunday, A Neoformalist Manifesto, Economist Jonathan Falk writes:
The problem, of course, is twofold. First, judges are impatient and unwilling to wait for the fullness of time to justify their views. (I ignore the substantial number of times when the fullness of time rejects their views.) Second is the problem that judges are expected to do justice in the case before them. It seems unsatisfactory to say to Roe, "Well, I wish you could have an abortion, and a proper political system which recognized your liberty should allow you to have an abortion, but my hands are tied." After all, it seems to be such a short step from the "should" in the previous sentence to "will," given that the judge has the power to make "should" into "will." But it isn't. What is really needed here is another judgely virtue which doesn't make your list: humility -- that even beyond stare decisis, there are decisions that are not theirs to make.
Shavell on the Foundations of Economic Analysis of Law Steven Shavell (Harvard) has posted several chapters from his new book, Foundations of Economic Analysis of Law (Harvard University Press, 2003), on SSRN. Here are the links:
Economic Analysis of the General Structure of the Law
Economic Analysis of Public Law Enforcement and Criminal Law
Economic Analysis of Litigation and the Legal Process
Economic Analysis of Contract Law
Economic Analysis of Property Law
Economic Analysis of Accident Law
New Papers on the Net Here is the roundup:
Kmiec on the Filibuster Doug Kmiec has an L.A. Times op/ed entitled A Catch in Senate Clogs Judicial Pipeline. Here is a taste:
That the Senate has disregarded this ancient precept and is operating outside the Constitution gives the freshmen a chance to set things right. It's not complicated. Have the same majority favoring Estrada pass a rule amendment restoring the right of a simple majority to close debate on all judicial nominations. If an objection or point of order is raised in favor of the unrepresentative (and unadopted) 60/67-vote rules, the presiding officer should overrule the objection, reminding the objectors that a majority of all elected senators must retain at least one chance in every Congress to amend its rules.
Tuesday, May 20, 2003
Fear and Loathing in New Haven
Neoformalism versus High Politics . . . and that reminds me that I need to reply to the latest post by Jack Balkin, the Neo of contemporary legal theory. Balkin is one of the mater tacticians of legal argument--he always has a move, a distinction, an argument, a slide, a theory. Our exchange grew out of a column by Edward Lazarus on the virtue of judicial integrity. Although quite critical of Lazarus's critique of a dissenting opinion by Alex Kozinski, my post, Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski, argued that the virtue of justice is essential to judicial integrity and that this virtue requires fidelity to law--following the rules laid down. To cash out the notion of fidelity to law, I gestured toward a neoformalist theory of constitutional adjudication that emphasized precedent, text, structure, and history (in that order) as the guideposts for the decision of constitutional cases. Jack Balkin responded in a post entitled Good Judging and "Following the Rules Laid Down.", taking me to task for the implications of neoformalism with respect to the Supreme Court's equal-protection gender-discrimination jurisprudence. Jack argued that these cases could not be justified by the precedents, the text of the equal protection clause, or by the original meaning of the Constitution. They could only be justified by a picture of constitutional interpretation that makes "high politics" a legitimate basis for constitutional decision. Nonetheless, Balkin argued, high politics is law. I countered in a post titled A Neoformalist Manifesto, elaborating with a fuller sketch of a neoformalist theory of constitutional adjudication and arguing that high political constitutional decision making would undermine the rule of law. Balkin has now replied in a post entitled Good Judging and "Following the Rules Laid Down," Part II. So now it’s my turn.
First Interlude Northbound on Interstate 15, North of Barstow. Before dusk. There it is on the left. Calico. A ghost town. And today, of all days, I am thinking of ghosts. Memories flash. I'm a small boy exploring a ghost town with my father. I am hunting for hidden gold and watching out for the ghosts. I blink and I'm back on the Interstate, but the ghosts are still with me.
Constitutional History and the Ghosts of Theories Past The ghosts of constitutional history are still with us. Contemporary jurisprudence is haunted by Lochner and the mythical switch in time that saved nine. By footnote four and Brown v. Board of Education. By Henry Hart and Alexander Bickel. By Miranda and Baker v. Carr. By Griswold and Roe. So much history. How are we to reconcile the New Deal critique of the Supreme Court with the great decisions of the Warren and Burger Courts? Why is Lochner wrong and Roe right? Why defer to Congress on issues of federalism but not on the freedom of speech? Theories come and go. John Hart Ely's Democracy and Distrust. Laurence Tribe's multi modeled American Constitutional Law. Ronald Dworkin's Forum of Principle. Bruce Ackerman's We the People. Sandy Levinson and Jack Balkin's High Politics. Much changes, but some things stay the same. Paul Brest inters originalism in The Misconceived Quest for the Original Understanding. Everyone agrees that Lochner was wrongly decided. Warren gives way to Burger gives way to Rehnquist. And we are still at it, but the game has changed. Originalism rises from the ashes, and serious scholars write in defense of Lochner. Lopez and Morrison. And then there is Bush v. Gore. So many ghosts.
Second Interlude Baker, California. Dusk. Baker is a dry desert town, which has only one claim to fame--the world's tallest thermometer. I am at an intersection. I could turn left. I look down the road. Lot's of folks have stopped at the Denny's. I could turn right. Big crowds at Bun Boy and the Mad Greek. Which way? And then I see another way. What looked like a driveway is a narrow street . . . no, a highway, California 127, the road to Death Valley. I decide--neither left nor right. I leave the bright lights and crowded restaurants behind and proceed through the intersection, straight ahead. In a just a few minutes, I am utterly alone.
The Case Against Neoformalism In his most recent post, Balkin makes the normative case against neoformalism. Last time, Balkin used the Supreme Court's gender-discrimination equal-protection decisions as his normative club, arguing that these decisions were inconsistent with the precedents, the text, and the history, and therefore could only be justified by accepting that constitutional law is high politics. I was forced to bite the bullet. Yes, gender equality is important, but no, judicial fiat wasn't the only way to get there. Now Balkin steps up his attack. Here are his moves:
The Tender Mercies of Legislation Now comes Balkin's real argument. Because it is completely fair for Balkin to ask, "What if your theory had been in place forty years ago? What then?" This is the way he puts it:
Balkin's Ingenious Argument But then it hits me. Balkin's argument rests on a very clever rhetorical trick. Balkin and I are debating constitutional theories: High Politics versus Neoformalism. Balkin's argument is that high politics guarantees outcomes that seem highly desirable (gender equality, racial equality, and all the rest), whereas neoformalism must rely on the tender mercies of the political process. His evidence is that his theory endorses the methods and outcomes reached by the Warren and Burger Courts, whereas my theory does not. Balkin concedes political processes might have reached these same results through ordinary legislation or constitutional amendment, but, . . . and this is the crucial move, so watch carefully . . . but that is just too risky--because ordinary politics might fail. Who knows what would have happened if the Warren Court hadn't pursued the agenda of high politics? But this argument is a sham. It is audacious but atrocious. Because there was no guarantee that high political judging would produce the results that it did. It was an accident of history that Earl Warren was appointed Chief Justice. And that Bill Douglas was already on the Court. And that Eisenhower appointed William Brennan. And that Kennedy rather than Nixon won (or stole) the razor-close election of 1960. Balkin is comparing our ex post knowledge of how the Warren and Burger courts turned out with a hypothetical ex ante assessment of how things might have gone if the Warren Court had operated on the basis of a neoformalist constitutional methodology. And when Balkin makes the comparison, he assumes certainty for the ex post evaluation and notes the lack of certainty from the ex ante perspective. In other words, he is playing with a loaded deck.
And here is the counter move that sinks Balkin's argument. So let's make another comparison, this time ex ante to ex ante. It is 2003. We have an ideologically conservative Supreme Court--some would say the majority of the Court is on the extreme right. Suppose you share Jack Balkin's politics and you have a magic wand. You can wave it up and down, and all nine justices will become true believers in the high politics theory of constitutional interpretation, but they will retain their own political orientations. Rehnquist, Scalia, Thomas, Kennedy, and O'Connor will all become true believers in the proposition that they ought to decide cases in accord with their high political ideology. Or you can wave your magic wand from side to side, and all nine Justices will become neoformalists--looking first to precedent, then to text, and finally to historical evidence of original meaning. Which way would you wave? I know, I know. This isn't a fair comparison either. And that is precisely the point--the glory point. Neither Balkin's comparison or mine provides a meaningful comparison of the long-run effect of adherence to our respective constitutional theories. A meaningful comparison can't start with a jury rigged description of particular historical circumstances. If we are going to ask the question, "which constitutional theory will produce better results?," we need to ask that question over the long haul, not at a particular point in time. Once we reframe the question in this way, it becomes clear that our best evidence is to be gleaned from comparative constitutional practice. When we compare our constitutional system with comparable polities, the United Kingdom, Canada before and after the Charter, and so forth, then we can see that Balkin's argument is quite simply a colossal failure. One just can't make out the case that realist constitutional jurisprudence is essential to the realization of human liberty and equality. Moreover, if we look at the long run of American constitutional history, it is very difficult to make out the argument that federal judges or Justices of the Supreme Court are reliable. Indeed, Balkin's own argument shows that this is not the case. Balkin's rhetorically clever argument against neoformalism began with the premise that Supreme Court Justices before the Warren Court had made bad decisions that would have bound the Warren Court if it had adopted a neoformalist methodology. In other words, pre-Warren, we were at the tender mercies of a Supreme Court whose high politics provided no guarantees of liberty or equality--at least according to Balkin. Thus, Balkin's own premise shows that over the long haul, putting the awesome power of ideological judging in the hands of Supreme Court Justices leaves us at the tender mercy of a shift in the high political winds. I can breathe again.
Am I Having My Cake and Eating It Too Having dodged that bullet, I immediately face another. Balkin continues:
The Ratchet Balkin finds it ironic that a neoformalist would endorse a muscular version of the doctrine of stare decisis. I must confess that when I put Balkin's powerful rhetoric to the side, the irony escapes me. Of course, a legal theory constructed to realize the rule of law will place great weight upon the rules laid down. Formalism and stare decisis, like love and marriage, go together like a horse and carriage. But Balkin's objection has a flip side, which is much more serious. Of the many emails that I've received about A Neoformalist Manifesto, the most critical have come from the right, and they have emphasized the ratchet. Most of you already know about the ratchet, but for those don't, here's the way the argument goes. When realists rule the roost (i.e. have a majority on the Supreme Court), they make realist decisions--shaping the constitution around their personal political ideologies. Now suppose that a formalist majority is appointed to the Court, and that these formalists adhere to the doctrine of stare decisis. They will follow the realist decisions of the predecessors, but decide open questions of law on the basis of the constitutional text and historical evidence of original meaning. Now the pendulum swings again. The realists come back in. They can overrule the formalist decisions, because they don't believe in stare decisis. If this cycle continues, we have a ratchet. Sometimes to make the point perfectly clear, people use the redundant phrase, "one way ratchet." After each realist/formalist cycle, the constitution moves further in the realists' preferred direction. There is something to the ratchet. But ultimately, this argument fails. The rule of law cannot be realized by conceiving of the practice of judging as a war--to be won by one side or the other. The rule of law requires cooperation, and cooperation requires trust. A selective doctrine of stare decisis, which enshrines the good decisions and rejects the bad ones will not foster the depoliticization of the judiciary. Quite the opposite. Such a practice is likely to reinforce the perceptions that avowedly formalist judging is really realism in disguise and that the rule of law is a flag of convenience. The rule of law requires a heavy price from both left and right. Stare decisis is on the bill, and the goods will not be delivered if the price is not paid.
Neither Left nor Right And so I find that I can turn neither left nor right. On the one hand, I find that I cannot endorse the reasoning of many of the Warren Court decisions. It is tempting. Certainly, there is cover. One can always slip on the coat of law as integrity or don the fedora of a New Deal constitutional moment. And even if one suspects that these garments are the emperor's new clothes, one can take comfort in the company one keeps. On the other hand, I cannot endorse a neoformalism that incorporates textualism and originalism but leaves out the doctrine of stare decisis. There is temptation on that path as well. There may be fewer at the party, but the companionship is all the warmer when one is a member of the brave few. Neoformalism is a lonely road. I have been going that way for a while, and if you are like me, you know that there is not much company. Balkin thinks that neoformalism is the easy path, but he does not see beyond the first curve in the road.
`Certainly,' said Alice.
`And only one for birthday presents, you know. There's glory for you!'
`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'
Is High Politics Law? Oh oh. It looks like Balkin is on to something. When Balkin says "I think that history of the practice one is arguing about counts for something. And . . . these practices are much much more flexible that Larry's model of good judging permits," he looks to be making a sound move. Indeed, he is making the kind of Wittgensteinian move that allowed H.L.A. Hart to get the whole enterprise of contemporary analytic jurisprudence off the ground. How can I say that high politics is not law? Do I really think that Miranda isn't law? And not just Miranda, but a whole hose of Warren and Burger Court decisions? But of course, that is not what I am saying. My claim wasn't that decisions made on the basis of high politics are not law. Miranda is still good law. In fact, given my view of stare decisis, it not only is law, it should remain law. If that is what Balkin's argument amount to, then it is simply nonresponsive. So what else could Balkin mean?
Is Decision on the Basis of High Politics Decision on the Basis of Law? So Balkin must be making a more ambitious claim. Perhaps he is arguing that decision on the basis of high politics is decision on the basis of law. If this is his claim, then is his argument valid? Obviously not. If we were to discover that from 1872 through 1897, the Supreme Court decided many constitutional cases on the basis of a flip of a coin, those decisions would still be law. No question about that. But would they be decisions made on the basis of law? Well, no. So are decisions on the basis of high politics decisions on the basis of law? In order for that to be the case, Balkin would need to claim that the political ideologies of Supreme Court Justices are law. But now his own argument turns against him. Because the practice is not to treat the ideologies of the justices as law. Put aside the practical problem that the various Justices have complex ideological views that do not easily sum into a single coherent whole. Even if there were something that we could call the high political ideology of the Supreme Court, it isn't law. Only those portions of the ideology that have been translated into decisions are law. OK. Perhaps that is what Balkin means? But again, no, for two reasons. First, this would mean that the first decision to embody a particular ideology was not based on law. Second, the decisions are nothing other than the precedents, and if Balkin has made anything clear it is that he is claiming that decision according to law is not limited to decision according to precedent. And so? And so, Balkin cannot make out the claim that decision on the basis of high politics is decision on the basis of law.
Is Decision According to High Politics Legitimate? But perhaps Balkin misspoke or perhaps I have misinterpreted him. Because if we look closely at his argument, we find that this is the conclusion: "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct." A ha! Why didn't I see this before. Now I think I get what Balkin is up to. And I'm worried. Very worried. Because Balkin has just made one of the most famous (and famously slippery) moves in all of contemporary jurisprudence. This is Dworkin's Patented Triple Action Is to Ought Super Slide. Here is how it works. Step One: To understand a practice, we must take the internal point of view--looking at the practice from the inside. Step Two: Once inside, we must interpret the practice to be the best that it can be. Step Three: Having interpreted the practice from the vantage point of Step One according to the criterion provided by Step Two, it follows that the practice cannot now be regarded as illegitimate. Damn. I've come so far. I thought I had Balkin, but now, at the very end, he pulls a Dworkin on me. What I am supposed to do now. I could Raz Balkin, but there is no way to Raz someone in a blog. It takes way too long. I'm just going to have to let him get away with the Dworkin, but get around it somehow. But how?
The Implications of the Interpretive Turn So what are the implications of Balkin's interpretive turn? What happens if we accept Balkin's assertion that "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct." Hmm. This seems to translate into, any feature of the practice of judging that is so pervasive that it accounts for much of the history of the practice is legitimate. Whoa! That has interesting implications. I can feel a reductio coming on, but that would be taking a cheap shot. Here is a more elegant piece of argumentative ju jitsu. Balkin's interpretive turn commits him to the proposition that neoformalism is legitimate if the history of the practice of constitutional adjudication includes a great deal of neoformalism. Now Balkin keeps denying that this is the case, but it takes only a moment’s reflection to realize that he couldn't really have meant that. Of course, an awful lot of the ordinary run-of-the-mill constitutional decision making (even by the Supreme Court) is neoformalist. Courts follow constitutional precedents all the time. And that means that neoformalism is, according to Balkin, a legitimate method of constitutional adjudication. Given that two methods of constitutional adjudication are "legitimate" in the sense that they are "much of the history of the practice" of constitutional adjudication, does it make sense to ask the question, should we use both of these methods or is one better than the other? Well, yes. That is a perfectly sensible question. And that brings me round to the arguments I made in A Neoformalist Manifesto, arguments that Balkin has yet to answer. The rule of law provides a very great good. High political constitutional adjudication threatens the rule of law. Neoformalism preserves it.
Coda California Highway 178, West of Shoshone. Night. I made the turn just before Shoshone--really just a crossroads and a general store. I'm on 178, driving through the hills. Random thoughts, once again. Driving to Vegas. Gonzo. Hunter S. Thompson. Fear and Loathing. Then back to Balkin. Thinking about Balkin's arguments. I am in a sea of black landscape and brilliant stars, my car goes round a bend and comes out on the other side of a hill. And there it is, the orb, hanging low and white in the sky, with that lopsided face grinning at me. I push the search button on the radio, and something extraordinary happens. The gritty alto voice of Grace Slick fills the still desert air. If you are very quiet, you can still hear her voice echoing:
When logic and proportion have fallen sloppy dead,
And the white knight is talking backward,
and the red queen's off with her head,
Remember what the dormouse said:
"Feed your head! Feed your head!"