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.
Thursday, June 30, 2005
Call for Papers: Respect
Pettit on the Many as One Philip N. Pettit (Princeton University - Department of Politics) has posted On the Many as One (Philosopy and Public Affairs, September 2005) on SSRN. Here is the abstract:
Wednesday, June 29, 2005
Read Ernest Miller on Grokster If you are interested in Grokster, you really want to read this post by Miller. Like much of Miller's work, his analysis of Grokster is very fine indeed. Very highly recommended!
Grokster and the Future of P2P What are the implications of the Grokster decision for the future of P2P filesharing? Superficially, the fact that MGM prevailed in the Supreme Court might seem like a negative for P2P, I believe that quite the opposite is true. Why?
Garnett on Transportation and the Urban Poor Nicole Stelle Garnett (Notre Dame Law School) has posted The Road from Welfare to Work: Informal Transportation and the Urban Poor (Harvard Journal on Legislation, Vol. 38, No. 73, 2001) on SSRN. Here is the abstract:
Ellman on Unanimity in Brown v. Board Stephen Ellmann (New York Law School) has posted The Rule of Law and the Achievement of Unanimity in Brown (New York Law School Law Review Vol. 49, pp. 741-784, 2004-2005) on SSRN. Here is the abstract:
Stark on Globalization, Women, and the Law Barbara Stark (Hofstra) has posted Women, Globalization, and Law: A Change of World on SSRN. Here is the abstract:
Smith on Autonomy, Equality, and Voting Rights Terry Smith (Fordham University School of Law) has posted Autonomy Versus Equality: Voting Rights Rediscovered on SSRN. Here is the abstract:
Tuesday, June 28, 2005
Pearce on Inequality in the Market for Justice Russell G. Pearce (Fordham University School of Law) has posted Redressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Help (Fordham Law Review, Vol. 73, p. 969, 2004) on SSRN. Here is the abstract:
Brodin on "Fact Verdicts" Mark S. Brodin (Boston College - Law School) has posted Accuracy, Efficiency, and Accountability in the Litigation Process - The Case for the Fact Verdict (University of Cincinnati Law Review, Vol. 59, pp. 15-111, 1990) on SSRN. Here is the abstract:
Leib on Choices About Choice Ethan Leib (Hastings) has posted Responsibility and Social/Political Choices about Choice; Or, One Way To Be a True Non-Voluntarist on SSRN. Here is the abstract:
Pettit on Contractual Morality Philip N. Pettit (Princeton University - Department of Politics) has posted Can Contract Theory Ground Morality? (MORAL THEORIES, J. Dreier, ed., Blackwell, 2005) on SSRN. Here is the abstract:
Monday, June 27, 2005
The Grokster Remand & Mandate The final paragraphs of Grokster reward a second & careful look. Here's what Souter writes:
There is substantial evidence in MGM?s favor on allbelements of inducement, and summary judgment in favorbof Grokster and StreamCast was error. On remand, reconsiderationb of MGM?s motion for summary judgmentb will be in order.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
Geidner on Volokh on Divisiveness and the Ten Commandments Cases Check out Chris Geinder's post on Law Dork. Here's a taste:
More on Footnote 12 For more on Footnote 12 of the Grokster decision, surf on over to Edward Lee's Lee Blog. Here is a taste:
Update: And for more on Footnote 12, check out Randy Picker on Picker's MobBlog with really terrific post.
Footnote 12 in Grokster Because Grokster was decided on an inducement theory, the crucial question--from a practical point of view--is what constitutes sufficient evidence of inducement. In particular, is evidence of "intent" required. If so, then "legal engineering" (see post below) can circumvent liability. If not, then things would get much more interesting. So consider this passage from Justice Souter's opinion:
The Grokster Concurrences Six justices joined concurring opinions in Grokster. Ginsburg was joined by Rehnquist and Kennedy. Breyer was joined by Stevens and O'Connor. Ginsburg and Breyer disagree about the meaning of the Sony "substantial noninfring use" test, and that disagreement is potentially important to the future of P2P litigation, and hence to the future of copyright. What is the significance of these opinions? Here is a key passage from near the conclusion of Justice Ginsburg's concurrence:
Grokster: A "Legal Engineering" Failure Over at MobBlog, Doug Lichtman has a post bemoaning the legal standard for inducement adopted by the Court:
The Treatment of Sony in Grokster One of the most important issues in Grokster case is the fate of Sony, the prior Supreme Court case,in which the Supreme Court held that the Betamax (VCR) would not serve as the basis for a contributory infringement action against Sony, because it was capable of "substantial noninfringing uses." Here is what today's unanimous opinion says about Sony:
Holding in Grokster Here is the statement from Justice Souter's Opinon for a unanimous Court:
Opinions in the Grokster Case Here they are:
AP Story on Grokster The AP Story is out:
No Announcement on Supreme Court Retirements With the rumors flying about a possible Rehnquist (and/or O'Connor) retirement, the Court has adjourned without an announcement.
Grokster Announced The result in the Grokster has been announced. The vague radio report suggested a loss for Grokster, and Scotus Blog just reports a loss as well:
Grokster Today The Grokster decision should be announced momentarily. I will be participating in a group effort on Picker MobBlog, others include Doug Lichtman, Jessica Litman, Jim Speta, Julie Cohen, Lior Strahilevitz, Phil Weiser, Randy Picker, Ray Ku, Stuart Benjamin, Tim Wu, Tom Hazlett, and Wendy Gordon. Scotus Blog will have continuing coverage. On the Docket has a collection of links, the question presented, etc. Ernest Miller has a round-up of pre-decision commentary on Corante. I'll have comments in full here, with short posts over at MobBlog.
McGowan on Speech, Approximately David McGowan (University of San Diego School of Law) has posted Approximately Speech (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
Goldfarb on Ethics, Feminism, and Clinical Education Phyllis Goldfarb (Boston College - Law School) has posted A Theory-Practice Spiral: The Ethics of Feminism and Clinical Education (Minnesota Law Review, Vol. 75, 1599-1699, 1990) on SSRN. Here is the abstract:
Borgen on Treaty Conflicts Christopher Borgen (St. John's University - School of Law) has posted Resolving Treaty Conflicts (George Washington International Law Review, Vol. 37, 2005) on SSRN. Here is the abstract:
Petit on Freedom in the Market Philip N. Pettit (Princeton University - Department of Politics) has posted Freedom in the Market (Philosophy, Politics and Economics, Forthcoming) on SSRN. Here is the abstract:
Sunday, June 26, 2005
Legal Theory Lexicon: Libertarian Theories of Law
The libertarian tradition of social, political, and legal thought is rich and varied, no brief summary can do it justice. So the usual caveats apply. This is a brief introduction to libertarian thought with an emphasis on its role in normative legal theory. Debates about the true meaning of the term “libertarian” will largely be ignored, and will disputes over the advantages of “liberalism,” “classical liberalism,” and “libertarianism” as the best label for libertarian ideas. Enough with the caveats, here we go!
Historical Roots of Contemporary Libertarianism One good way to approach contemporary libertarian legal theory is via its historical roots. A good place to begin is with John Locke’s conception of the social contract.
John Stuart Mill and the Harm Principle John Stuart Mill was a liberal utilitarian, and so, in a sense, it is odd that he is also the author of one of the most important works in the libertarian tradition, On Liberty, a rich, complex, and easily misunderstood work. I am afraid I may be contributing to the misunderstanding by emphasizing just one idea from On Liberty--the so-called “harm principle.” Here is how Mill states the principle:
There are many different flavors of consequentialism, but in the legal academy, the most prominent strands of consequentialist thinking are associated with law and economics and assume a preference-satisfaction (or “welfarist”) notion of utility. Even among theorists who accept welfarism, there are major disagreements about how much and when government should regulate. But the general idea behind the consequentialist case for libertarianism is that markets are more efficient than regulation. This conclusion follows from fairly straightforward ideas in neoclassical microeconomics. Markets facilitate Pareto-efficient (welfare enhancing) transactions; regulations thwart such transactions.
Markets may lead to substantial disparities in wealth and income, but from the consequentialist perspective, such inequalities may not justify legislation that redistributes wealth and income. First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor. Of course, there is a well-known utilitarian argument for the redistribution of wealth and income based on the idea of diminishing marginal utility, but this argument might be outweighed by the massive utility losses caused by redistributive programs—providing a utilitarian argument against government-mandated redistribution of wealth and income. Second, even consequentialists who believe in some form of egalitarianism might believe that the worst off members of society will be better served by a libertarian regime than by a social-welfare state. We are already on a tangent, so I’m going to leave the topic of redistribution—noting that this is an issue upon which consequentialists themselves many differ in a variety of ways.
In contemporary legal theory, Richard Epstein is the “libertarian” thinker who is most strongly associated with consequentialist foundations. Because he is a consequentialist, Epstein may not be a pure libertarian, but on a variety of issues (e.g. antidiscrimination laws), Epstein takes strongly libertarian positions.
Deontological Foundations Although some libertarians are consequentialists, many others look to deontological moral theory for the foundations of their libertarianism. There are many different strategies for arguing for libertarianism based on deontological premises. One method starts with the idea of self-ownership or autonomy. Each of us has a moral right to control our own bodies, free of wrongful interference by others. This might imply that each individual has a right against theft, battery, false-imprisonment, enslavement, and so forth. Of course, these rights might justify a certain kind of government—one that protects us against invasions of our rights. But when government goes beyond the protection of these rights, then government itself operates through force or threats of force. For example, the redistribution of income might be accomplished by taxing income to finance a welfare system. Taxes are not voluntary; tax payments are “coerced” via threats of violence and imprisonment. Without consent, it might be argued, these threats are wrongful actions.
In my mind, the deontological approach to the foundations of libertarian political theory is most strongly associated with the late Robert Nozick and his magnificent book, Anarchy, State, and Utopia (see reference below).
Pluralist Foundations There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of utilitarianism, because we reject the foundations. One alternative would be to try to argue for libertarianism on the basis all of the different moral theories, but that is obviously a very time-consuming and difficult task. Another approach would be to articulate shallow foundations for utilitarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian.
One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- have good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.
A libertarian reform agenda might also include the legalization of various forms of conduct that are currently prohibited. Examples of this kind of reform might include the legalization of recreational drugs, the end of prohibitions on various consensual sexual activities, and the elimination of restrictions on gambling and prostitution.
Comprehensive Libertarian Reform: The Night-Watchman State A more ambitious libertarian agenda might be the establishment of what has been called the night-watchman state. The idea is that government would limit its role to the protection of individual liberty. Government would continue to provide police protection, national defense, and a court system for the vindication of private rights (property, tort, and contract rights, for example), but nothing else. In other words, the function of law would be limited to those activities that are necessary for the protection of private property and liberty.
The difference between the advocacy of modest and comprehensive libertarian reform may be more a matter of tactics than of principle. One might believe that there is no realistic chance of a transition to a night-watchman state. Those who advocate such comprehensive reform may undermine their own political effectiveness by sounding “radical.” So as a matter of practical politics, it may be that libertarians are most effective when they advocate marginal reforms that move the system incremental in libertarian directions.
Libertarian Revolutions: Anarchy and Polycentric Constitutional Orders Some libertarians advocate an agenda that is even more radical than the night-watchman state. One might question whether there is a need for the nation state at all. One version of this more radical approach is pure anarchism—the view that no government is necessary because individuals can coexist and cooperate without any need for state action. Another variation of this idea is sometimes called a “polycentric constitutional order.” The idea is that individuals could subscribe to private firms that would provide the police and adjudication functions of the night watchman state. Such a society would have entities that functioned like governments in some ways—with the important exception that individuals would enter into voluntary agreements for their services.
Another rival to libertarianism is the view that legislation should aim at the promotion of virtue in the citizenry. If one believes that the aim of government is to make humans into better people, then one is likely to see a variety of restricts of liberty as justified. (Let’s call views that see virtue as the end of government “aretaic political theories.”)
Aretaic political theorists are likely to disagree with libertarians over what might be called “moral legislation.” For instance, one might believe that legal prohibitions on gambling, drugs, and prostitution are justified because they help promote a moral climate where most citizens don’t want to engage in these activities. Many libertarians would say it is simply not the business of government to decide that a taste for gambling is a bad thing; whereas many virtue theorists are likely to say that this is precisely the sort of work that governments should be doing.
Conclusion Libertarian legal theory is interesting on the merits—as one of the most significant normative theories of law. But there is another important reason for legal theorists to be interested in libertarianism even if they ultimately reject it. Libertarian legal theories call into question the very purpose of law and government. A really careful evaluation of libertarianism requires that one form views about the function of law and the purposes of government, and to confront a variety of criticisms of conventional views about those topics. For that reason, thinking about libertarian legal theory is an excellent way of thinking about the most fundamental questions in normative legal theory.
Once again, this entry is bit too long, but I hope that I’ve provide a good starting point for your investigations of libertarianism. I’ve provided a very brief set of references for further exploration.
Richard A. Epstein, Skepticism and Freedom : A Modern Case for Classical Liberalism (Chicago: University of Chicago Press, 2003).
Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1977).
Saturday, June 25, 2005
Legal Theory Bookworm And speaking of Philip Pettit, the Legal Theory Bookworm recommends Republicanism: A Theory of Freedom and Government by Philip Pettit. The short-lived "republican revival" in American constitutional theory was what spurred by interest in this very rewarding book. Here's a blurb:
Download of the Week The Download of the Week is Rawls's Peoples (Rex Martin and David Reidy eds, ENVISIONING A NEW INTERNATIONAL ORDER: ESSAYS ON RAWL'S LAW OF PEOPLES, Blackwell, Oxford, 2005) by Philip Pettit. Here is the abstract:
Friday, June 24, 2005
Whittington on Pickerill Keith E. Whittington (Princeton University - Department of Politics) has posted James Madison has Left the Building: A Review of J. Mitchell Pickerill, Constitutional Deliberation in Congress (University of Chicago Law Review, Vol. 72, No. 3, Summer 2005) on SSRN. Here is the abstract:
Pettit on Rawls's Law of Peoples Philip N. Pettit (Princeton University - Department of Politics) has posted Rawls's Peoples (Rex Martin and David Reidy eds, ENVISIONING A NEW INTERNATIONAL ORDER: ESSAYS ON RAWL'S LAW OF PEOPLES, Blackwell, Oxford, 2005) on SSRN. Here is the abstract:
Thursday, June 23, 2005
Originalism in the Blogosphere Brian Leiter recently had the following to say about originalism:
In addition, supermajorities may believe that it is better to speak in abstract or general terms rather than address constitutional provisions to specific problems of their day, because of a desire to allow the language to be applied in new ways to meet the challenges of the future. This seems to be the case with respect to the history of the adoption of the Fourteenth Amendment, to take only one example.
In many contexts, original meaning, original intention, and original application converge. However, where the words used in a constitution are relatively abstract, these three ideas tend to come apart. An example are the words "cruel and unusual punishments." Under original public meaning originalism the original meanings of the concepts used (and their meaning in combination with each other) should be preserved, but we are not necessarily bound by either the intentions of the persons who framed the words, or by the general public expectation of how those words would be applied. The concept of cruelty stays the same, but what we have to figure out what that concept means in our own time.
Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application. It also conflates the nature of a concept with the particular set of issues before people at the time they considered constitutional language.
Wednesday, June 22, 2005
Willis on Predatory Lending Lauren E. Willis (Loyola-LA Law School) has posted Decisionmaking & the Limits of Disclosure: The Problem of Predatory Lending on SSRN. Here is the abstract:
de Figueiredo on Telecommunications Litigation John M.P. de Figueiredo (Princeton University - Program in Law and Public Affairs) has posted Strategic Plaintiffs and Ideological Judges in Telecommunications Litigation (Journal of Law, Economics and Organization, Forthcoming) on SSRN. Here is the abstract:
Nolan-Haley on Law and Mediation Jacqueline M. Nolan-Haley (Fordham University School of Law) has posted The Merger of Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound (Cardozo Journal of Dispute Resolution, Vol. 6, p. 57, 2004) on SSRN. Here is the abstract:
Tuesday, June 21, 2005
Sunstein on Chevron Cass R. Sunstein (University of Chicago Law School) has posted Chevron Step Zero (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
Two by Ribstein Larry Ribstein has posted two papers on SSRN:
Walker on the Problem of Collective Saving David I. Walker (Boston University School of Law) has posted The Social Insurance Crisis and the Problem of Collective Saving: A Commentary on Shaviro's 'Reckless Disregard' (Boston College Law Review, Vol. 45, pp. 1347-1361, 2004) on SSRN. Here is the abstract:
Guthrie & George on the Futility of Appeal Chris Guthrie and Tracey George (Vanderbilt University - School of Law and Vanderbilt University - School of Law) have posted The Futility of Appeal: Disciplinary Insights into the 'Affirmance Effect' on The United States Court of Appeals (Florida State University Law Review, Symposium Issue, Vol. 32, p. 357, 2005) on SSRN. Here is the abstract:
Parisi, Palmer and Bussani on Pure Economic Loss Francesco Parisi , Vernon V. Palmer and Mauro Bussani (George Mason University School of Law , Tulane Law School and University of Trieste School of Law) have posted The Comparative Law and Economics of Pure Economic Loss. Here is the abstract:
Monday, June 20, 2005
Stadler on Law School Teaching Sara K Stadler (Emory University - School of Law) has posted The Bulls and Bears of Law Teaching (Washington and Lee Law Review, 2006) on SSRN. Here is the abstract:
Family & Gender Law
Labor & Employment Law
First Amendment Law
Intellectual Property Law
International and Compartive Law
Law and . . .
Criminal Law & Procedure
Admiralty Law & Trusts and Estates
Two by Yoo Christopher Yoo (Vanderbilt) has posted two papers on SSRN:
Rubenstein on Private Attorneys General William B. Rubenstein (University of California, Los Angeles - School of Law) has posted On What a "Private Attorney General" is - And Why it Matters (Vanderbilt Law Review, Vol. 57, No. 6, p. 2129, November 2004) on SSRN. Here is the abstract:
Richman on Communities Creating Economic Advantage Barak D. Richman (Duke University School of Law) has posted How Communities Create Economic Advantage: Jewish Diamond Merchants in New York on SSRN. Here is the abstract:
Sunday, June 19, 2005
Legal Theory Lexicon: The Counter-Majoritarian Difficulty
This entry in the Legal Theory Lexicon explores the counter-majoritarian difficulty, efforts to solve the problem and to dissolve it. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. As is frequently the case with the Lexicon, we will explore a very big topic in just a few paragraphs. Many articles and books have been written about the counter-majoritarian difficulty; we will only scratch its surface. Moreover, any really deep discussion of the counter-majoritarian difficulty would lead (sooner or later) to almost every other topic in constitutional theory. The Lexicon is “quick and dirty,” and definitely not deep, comprehensive, or authoritative.
Democracy and Majoritarianism The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacy (see the Legal Theory Lexicon entry on Legitimacy ). We all know the basic story: the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.” Of course, it isn’t that simple. Among the complexities are the following:
Constitutional Limits on Majoritarianism The counter-majoritarian difficulty is sometimes characterized as a problem with the institution of judicial review, but it could also be understood as a difficulty for any constitution that constrains majority will. Of course, there could be constitutions that impose no limits at all on the will of democratically elected legislatures. For example, a regime of unicameral parliamentary supremacy might be said to have a constitution that allows a parliamentary majority to pass any legislation that it pleases and to override the courts or executive whenever the legislature is in disagreement with their actions. Of course, even this simple constitution might constrain the legislature in a certain sense. For example, legislation that attempts to constrain the action of a future legislature might be “unconstitutional.” Another example might be legislation that abolishes elections and substitutes a system of self-perpetuating appointments. Similarly, a legislature might pass a “bill of rights” that purports to bind future legislatures, even in the absence of an institution of judicial review.
The Institution of Judicial Review Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for a regime that incorporates the institution of judicial review incorporating judicial supremacy. In the United States, for example, the courts have the power to declare that acts of Congress are unconstitutional, and if the Supreme Court so declares, the Congress does not have the power to override its decision.
The institution of judicial review is counter-majoritarian in part because federal judges are not elected and they serve life terms. Presidents are elected every four years; members of the House of Representatives every two years; and Senators serve staggered six year terms. Of course, judges and justices are nominated by the President and confirmed by the Senate and these features create some degree of democratic control of the judiciary. Nonetheless, on the surface, it certainly looks like judicial review is an antidemocratic institution. Unelected judges strike down legislation enacted by elected legislators: that is certainly antidemocratic and antimajoritarian in some sense.
The counter-majoritarian difficulty is compounded by the nature of judicial review as it has been practiced by the modern Supreme Court. If the Supreme Court limited itself to enforcing the separation of powers between the President and Congress or to the enforcement of the relatively determinate provisions of the constitution that establish the “rules of the game” for the political branches, then the counter-majoritarian difficulty might not amount to much. But the modern Supreme Court has been involved in the enforcement of constitutional provisions that general, abstract, and seemingly value laden—examples include the freedom of speech, the equal protection clause, and the due process clause of the constitution. The counter-majoritarian difficulty seems particularly acute when it comes to so-called “implied fundamental rights,” like the right to privacy at issue in cases like Griswold v. Connecticut and Roe v. Wade.
Answering the Countermajoritarian Difficulty How have constitutional theorists attempted to answer the counter-majoritarian difficulty? The problem with answer that question is that there are so many answers that it is difficult to single out three or four for illustrative purposes. So remember, the “answers” that are discussed here are arbitrary selections from a much longer list.
Anti-Democratic Political Theory Another answer to the counter-majoritarian difficulty admits that judicial review is antidemocratic but seeks to justify this feature by appeal to some value that trumps democratic legitimacy. This isn’t really just one answer to the difficulty—it is a whole lot of answers that share a common feature—the appeal to anti-democratic political values. For example, it might be argued that “liberty” is a higher value than “democracy” and hence that judicial review to protect liberty is justified. Or it might be argued that “equality” is a higher value, or “privacy,” or something else. Obviously, there is a lot more to be said about this kind of answer to the counter-majoritarian difficulty, but for the purposes of this Lexicon entry, this incredibly terse explanation will have to suffice.
Dualism and High Politics Yet a third approach to the counter-majoritarian difficulty attempts to turn the problem upside down—arguing that judicial review is actually a democratic institution that checks the antidemocratic actions of elected officials. Whoa Nelly! How does that work? This third approach is strongly associated with the work of Bruce Ackerman—perhaps the most influential constitutional theorist since Alexander Bickel. Ackerman’s views deserve at least a whole Lexicon entry, but the gist of his theory can be stated briefly. Ackerman argues for a view that can be called “dualism,” because it distinguishes between two kinds of politics—“ordinary politics” (the kind practiced every day by legislators and bureaucrats) and “constitutional politics.” What is “constitutional politics”? And how is it different from “ordinary politics”? Ackerman’s answers to these questions begin with the idea that ordinary politics isn’t very democratic. Why not? We all know the answer to that question. Ordinary politics are dominated by self-interested politicians and manipulative special interest groups. The people (or “We the People” as Ackerman likes to say) don’t really get involved in ordinary politics, and therefore, ordinary politics are not really very democratic. Constitutional politics, by way of contrast, involve extraordinary issues that actually “get the attention” of the people. For example, the ratification of the Constitution of 1789 caught the attention of ordinary citizens, as did the Reconstruction Amendments (the 13th, 14th, and 15th) following the Civil War. When “We the People” become engaged in constitutional politics, we are giving commands to our agents—Congress and the President—and the Courts are merely enforcing our will when they engaged in judicial review—so long as they are faithful to our commands.
Whew! That was a lot of “We the People” talk. I need a break from channeling Ackerman, before I can finish this entry! OK. I’m back!
Ackerman’s theory emphasized the idea of distinct regimes that resulted from “constitutional moments”—periods of intense popular involvement in constitutional politics. Recently, Jack Balkin and Sandy Levinson have advanced a similar theory—which emphasizes that idea of “high politics”—the great popular movements that seek to influence the decisions of the Supreme Court on issues like abortion or affirmative action. I can’t do justice to their theory here, but the idea is that the Supreme Court may be responding to democratic pressures when it makes the really big constitutional decisions.
There is another side to this story. There may be reasons why elected politicians prefer for the Supreme Court to “take the heat” for some decisions that are controversial. When the Supreme Court acts, politicians may be able to say, “It wasn’t me. It was that darn Supreme Court.” And in fact, the Supreme Court’s involvement in some hot button issues may actually help political parties to mobilize their base: “Give us money, so that we can [confirm/defeat] the President’s nominee to the Supreme Court, who may cast the crucial vote on [abortion, affirmative action, school prayer, etc.].” In other words, what appears to be counter-majoritarian may actually have been welcomed by the political branches that, on the surface, appear to have been thwarted.
Conclusion Once again, I’ve gone on for too long. I hope you will forgive me, and I hope that this Lexicon entry has given you food for thought about the counter-majoritarian difficulty. Below, I’ve included a list of references to articles that focus on the difficulty itself and also to some of the authors who have attempted to give answers to Bickel’s famous problem.
References This is a very incomplete list, emphasizing the works that are focused on “the counter-majoritarian difficulty” in particular and omitting many important works of constitutional theory that deal with the counter-majoritarian difficulty as part of a larger enterprise.
Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045 (2001).
Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-18 (2d ed. 1986).
Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 Geo. Wash. L. Rev. 1373 (1998); Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. Rev. 933 (2001).
Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 334 (1998).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part II: Reconstruction's Political Court , 91 Geo. L.J. 1 (2002).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Three: The Lesson Of Lochner, 76 N.Y.U. L. Rev. 1383 (2001).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. Pa. L. Rev. 971 (2000).
Barry Friedman, The Birth Of An Academic Obsession: The History Of The Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002).
Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004).
Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995).