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.

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Friday, May 30, 2003
New Papers on the Net Here is the roundup:
    Roderick Hills (Michigan) uploads Against Preemption: How Federalism Can Improve the National Legislative Process. From the abstract:
      How easily should courts infer that federal statutes preempt state law? An ongoing debate exists on the question in Congress and among scholars and judges. One side calls for judges to protect federalism by adopting a rule of statutory construction that would bar preemption absent a clear statement of preemptive intent. Opponents argue against such a "clear statement" rule by arguing that state control over preemptable topics is often presumptively inefficient, because common-law juries lack expertise and because states are prone to imposing external costs on their neighbors.
      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.
    A. Mitchell Polinsky (Stanford) and Daniel Rubinfeld (UC Berkeley) post two papers:
      A Note on Settlements under the Contingent Fee Method of Compensating Lawyers. From the abstract:
        It is commonly thought that a lawyer working under a contingent fee arrangement has an excessive motive - relative to his client's interest - to settle the case, leading to a lower-than-desirable settlement amount and a high settlement rate. The conventional analysis that generates this conclusion omits an important consideration - that if the case were to go to trial, the lawyer would spend an inadequate amount of time on it. We demonstrate that once this effect is taken into account, the lawyer could have an insufficient motive to settle, the opposite of what is usually believed. Specifically, the lawyer's settlement demand could be too high and the resulting settlement rate too low.
      Aligning the Interests of Lawyers and Clients. From the abstract:
        The potential conflict of interest between lawyers and clients is well known. If a lawyer is paid for his time regardless of the outcome of the case, the lawyer may wish to bring the case even when it is not in the best interest of the client, may spend more hours working on the case than the client would want, and may reject a settlement when the client would be better off if it were accepted. Alternatively, if the lawyer is compensated according to the conventional contingent fee arrangement - under which he is paid a fraction of any trial award or settlement but bears all of the cost of litigation - the lawyer may have an insufficient incentive to bring the case, may spend too little time working on it if it is brought, and may encourage a settlement when the client would be better off going to trial. In this article we propose a method of compensating lawyers that overcomes the conflict of interest between the lawyer and the client. Our system is a variation of the conventional contingent fee system, but, in contrast to that system, we would have the lawyer bear only a fraction of the cost of litigation - the same fraction that the lawyer obtains of the award or settlement. We demonstrate that when the fraction of the cost that the lawyer bears equals the fraction of the award or settlement that he obtains, he will have an incentive to do exactly what a knowledgeable client would want him to do with respect to accepting the case, spending time on the case, and settling the case. Under our modified contingent fee system, a third party would compensate the lawyer for a certain fraction of his costs, in return for which the lawyer would pay that party an up-front fee. In this way, the client would not bear any costs, even if the case is lost, just as under the conventional contingent fee system.
    Anthony Sebok offers The Fall and Rise of Blame in American Tort Law, forthcoming in the Brooklyn Law Review. From the abstract:
      It is well known that Legal Realists were skeptical of "transcendental nonsense" in all its forms. In torts, this meant a realist-led revolution against defining terms such as "proximate causation," "duty" and "fault" in terms of conceptualist language. The attack on fault was led by Fleming James and Albert Ehrenzweig, who viewed the term as a dangerous mystification of important policy questions. James, in particular, felt that an immature attachment to a moralized concept of fault impeded the adoption of strict liability, since it provided defenders of the status quo with a moral argument against cost-spreading. In the post-war era, many tort doctrines changed in response to the realists' effort to promote cost-spreading through tort liability. In this essay I argue that although the doctrinal recommendations of realists such as James were adopted by progressive torts scholars and lawyers, his philosophical rejection of fault was not. Today, modern progressive tort law is filled with the language of blame. The resistance to no-fault auto insurance on the part of consumer groups is often explained by a need to hold faulty parties accountable. Similarly, the critique of the “tort reform” movement is often couched in terms of the need to hold wrongdoers—such as doctors who commit malpractice—accountable for their blameworthy conduct. This essay explores the irony that the world that the realists helped create seems to have rejected utterly their rejection of blame. This essay is part of the symposium "Responsibility & Blame: Psychological and Legal Perspectives," published in Volume 68 of the Brooklyn Law Review.

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:
    F. Gregory Lastowka (Dechert LLP) and Dan Hunter (University of Pennsylvania, Legal Studies) upload The Laws of the Virtual Worlds, forthcoming in the California Law Review. Here is the abstract of this very interesting paper
      What if you could check out of your world, and enter a place where the social environment was different, where real world laws didn't apply, and where the political system could be anything you wanted it to be? What if you could socialize there with family and friends, build your own palace, go skiing, and even hold down a job there? And what if there wasn't one alternate world, there were hundreds, and what if millions of people checked out of Earth and went there every day? Virtual worlds - online worlds where millions of people come to interact, play, and socialize - are a new type of social order. In this Article, we examine the implications of virtual worlds for our understanding of law, and demonstrate how law affects the interests of those within the world. After providing an extensive primer on virtual worlds, including their history and function, we examine two fundamental issues in detail. First, we focus on property, and ask whether it is possible to say that virtual world users have real world property interests in virtual objects. Adopting economic accounts that demonstrate the real world value of these objects and the exchange mechanisms for trading these objects, we show that, descriptively, these types of objects are indistinguishable from real world property interests. Further, the normative justifications for property interests in the real world apply - sometimes more strongly - in the virtual worlds. Second, we discuss whether avatars have enforceable legal and moral rights. Avatars, the user-controlled entities that interact with virtual worlds, are a persistent extension of their human users, and users identify with them so closely that the human-avatar being can be thought of as a cyborg. We examine the issue of cyborg rights within virtual worlds and whether they may have real world significance. The issues of virtual property and avatar rights constitute legal challenges for our online future. Though virtual worlds may be games now, they are rapidly becoming as significant as real-world places where people interact, shop, sell, and work. As society and law begin to develop within virtual worlds, we need to have a better understanding of the interaction of the laws of the virtual worlds with the law of this world.
    Devon Carbado (UCLA) and Gaurang Gulati (Georgetown) offer The Law and Economics of Critical Race Theory, forthcoming in the Yale Law Journal. Here is the abstract:
      Legal academics often perceive law and economics (L&E) and critical race theory (CRT) as oppositional discourses. Using a recently published collection of essays on CRT as a starting point, we argue that the understanding of workplace discrimination can be furthered through a collaboration between L&E and CRT. L&E's strength is in its attention to incentives and norms, specifically its concern with explicating how norms incentivize behavior. Its limitation is that it treats race as exogenous and static. Thus, the literature fails to consider how institutional norms affect, and are affected by, race. To put the point another way, L&E does not discuss how norms incentivize racial behavior, obscuring that how people present their race (or themselves as racial subjects) is a function of norms. The strength of CRT is its conception of race as a social construction. Under this view, race is neither biologically determined nor fixed. Instead, race is ever evolving as a function of social, political, legal, and economic pressures. A limitation of CRT is that much of its analysis of race as a social construction is macro-oriented. Thus, CRT has paid insufficient attention to the social construction of race within specific institutional settings, like the workplace. Further, CRT has virtually ignored the agency people of color exercise to shape how their racial identity is interpreted - that is say, constructed. Explicitly incorporating L&E's focus on incentives and norms into CRT provides CRT with a means by which to articulate the notion of race as a social construction at the level of individual "choice." The basic idea is that people of color construct (present racial impressions of) themselves in response to norms. Norms, in this sense, are racially productive, and individuals are part of the production apparatus. Having set out the basic elements of the collaborative enterprise, we deploy this collaboration to respond to a specific and important question about the workplace: How are modern employers and employees likely to "manage" workplace racial diversity? We raise this question because we assume that, for institutional legitimacy reasons, most workplaces will strive to achieve at least a modicum of racial diversity. The question, again, is: How will this diversity be managed? Part of the answer has to do with assimilation, an ideological technology for constructing race and a central theme in CRT; and part of the answer has to do with efficiency, an ideological technology for creating incentives and a central theme in L&E. Both ideas - assimilation and efficiency - combine to tell a story about workplace discrimination that derives from what we call "the homogeneity incentive." In sum, in order to increase efficiency, employers have incentives to screen prospective employees for homogeneity, and, in order to counter racial stereotypes, nonwhite employees have incentives to demonstrate a willingness and capacity to assimilate. In this sense, the modern workplace discrimination problem may be more about employers requiring people of color to demonstrate racial palatability than about employers totally excluding people of color for the workplace. We discuss whether and to what extent anti-discrimination law can ameliorate this problem.

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:
    The standard trope in the literature on retributive theory is that mercy serves as an unwelcome interruption of the narrative between crime and punishment. Underlying this theme is the purportedly retributivist notion that the criminal law and its institutions should impose some form of divine or poetic justice for wrongdoing of all different kinds. On this view, the exercise of mercy works a simple failure of justice. But once retribution is better understood - not as revenge or retaliation but as a complex institutional practice arising from and enforcing liberal legal norms of democratic pedigree - its relationship to mercy requires reexamination. That reexamination reveals previously unanticipated problems about the difficulties associated with democratically authorized sites for mercy. The unsettling dimensions of this tension have not been sufficiently appreciated by previous retributivist critiques. Importantly, the retributivist case against mercy still endures - not because mercy is a failure of justice (qua just deserts), but because it is a failure of equality. This realization suggests robust and surprising implications for the responsible design of attractive criminal justice institutions.
Markel's paper is smart and has interesting implications. Get it while its hot.

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:
    --Legal practices of punishment might play a role in norm creation. And this might have implications for theories of punishment. Most obviously, it might turn out to be the case that norm creation and not deterrence is the primary mechanism by which punishment influences behavior.
    --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.
Fascinating session!

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:
    Written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them.

Wednesday, May 28, 2003
New Papers on the Net Here is the roundup:

Confirmation Wars: Transformational Moves
    Proposals for a Truce The eminent political philosopher Sharon Lloyd recently suggested to me that the downward spiral of politicization that has characterized the judicial selection process can only be ended by a transformational move--a play in the game that would reestablish trust. Lloyd suggested that a new President might offer to the opposing party the right to submit a list of names from which the first several lower-court vacancies would be filled, asking in exchange that the remainder of the President's own nominees be confirmed. Stuart Taylor, Jr., offers another suggestion in a column for the National Journal entitled Judicial Selection Wars: How A Truce Could Be Fashioned. Here is Taylor's suggestion:
      The president should invite Senate Democrats to pull back from the brink. The best way to do that might be an informal compromise along these lines: Bush would promise to consult seriously with Democratic senators before making any judicial nomination, as the Constitution's "advice and consent" clause contemplates. In addition, in light of the Senate's slim Republican majority, he would pledge not to try to swing the Court's ideological balance by naming a strong conservative to replace any of the four liberal or two centrist justices who may retire during this Congress. These Bush pledges would be conditioned on a commitment by Democratic leaders to end their current filibusters and not to filibuster any other judicial nominees on ideological grounds as long as Bush keeps his part of the bargain. Bush could make the deal more palatable by giving a bit of ground to the Democrats who seek access to Miguel Estrada's internal memos from when he worked in the solicitor general's office. The logic of such a compromise would be a mutual recognition that filibustering a Supreme Court nominee would be a far more defensible tactic than filibustering a lower-court nominee. The reason is that -- especially when the justices are as closely divided as now -- one or two Supreme Court appointments could engineer dramatic changes in the law on big national issues including abortion, affirmative action, religion, campaign finance, and civil liberties. Arguably, the president should not be able to engineer such a change with a mere 51 votes in the Senate. The 800-odd judges on the lower federal courts, on the other hand, have far less latitude and are far more constrained by Supreme Court precedents.
    Lloyd and Taylor are looking for the move that will reverse the downward spiral of poltiicization. And one of their premises seems intuitively correct--the confirmation wars will not end without some transformative move that enables both Democrats and Republicans to back off from their current positions.
    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:
    The GOP is in control this year, but the party lacks the 60 votes needed in the Senate to stop a Democratic filibuster of Pickering's nomination. Democratic filibusters have stalled nominations of two other conservative candidates for federal judgeships, Miguel Estrada and Patricia Owen. A rules change would require a two-thirds vote in the Senate, an unlikely occurrence. GOP leaders also are considering trying to change the filibuster rule from the chair of the Senate, which would require only a simple majority vote to approve if Democrats challenged the ruling. That tactic is known as the "nuclear option." Democrats have warned of "fallout" if Republicans resort to that maneuver. "I'm for the nuclear option, absolutely," Lott has said. "The filibuster of federal district and circuit judges cannot stand. ... It's bad for the institution. It's wrong. It's not supportable under the Constitution. And if they insist on persisting with these filibusters, I'm perfectly prepared to blow the place up. No problem."

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.

Workshops Today Here is the roundup:
    At Florida State's summer series, Adam Hirsch does an internal workshop on Stale Wills.
    At Oxford, Caroline Shackleford presents Mediation of the horizontal application of the South African bill of rights - an instance of power-sharing.

New Alexy from Oxford Robert Alexy's The Argument from Injustice: A Reply to Legal Positivism has been published by Oxford. From the abstract:
    At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law.

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:
    The war in Iraq requires a rethinking of the rules of conduct in war, international humanitarian law. The nature of assymetric warfare in the conflict has turned out to be less a question of technological disparities than the weaker side turning to systematic violations of the laws of war as its method. Over time, we risk creating an international system in which it is tacitly assumed and permitted that the weaker side fight using systematic violations of the law as its method. Part of this trend arises from the biases of 1977 Protocol I which blessed activities of irregular forces operating without uniforms and commingled with civilians. While the United States rejected this protocol partly because it objected to reductions in the level of civilian protection in the protocol, it was endorsed by most leading human rights organizations, seemingly out of a preference for internationalism rather than caring about the fundamental substantial issue of civilian protection. The trend of the last twenty years which has shifted "ownership" of the laws of war - the ability for shape and interpret them - from leading militaries to international NGOs has gone too far, and "ownership" of the laws of war and their meaning needs to shift partly back to the "state practices" of leading democratic sovereign states that actually fight wars.

New Papers on the Net Here is the roundup:
    Gabriel Chin (Cincinnati) posts Are Collateral Sanctions Premised on Conduct or Conviction? The Case of Abortion Doctors, forthcoming in the Fordham Urban Law Journal.
    Bruno Frey and Alois Stutzer (Zurich, Institute for Empirical Research in Economics) upload Testing Theories of Happiness. From the abstract:
      Happiness research in economics takes reported subjective well-being as a proxy measure for utility and has already provided many interesting insights about human well-being and its determinants. We argue that future research on happiness in economics has a lot of potential, but that it needs to be guided more by theory. We propose two ways to test theories of happiness, and illustrate them with two applications. First, reported subjective well-being can contribute towards a new understanding of utility in economics. Here, we study the introduction of income aspirations in individuals' utility functions in order to improve our understanding of how income affects individual well-being. Second, happiness data offers a new possibility of discriminating between different models of behavior. This is studied for theories of marriage, which crucially depend on auxiliary assumptions as to what contributes to well-being in marriage. Both applications are empirically tested with panel data for Germany.
    Bronwyn Hall (UC Berkeley), Stuart Graham (UC Berkeley, Business), Dietmar Harhoff (Munich) and David Mowery (UC Berkeley, Business) offer Prospects for Improving U.S. Patent Quality via Post-grant Opposition.
    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:
      In 1997, the American Law Institute promulgated the Restatement (Third) of Torts: Products Liability, an ambitious and important project that decisively rejected the consumer expectations doctrine in favor of a risk-utility test for product design defect claims. In the few years following promulgation of the Third Restatement, however, several courts have issued opinions expressing strong judicial allegiance to the consumer expectations doctrine. . . . [T]his article explores several possible substantive foundations that might be laid for the consumer expectations test. Initially, it locates several points along the tradeoff spectrum between descriptive attractiveness and theoretical tractability, none of which provide a wholly satisfactory response to the challenge of giving content to the consumer expectations doctrine. More promising findings, however, emerge from cognitive and social psychology, behavioral economics, and other social science investigations of human behavior and decisionmaking. In particular, researchers from those fields have uncovered a wealth of knowledge in recent years concerning the manner in which individuals perceive and process information regarding health and safety dangers. As it turns out, lay individuals frequently comprehend such risks in ways that depart systematically from the approaches that characterize expert decisionmaking. Although such departures sometimes result from undesirable factual or cognitive errors on the part of individuals, a substantial remaining core of lay risk perception cannot easily be dismissed as irrational or otherwise lacking foundation. This article therefore argues that the consumer expectations test should be redirected toward these important cognitive and behavioral phenomena that are not as readily subsumed within the more analytically-rigid risk-utility test. In this manner, the doctrine that refuses to die may yet find a purpose, nearly forty years after its accidental birth.

Catching Up Department Princeton University Press recently published Law's Dream of a Common Knowledge by Mariana Valverde. From the abstract:
    If knowledge is power, then the power of law can be studied through the lens of knowledge. This book opens up a substantive new area of legal research--knowledge production--and presents a series of case studies showing that the hybridity and eclecticism of legal knowledge processes make it unfruitful to ask questions such as, "Is law becoming more dominated by science?" Mariana Valverde argues that legal decision making cannot be understood if one counterposes science and technology, on the one hand, to common knowledge and common sense on the other. The case studies of law's flexible collage of knowledges range from determinations of drunkenness made by liquor licensing inspectors and by police, through police testimony in "indecency" cases, to how judges define the "truth" of sexuality and the harm that obscenity poses to communities. Valverde emphasizes that the types of knowledge that circulate in such legal arenas consist of "facts," values, and codes from numerous incompatible sources that combine to produce interesting hybrids with wide-ranging legal and social effects. Drawing on Foucaultian and other analytical tools, she cogently demonstrates that different modes of knowledge, and hence various forms of power, coexist happily. Law's Dream of a Common Knowledge underlines the importance of analyzing dynamically how knowledge formation works. And it helps us to better understand the workings of power and resistance in a variety of contemporary contexts. It will interest scholars and students from disciplines including law, sociology, anthropology, history, and science-and-technology studies as well as those concerned with the particular issues raised by the case studies.

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.

Filibuster Realpolitik
    Introduction Sarah A. Binder (GWU & Brookings) and Steven S. Smith (Washington University) have a thoughtful op/ed entitled Filibusters a great American tradition. They begin with a statement that seems exactly right to me:
      Today's stalemate over the confirmation process follows at least two decades of conflict over the president's choices for the lower federal bench, conflict that has been stoked in part by the growing polarization of the parties in Congress. The battles have escalated with the Democratic filibusters, but Democrats are not the first to obstruct judicial nominees. Controlling the Senate Judiciary Committee for much of the Clinton administration, Republicans blocked scores of judicial nominees by refusing to bring them up for a vote in the committee. And both parties have used anonymous "holds" and Judiciary Committee "blue slips" to prevent nominees from going forward in the past.
    This seems exactly right. The downward spiral of politicization that has resulted in the current confirmation wars has resulted from the actions of both parties--from Fortas through Haynsworth and Carswell, Bork, Thomas, Republican obstruction of Clinton nominees, right through today.
    The Senate's Constitutional Duty But they go on to state:
      Filibusters against nominees are constitutional. Some Republican senators have claimed that filibusters of nominees are unconstitutional because they prevent the Senate from fulfilling its obligations to advise and consent. In fact, and quite remarkably, the Constitution does not specify that a majority of any sort is required for confirmation, or even for passing laws. The Framers most likely had such a requirement in mind, but the Constitution does not address it. No reading of the Constitution can support the idea that filibusters are unconstitutional.
    This is a bit misleading. The Constitution imposes a duty on the Senate to give advice and consent to the President. Given that the duty exists, it follows that if the Senate were simply to ignore Presidential requests for advice and consent, then the Senate would not be fulfilling its constitutional obligation. Similarly, the Senate's obligation would not be fulfilled by a systemic decision to delay action on nominations until after the President leaves office. Given that there is a duty to give advice and consent, it follow inexorably that the Senate must fulfill the duty within a reasonable time. Indeed, President Washington believed that the President could demand advice and consent at any time, summoning the Senate to his home and acting as the chair of the Senate when it was in executive session as his privy council. Binder and Smith don't actually deny any of these well-known arguments. Instead, they focus on a different point--the question whether the Senate might specify a supermajority rule for advice and consent. And perhaps it could. But there is no such rule. The rules that enable the filibuster are not supermajority confirmation rules. They are rules that permit indefinite delay if the filibuster is supported by 41 members of the Senate. The constitutional issue is whether indefinite delay can be squared with the Senate's duty to provide advice and consents--and of course, it can't. Binder and Smith's argument is based on a fallacy of ambiguity. Once the fallacy is exposed, the argument simply collapses.
    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:
      Will we see such reforms in the Senate in the near future? Probably not. One rule about Senate rules is that they are difficult to change. Ending a filibuster on a resolution to change the rules requires a two-thirds majority. Consequently, no change in the rules is likely unless most senators believe the change will serve their interests. Absent pressure from the public and the president, minority party senators are unlikely to feel the heat necessary to support reform. The danger is that Republicans might resort to a back-door procedural scheme -- a bit of trickery known as "going nuclear" -- to prevent Democrats from filibustering nominees. This would only increase partisan rancor and will encourage Democrats to block all action in the Senate. As Democrats learned from years of experience when Republicans obstructed the Democrats' agenda, the public typically holds the majority party responsible when obstructionism occurs. Only if Republicans can generate Democratic support for changing rules should reform of the process proceed. This is but par for the course in the history of the filibuster. All senators understand the value of the filibuster to their party's and their own political and policy agendas. If Democratic leaders are able to judge public sentiment and the intentions of fellow senators, then they will know how far they can obstruct the confirmation process without fear that they will motivate more of their colleagues to support a change the rules. The Democrats, it seems to us, have gauged the situation just about right.
    Very interesting. But I am not so sure they have the politics right.
    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:
    One of the most important features of the architecture of the Internet is the Domain Name System (DNS), which is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). Logically, the DNS is organized into Top Level Domains (such as .com), Second Level Domains (such as, and third, fourth, and higher level domains (such as The physical infrastructure of the DNS consists of name servers, including the Root Server System, which provides the information that directs name queries for each Top Level Domain to the appropriate server. ICANN is responsible for the allocation of the root and the creation or reallocation of Top Level Domains. The Root Server System and associated name space are scarce resources in the economic sense. The root servers have a finite capacity and expansion of the system is costly. The name space is scarce, because each string (or set of characters) can only be allocated to one Registry (or operator of a Top Level Domain). In addition, name service is not a public good in the economic sense, because it is possible to exclude strings from the DNS and because the allocation of a string to one firm results in the inability of other firms to use that name string. From the economic perspective, therefore, the question arises: what is the most efficient method for allocating the root resource? There are only five basic options available for allocation of the root. (1) a static root, equivalent to a decision to waste the currently unallocated capacity; (2) public interest hearings (or "beauty contests"); (3) lotteries; (4) a queuing mechanism; or (5) an auction. The fundamental economic question about the Domain Name System is which of these provides the most efficient mechanism for allocating the root resource? This resource allocation problem is analogous to problems raised in the telecommunications sector, where the Federal Communications Commission has a long history of attempting to allocate broadcast spectrum and the telephone number space. This experience reveals that a case-by-case allocation on the basis of ad hoc judgments about the public interest is doomed to failure, and that auctions (as opposed to lotteries or queues) provide the best mechanism for insuring that such public-trust resources find their highest and best use. Based on the telecommunications experience, the best method for ICANN to allocate new Top Level Domains would be to conduct an auction. Many auction designs are possible. One proposal is to auction a fixed number of new Top Level Domain slots each year. This proposal would both expand the root resource at a reasonable pace and insure that the slots went to their highest and best use. Public interest Top Level Domains could be allocated by another mechanism such as a lottery and their costs to ICANN could be subsidized by the proceeds of the auction.

New Papers on the Net Here is the roundup:
    William Wang (Hastings) posts Selective Disclosure by Issuers, Its Legality and Ex Ante Harm, forthcoming in Company Lawyer. From the abstract:
      Some commentators argue that, ex ante, induced or preempted traders are not injured because share prices will discount both the risk of becoming a victim of an insider trade and any loss of liquidity caused by a widening of bid-ask spreads by market- makers and specialists. Presumably, this discount will harm issuers by lowering the price at which they issue shares. Nevertheless, ex ante, insider trading may still harm preempted and/or induced traders if the market is unable to determine an appropriate discount for the risk of becoming a victim.
    Peter Joy (Washington University) and Robert Kuehn (Tulane) upload An Ethics Critique of Interference in Law School Clinics, forthcoming in the Fordham Law Review. The abstract:
      Law school clinics play an important role in training future lawyers and in providing legal assistance to traditionally under-represented individuals and groups. In addition to facing the legal issues present in any law practice, law clinic students and faculty are often confronted with ethical issues that lawyers representing poor and unpopular clients sometimes face - outside interference in case and client selection. This article explores the ethical considerations raised by interference in law school clinic case and client selection and limitations on the means of representation lawyers may employ in representing their clients. The article's analysis provides a useful framework for responding to interference with not just law school clinics, but also with legal services lawyers, public defenders, and private practitioners representing poor and unpopular clients and causes.
    Darryl Brown (Washington and Lee University) posts Cost-Benefit Analysis in Criminal Law, forthcoming in the California Law Review. From the abstract:
      This paper explores the prospects for integrating criminal law into the widespread trend elsewhere in the executive branch of using cost-benefit analysis to improve policymaking and enforcement practice. The paper describes the substantial array of unnoticed and under-valued costs created by the America's unique and fairly recent commitment to severe incarceration policies. It then maps the challenges for employing CBA in criminal enforcement practice. Those challenges include CBA's own methodological and conceptual limitations, public choice problems created by the populist structure of criminal justice administration, constraints on CBA in criminal justice in light theoretical commitments to retributivism, and practical limits employing such a policy in the executive branch when legislatures are unwilling to reduce statutory punishment mandates. Despite these obstacles, the paper concludes that a properly devised, CBA-based decision procedure - one that takes account of distributive concerns - is a promising avenue for rationalization and reform of state and federal criminal justice.
    Shubha Ghosh (SUNY, Buffalo) and Jay Kesan (Illinois) upload What Do Patents Purchase? In Search of Optimal Ignorance in the Patent Office. The abstract:
      In a stimulating and thought-provoking article, "Rational Ignorance at the Patent Office," 95 NW. L. REV. 1495 (2001), Professor Mark A. Lemley urges that he does not necessarily think that there is a problem with how the U.S. Patent and Trademark Office (PTO) handles patent applications. The agency does the best it can. To use his phrase, the PTO is rationally ignorant. . . . We urge that Professor Lemley seems to ignore the broader goals of the PTO in determining when the agency is being rationally ignorant. As we argue, the real issue is not of rational ignorance, but optimal ignorance. In other words, what is the optimal amount of ignorance from the perspective of society, assessing both the costs and benefits of the patent system on all actors, as opposed to just the PTO, to collecting and assessing information about prior art and novelty and non-obviousness. Drawing from another example, as with optimal deterrence in criminal law, optimal ignorance focuses on the incentive effects throughout society, not just on specific agents, whether patent examiners or criminals.
    Paul Robinson (Pennsylvania) posts The Bomb Thief and the Theory of Justification Defenses forthcoming Iyunei Mishpat and Criminal Law Forum: An International Journal. Abstract:
      Earlier this year, an addict named Ashkenazi spotted an unattended backpack on a busy beach north of Tel Aviv, Israel. He seized the opportunity and stole the bag, taking it to a nearby abandoned house to examine his loot. What he found in the bag was a terrorist's bomb. He notified police who disarmed the bomb. Ashkenazi's conduct saved many lives, but he did not realize it at the time. Should he be criminally liable for his theft? This article explores the theoretical dispute raised by the case: competing views on the theory of justification. A subjective, or "reasons," theory looks to the actor's intent and would deny a justification defense in this case, leaving Ashkenazi liable for the theft. An objective, or "deeds," theory looks to whether the actor's conduct in fact avoids a greater harm. It would give a lesser evils defense for such a theft, although the unknowingly justified actor would remain liable for attempted theft (if the jurisdiction punishes impossible attempts). Israeli law takes the objective "deeds" view; most (but not all) U.S. states take the subjective "reasons" view.
    Paul Robinson (Pennsylvania) and John Darley (Princeton) upload The Utility of Desert, forthcoming in the Northwestern University Law Review. From the abstract:
      The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real power to gain compliance with society's rules of prescribed conduct lies not in the threat or reality of official criminal sanction, but in the power of the intertwined forces of social and individual moral control. The networks of interpersonal relationships in which people find themselves, the social norms and prohibitions shared among those relationships and transmitted through those social networks, and the internalized representations of those norms and moral precepts are what cause people to obey the law. The law is not irrelevant to these social and personal forces. Criminal law, in particular, plays a central role in creating and maintaining the social consensus necessary for sustaining moral norms. In fact, in a society as diverse as ours, the criminal law may be the only society-wide mechanism that transcends cultural and ethnic differences. Thus, the criminal law's most important real world effect may be its ability to assist in the building, shaping, and maintaining of these norms and moral principles. It can contribute to and harness the compliance-producing power of interpersonal relationships and personal morality. The criminal law can have a second effect in gaining compliance with its commands. If it earns a reputation as a reliable statement of what the community, given sufficient information and time to reflect, would perceive as condemnable, people are more likely to defer to its commands as morally authoritative and as appropriate to follow in those borderline cases where the propriety of certain conduct is unsettled or ambiguous in the mind of the actor. The extent of the criminal law's effectiveness in both these respects--in facilitating and communicating societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority--is to a great extent dependent on the degree of moral credibility that the criminal law has achieved in the minds of the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as "doing justice," that is, if it assigns liability and punishment in ways that the community perceives as consistent with the community's principles of appropriate liability and punishment. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert.
    Paul Robinson (Pennsylvania) uploads two papers:
      Structuring Criminal Codes to Perform Their Function, forthcoming in the Buffalo Criminal Law Review. From the abstract:
        This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of abilities and from a wide variety of backgrounds. Effectiveness in announcing the rules of conduct requires simple, clear, and preferably objective rules. In contrast, the goal of the principles of adjudication - to assess ex post the degree of liability and punishment, if any, due for a violation of the rules of conduct - often requires nuanced, subjective, and sometimes complex judgements, at least as nuanced, subjective, and complex as our notions of justice. The paper makes the case for two distinct code documents, each drafted to best perform its function, and explores how this can be done.
      Testing Lay Intuitions of Justice: How and Why?, forthcoming in the Hofstra Law Review. From the abstract:
        When John Darley and I wrote Justice, Liability, and Blame: Community Views and the Criminal Law, our goal was not to provide the definitive account of lay intuitions of justice but rather to stimulate interest in what we saw as an important but long-term project that would require the work of many people. Having this American Association of Law Schools program is itself something toward that end and for that we thank Christopher Slobogin and Cheryl Hanna. In this brief introduction to the Symposium, let me set the stage by doing four things. Part I of this Article summarizes the arguments we have made elsewhere as to why we think lay intuitions of justice are important for criminal law rule-makers. Part II sketches how we have gone about testing lay intuitions of justice. Part III looks briefly at one simple study to illustrate our methodology, which we have used on a variety of issues, as described in Part IV.
    David Schoenbrod (New York Law School) posts Politics and the Principle that Elected Legislators Should Make the Law, forthcoming Havard Journal of Law and Public Policy. From the abstract:
      The Supreme Court's decision in Whitman v. American Trucking Association has been widely understood to repudiate decisively the principle that elected legislators should make the law or to refuse to enforce this principle on the basis that the Court lacks a judicially manageable standard. This article argues that at least some Justices believe that the Constitution does embrace that principle and further believe that it is judicially manageable, but shy away from enforcing it because it is politically impossible for it to stop Congress from delegating politically controversial choices to administrative agencies. The Court has, however, found it possible to prevent the practice of delegation from spreading to include delegations to governmental institutions other than agencies and has done so. Seeing the delegation case law as driven by political constraints provides a way to understand seeming disparate areas of case law and also shows that the Court does have a useful, although not all-powerful role in enforcing the constitutional principle that elected legislators should make the law. Moreover, the Court has begun, however subtly, to play that role in ways that could eventually have repercussions for delegations to agencies.
    Ben Depoorter (Yale) and Francesco Parisi (George Mason) post Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes, forthcoming in Global Jurist Frontiers. Abstract:
      This Article argues that recent developments in economic theory provide a new rationale for the dichotomous approach of land use arrangements in the law of servitudes that is almost universal in the modern Western legal tradition. The treatment of certain land-related promises as enforceable contracts between parties, rather than real rights that run with the land in perpetuity, can be explained as an attempt to minimize the transaction and strategic costs resulting from dysfunctional property arrangements. As demonstrated by the Authors, benchmark doctrines such as "touch and concern," and the civil law principles of "prediality" and numerus clausus, have served as instruments to limit excessive or dysfunctional fragmentation of property rights.

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:Thank you all for the condolences and kind words.

Thursday, May 22, 2003
RSS Code added as well as a link on the sidebar near the top. Happy aggregating.

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:
    “Do you believe that Roe was correctly decided?” the Senator [Feinstein] followed up.
      “My view of the judicial function, Senator Feinstein, does not allow me to answer that question,” Estrada said. “I have a personal view on the subject of abortion, as I think you know. But I have not done what I think the judicial function would require me to do in order to ascertain whether the court got it right as an original matter. I haven’t listened to parties. . . . I have had no particular reason to go back and look at whether it was right or wrong as a matter of law, as I would if I were a judge that was hearing the case for the first time. It is there.”
    Other Bush nominees had given similarly vague answers about Roe, but, when the Estrada nomination headed to the Senate floor, in early 2003, the Democrats decided not to let him get away with it.
But didn't Estrada give exactly the right answer? Roe v. Wade is surely one of the most controversial decisions in the history of our constitutional jurisprudence, and part of the reason is that Justice Blackmun's original opinion was so badly written. Most defenders of Roe do so on grounds other than those actually articulated in the decision. Some believe that Roe can be defended on the basis of the equal protection clause. Others believe that a case can be made for Roe on the basis of the privileges and immunities clause of the 14th amendment. Still others believe that Roe may have been wrongly decided in 1971, but that the doctrine of stare decisis requires continued adherence to Roe. And of course, many critics believe that Roe was wrongly decided and should be reversed. I've thought about this question for quite a long time, and I've never had a firm opinion about the correctness of Roe as an original matter--although I believe that Roe, like all decisions, should be given stare decisis effect absent extraordinary circumstances. But as to whether I would reach the same result with different reasoning if Roe were before me as an original matter, it is simply a very difficult question. Shouldn't prospective federal judges answer the question exactly as Estrada did? Shouldn't a virtuous judge wait until deliberating before answering such a question? Of course, if you are a neorealist and believe that politics should determine the answer to the question whether Roe was correct, then deliberation is simply irrelevant. Most thoughtful Americans have a view as to whether abortion should be permitted as a matter of policy as opposed to law. But the legal question requires careful deliberation, including the consideration of a variety of complex arguments, historical sources, and prior Supreme Court opinions. Most lawyers have a gut instinct about how they would come out after deliberating, but that's not the way judges are supposed to proceed. And another thing. I suppose that many critics of Estrada believe that he is simply lying--that he does have a fixed opinion about Roe, but he is withholding it for political reasons. I surely don't know Miguel Estrada well enough to make such a serious charge about the deficiency of his character, and I suspect that many who believe he is lying themselves have no reason particular to Estrada to support their belief. My guess is that they assume that he is a liar, simply because he was nominated by President Bush. "They are all liars."--the reasoning goes. And I suspect many supporters of Estrada have exactly the opposite take. Many of Estrada's supporters think that most Democratic critics of Estrada are simply willing to make up lies about him for political advantage--but I certainly have no reason to believe that charge either. The Estrada controversy is simply another piece of evidence that we are in a downward spiral of politicization--which has destroyed almost every shred of mutual trust and respect between the Democrats and Republicans in the Senate, at least insofar as this issue is concerned.

Posner on Plargarism It's fraud, not theft. Here.

New Papers on the Net Here is today's roundup:
    Terrence Chorvat (George Mason) offers Perception and Income: The Behavioral Economics of the Realization Doctrine. The abstract:
      The requirement that gains be "realized" before they are subject to income tax is one of the most fundamental doctrines in tax law as well as being one of the most controversial. The common assumption in the academic literature is that this requirement leads to significant inefficiencies and inequities. This article argues that requiring a realization event is generally the best way to measure taxable income because it is consistent with how individuals actually perceive income. This perspective helps us to understand the development of the realization doctrine as well as suggest ways in which the current tax system can be improved, such as exempting some of the amounts reinvested in mutual funds from income taxation.
    Mary Anne Case (Chicago) uploads Developing a Taste for Not Being Discriminated Against, forthcoming in the University of Chicago Law Review. From the abstract:
      Using as a jumping-off-point Ian Ayres's Pervasive Prejudice and the new Critical Race Theory reader, Crossroads, this review essay urges that more systematic data gathering, testing, surveying, analysis and theorizing should be done from the perspective of the victims of discrimination in the retail markets with an eye toward developing a taxonomy of the taste for fairness as rich and detailed as the long established taxonomy of a taste for discrimination and using this taxonomy to develop more effective transitional remedies for discrimination.

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 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:
    I found your Sunday piece well reasoned. In responding to Balkin as you have, however, I think you miss an important point about "high politics," namely the extent to which an eschewal of high politics in the judiciary makes things less contentious in the long run as the people's directly elected representatives are forced to hash these things out. You are quite correct to surmise that a judiciary which did not require women's equality was quite likely to find itself with an ERA to confront. But more than that, the mere passage of an ERA eliminates much of the contentiousness associated with its creation. The perfect example here is Roe v. Wade. While I have seen lots of opinions that the result of Roe v. Wade was correct, I have never seen a justification of the logic of the opinion itself. (Remember, I'm just an economist, so I could have missed it.) The short-circuiting of the people which such a decision represents, however, guarantees that it will continue to rankle. There is no question that abortion would be a far less divisive issue today had the Supreme Court kept their noses out of the issue, i.e. putatively upheld every restriction AND every liberalization.
    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:

New Papers on the Net Here is the roundup:
    Il-Horn Hann, (Southern California, Business) Kai-Lung Hui (National University of Singapore, Computing), Sang-Yong Lee (National University of Singapore, Computing)and Ivan Png (National University of Singapore, Computing) upload The Value of Online Information Privacy: An Empirical Investigation. Here is the abstract:
      Concern over online information privacy is widespread and rising. However, prior research is silent about the value of information privacy in the presence of potential benefits from sharing personally identifiable information. We analyzed individuals' trade-offs between the benefits and costs of providing personal information to websites. We found that benefits - monetary reward and future convenience - significantly affect individuals' preferences over websites with differing privacy policies. We also quantified the value of website privacy protection. Among U.S. subjects, protection against errors, improper access, and secondary use of personal information is worth US$30.49 - 44.62. Finally, we identified three distinct segments of Internet consumers - privacy guardians, information sellers, and convenience seekers.
    Sacha Wunsch-Vincent (Institute for International Economics) posts The Digital Trade Agenda of the U.S.: Parallel Tracks of Bilateral, Regional and Multilateral Liberalization, forthcoming in Aussenwirtschaft. From the abstract:
      What the U.S. has not yet achieved on digital trade multilaterally, it now plans to seed in a tight net of gradually increasing bilateral agreements that are negotiated sequentially. The digital trade negotiations on the bilateral front help the U.S. to build coalitions of like-minded trade partners that will make it easier to converge to a consensus that strongly resembles the U.S. approach on the regional or even the multilateral level. But the U.S. negotiators will be likely to face the same problems as in the WTO when the U.S. starts to approach partners for preferential trade agreements that are economically more important and that are also very inclined to rank "cultural diversity" high on their agenda. With respect to other elements, however, (e.g. IPR protection, service liberalization, and general awareness of free digital trade) the U.S. multi-track initiative for digital trade remains a very promising undertaking that may also foreshadow how majorities can be found among an increasingly heterogeneous WTO membership.
    Genevra Richardson (University of London - Queen Mary & Westfield College) uploads Autonomy, Guardianship and Mental Disorder: One Problem, Two Solutions, forthcoming in the Modern Law Review. Here is the abstract:
      The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or to refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult's behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.
    Jan Broekman (Illinois) offers Solidarity and Multiculturalism, forthcoming chapter in THEORY OF LAW AND SOCIETY (2003). From the abstract:
      "The European Union will be nothing if not multicultural." This slogan puts multiculturalism in a global and legal perspective. Multiculturalism is defined here as the major feature of a society, which is predominantly composed of groups with different ethnic, geographic, religious and cultural roots striving for equal positions among its citizens on the market of labor, goods and capital. The legal support system is based upon the concept of solidarity. Its realization, however, clashes in an exemplary manner with formal requirements of law and administration in the EU.
    Davison M Douglas (William and Mary) uploads The Rhetorical Uses of Marbury v. Madison: The Emergence of a 'Great Case', forthcoming in the Wake Forest Law Review. Here is the abstract:
      Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury was not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review and nineteenth-century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of judicial review became far more controversial. Proponents of judicial review seized upon the Marbury decision to legitimize their claims for an expansive conception of the doctrine - particularly after the Court engaged in an extraordinarily controversial exercise of judicial review in 1895 in the Pollock decisions declaring the newly enacted federal income tax unconstitutional. In the process, Marbury became, for the first time, a "great case" - as measured by its treatment in judicial opinions, legal treatises, and casebooks - a moniker that would have been ill applied to the decision for most of the nineteenth century. Marbury's significance today cannot be attributed to the pathbreaking character of the decision. Rather, Marbury became "great" because proponents of an expansive doctrine of judicial review have needed it to assume greatness.
    Paul Caron (Cincinnati) offers Back to the Future: Teaching Law Through Stories, forthcoming in the University of Cincinnati Law Review. The abstract:
      This Essay explains the pedagogical theory behind the new Law Stories series of books to be published by Foundation Press. The Law Stories series is intended to enrich the use of the case method of instruction in the law school classroom. By focusing on fewer cases and pausing for an in-depth review of the seminal cases in the field, the professor can empower students to construct their own schematic understanding of the area of law. Cognitive science teaches that such active learning produces more lasting value to students who are better equipped to process new information and solve new problems within the context of their self-constructed schemata. Professors thus should resist the temptation to do this work for students, conveying our schemata in a top-down fashion, with students playing merely a passive role in receiving this oracular wisdom. As a result, Professors should not sacrifice depth of coverage at the alter of scope of coverage; rather than rush through the signature cases in our subject in order to get to the latest hot topic or fashionable theory, professors should savor the opportunity to unpack with our students what it is that makes these cases central to a deep understanding of the field. The Law Stories series provides the raw material to enhance the study of the foundation cases in different subjects. As the initial book in the series, Tax Stories provides an in-depth examination into ten pivotal United States Supreme Court cases in the development of the federal income tax that provide fresh insights both into particular doctrinal areas of tax law as well as issues of wider application across the tax law.
    Christopher Drahozal (Kansas) Nonmutual Agreements to Arbitrate, forthcoming in the Journal of Corporation Law. From the abstract:
      An increasing number of courts, albeit still a minority, refuse to enforce nonmutual arbitration clauses (clauses that require one party but not the other to arbitrate, in whole or in part) in consumer and employment contracts. Critics take the view that such clauses are unfair to consumers and employees, who must arbitrate their claims while the business avoids arbitration of at least some of its own claims. This article challenges the view that nonmutual arbitration clauses necessarily are unfair. Certainly to the extent market forces constrain business (mis)behavior, nonmutual arbitration clauses may make consumers better off. Commentators who criticize (and courts that invalidate) nonmutual arbitration clauses, however, are skeptical of markets and question the effectiveness of market constraints. This article shows that even accepting – for the sake of argument – the skeptical view of markets and business behavior held by critics of pre-dispute consumer arbitration clauses, a requirement that arbitration clauses contain mutual promises to arbitrate may actually make consumers worse off, not better off. Moreover, such a mutuality requirement may result in arbitration proceedings that are less fair, rather than more fair, to consumers. Thus, while a poorly functioning market is a necessary condition for a mutuality requirement to make sense as a policy matter, it is not a sufficient condition. Courts that refuse to enforce nonmutual agreements to arbitrate may be harming consumers rather than helping them.
    Howard Erichson (Seton Hall) posts Beyond the Class Action: Lawyer Loyalty and Client Autonomy in Non-Class Collective Representation, forthcoming in the University of Chicago Legal Forum. From the abstract:
      Class actions receive the lion's share of academic and policymaking attention, but in practice much mass litigation proceeds on a non-class basis. Non-class mass litigation often resembles class actions in the following sense: numerous plaintiffs depend upon the work of counsel with whom they have no meaningful individual lawyer-client relationship, over whom they have no meaningful control, and whose loyalty is directed primarily to the interests of the group as a whole. Class actions retain the distinction of binding nonparties, but in the relationship between counsel and the represented group, non-class litigation resembles class actions to a much greater extent than generally recognized. Given the attention that class actions have received, it makes sense to look to certain class action concepts and developments to inform our understanding of non-class collective representation.

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:
    This can't be, and isn't, the law. An unbroken chain of Supreme Court rulings anchored in English common law provides that "every succeeding legislature possesses the same jurisdiction and power as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."
    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
    Prelude Northbound on Interstate 15, South of Barstow. Late afternoon. I am driving to Las Vegas on a sad and personal errand. I don't know about you, but when I do long distance driving my mind wanders. My dad. A Seinfeld episode. Blogging. The Internet. The Matrix. And before I know it, I'm thinking about The Matrix Reloaded and a how it gives new meaning for the phrase "special effects." Surprised at myself, I find that I am sympathizing with Agent Smith. What a pain Neo is. Smith plans and prepares, but no matter what how meticulous his plans may be, Neo always has a counter move, an evasion, an exit. No matter how quick Smith is, Neo is always faster. Neo has lost his grip on the apparent reality of the matrix, and so the matrix has no grip on Neo. And that reminds me . . .
    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:
      A Feint Balkin's first move is a feint. He is trying to get me off my guard. In response to my biting the bullet, Balkin writes:
        It follows from this that Larry does not, in fact, think that the states and the federal government should be *constitutionally* prohibited from discriminating on the basis of sex. He believes that sex equality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination.
      Jack is waving his red cape, hoping I will charge. Of course, from the fact that Balkin believes that the Supreme Court's gender equality decisions could not have been justified by the constitutional precedents, the text of the equal protection clause, or the historical evidence of original meaning, it does not follow that I believe that there should be no constitutional prohibition against gender discrimination. First, this move confuses "is" with "ought." My post suggests what I will now make explicit: I support the Equal Rights Amendment. Second, as Balkin later admits, I believe that the gender equality decisions should be followed, because of my strong commitment to the doctrine of stare decisis.
      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:
        [Solum] believes that sex equality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination. But I think this misses the point at issue: Should the principle of sex equality be part of our basic law, our fundamental rights, so that one does not have to get legislation passed in order to secure basic rights for women? One might well have said the same thing in Brown v. Board of Education: let each state decide whether it wants to keep Jim Crow or abolish it; let Congress decide whether it wants to ban segregation in the D.C. schools, or not, and so on. I guess one could take that position with respect to almost every important civil right that doesn't fall within Larry's neoformalist vision of judging. But my point is that if so, this seems to me at least, to be a serious criticism of his position. I don't think it would be sufficient to leave the question of sex equality, or race equality, for that matter, to the tender mercies of indvidual states.
      The feint almost worked. It diverted my attention for a moment. I am tempted to point out that Balkin is mischaracterizing my position, but then it starts to sink in. After I pointed out that I would, in fact, endorse constitutional prohibitions against race and gender discrimination, Balkin would pounce. Because my theory does commit me to the position that many of the Warren Court decisions on these topics were badly reasoned and that some of them were wrongly decided. And even if I were able to salvage a good deal of the Warren Court legacy with subtle or heroic argument, Balkin could slash through that elaborate tissue of defence with a single hypothetical: But what if the precedents, text, and history did not permit those maneouvers? What then? But it gets worse. Balkin continues:
        [Solum] may well think that he can bite the bullet on the sex equality question. But the sex equality example was only one example. What [Solum] does not sufficiently recognize, I think, is that the number of Supreme Court decisions that are not consistent with his model of neoformalist judging are plentiful. Indeed, I would venture to say that there is hardly an area of contemporary civil rights law in which the key precedents protecting civil rights and civil liberties were originally developed consistent with [Solum]'s formula for good judging. Rather, the history of progress in civil rights in this country is the history of courts artfully dodging and sometimes overruling previous precedents, and creatively crafting new doctrinal structures in their stead, often with nary a concern for "plain meaning," structure, or original understanding. The list of cases that were decided in ways inconsistent with [Solum]'s rather narrow conception of good judging is so long that I can't even begin to list them all, but here's a partial sample: the basic doctrines of the scope of free expression, the rule of strict scrutiny for content based regulations, the rule of Brandenburg v. Ohio protecting seditious libel, the contemporary protection of blasphemy and indecency, the public forum doctrine, the rule of New York Times v. Sullivan, the doctrine of freedom of association, the doctrines prohibiting unconstitutional conditions on speech, the constitutional recognition of picketing as a form of protected expression, and that's just the first amendment doctrines that come readily to mind.
      And now, I am literally sweating. And Balkin goes on and on, pouring on the examples, arguing that the whole Warren Court legacy is indefensable on the basis of precedent, text, and history. Now Balkin is surely exaggerating, because many of the Warren Court's decisions were quite conventional--relying on precedents, constitutional text, and evidence of original meaning. But Balkin's exaggerations are of no help to me. Because Balkin is surely right about many of the Warren and Burger Court's important decisions. We all know that. That's why I am sweating. Balkin has me in a corner. My theory would have led to unthinkable consequences had it been followed from 1954 through the late 1970s, whereas Balkin's theory fits and justifies the key decisions that constitute the legacy of the Warren and Burger Courts. Think! There must be some way out of this. Why would anyone with a conscience leave such important issues to the tender mercies of legislators when they could be secure in the hands of the Justices of the United States Supreme Court? Rivulets of ice cold sweat are pouring down my back.
      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:
        If I am correct about all this, then there is an enormous irony to Larry's theory. For despite all of these criticisms, Larry can in fact have his cake and eat it too. He can point out that judges should follow the sex equality cases, the cases broadening the scope of Congressional power, the cases legitimating the administrative state indeed, the whole panoply of cases that I have just pointed to, because they are *already decided,* and judges must follow stare decisis. But here is the irony: The only reason that these things are law now, and that judges must follow them, is because other judges in the past who Larry thinks didn't know how to do their jobs properly violated their oaths of office and inserted these travesties into constitutional law. So Larry's theory commits him to the following paradoxical position: He doesn't have to defend a deeply unjust and unworkable constitutional scheme because other judges in the past didn't follow his advice about what constitutes good judging and inappropriately mixed law and politics in the very ways he accuses me of. And that paradox, I think, suggests that there is something deeply wrong about his theory of judging. He is like a man who is living off the proceeds of stolen goods.
      This is a serious charge. Essentially, Balkin argues that I have engaged in intellectual theft. I have not earned the Warren Court legacy. And he is right. I haven't. I don't claim that I have. My case for neoformalism did not rest on the fact that it preserves decisions that I believe are good on the basis of my own political beliefs. From my perspective, my politics are only marginally relevant to the topic at hand, but Balkin has put them on the table. So I need to say a bit more. My own attitude toward the Warren Court legacy is ambivalent. Many cases have outcomes I applaud and rationales I can endorse. Others have outcomes I like, but rationales that need considerable fixing. Others have good outcomes, but cannot be fixed. Miranda is one of these. From my perspective, it is regrettable that the rule of law requires that Miranda be eroded only gradually, by the traditional formal methods. Miranda warnings are probably a good thing, but their imposition by judicial fiat was one of the great errors of the Warren Court. Of course, the doctrine of stare decisis applies to Rehnquist Court decisions as well. I think Hans v. Louisiana and Seminole Tribe were constitutional mistakes, but neoformalism requires that they be followed despite my antipathy. I could go on, with example after example, but here is the point. I am willing to take the bitter with sweet. Who knows how deeply we see into our own souls. All I can say is that from where I stand, I cannot say that Jack Balkin has seen deeply into mine.
      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.
    Third Interlude California Highway 127, Twilight. As the light fails, whites, reds, and browns fade to gray. This really is a lonely road. No one heading south. No one heading north. Not even an old homestead on the side of the road. I listen to old-time radio--a complicated murder story. Edward G. Robinson is a professor who gets involved in a murder somewhere out in the countryside. It makes me nervous. The signal fades, and I am truly by myself. Random memories succeed, one upon another. Childhood. My sister's room. Her favorite book. Humpty Dumpty:
      As I was saying, that seems to be done right -- though I haven't time to look it over thoroughly just now -- and that shows that there are three hundred and sixty-four days when you might get un-birthday presents --'
      `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.'
    The Defense of High Politics In theoretical debates, you have to play both offense and defense--although as the saying goes, the best offense is . . . So I am not surprised the Balkin focused on what he saw as the weaknesses of neoformalism and avoided most of what I said about high politics. In particular, Balkin had little to say about my most serious argument--that constitutional decision according to high politics is not decision according to law. And as a consequence, high politics is not cure for the downward spiral of politicization that threatens the rule of law. But he says enough for me to move the ball forward. Here goes.
      Balkin's Big Move But Balkin did have something very important to say in reply. Here it is:
        Now, there's another very important side to Larry's post, and it has to do with he thinks are my own views about judging in constitutional cases. Larry thinks that what I am advocating is simple lawlessness, that I am saying that ultimately it's all politics. He is mistaken about this, and he misreads me in large part because he has too narrow a view of what *legal* argument is. I must confess I don't recognize his theory of neoformalist judging in the actual practices of lawyers and judges in America. My view of legal argument is simply more flexible than his, that's why he jumps incorrectly to the conclusion that I think it's all just politics. But I think that history of the practice one is arguing about counts for something. And the more one studies the actual history of the practices of legal argument about the U.S. Constitution, and the ways in which our Constitutional law has actually developed, the more one discovers that these practices are much much more flexible that Larry's model of good judging permits. 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. But that discussion will have to wait for another post.
      If you read my last post closely, you will realize that Jack has made exactly the move that I predicted he would. I offered neoformalism as a normative theory. Balkin is arguing that neoformalism is inadequate as a descriptive theory of constitutional practice. And once again, Balkin exaggerates. Precedent, text, and history are the bread and butter of ordinary constitutional argument. Indeed, once you think about it, you will realize that Balkin faces some important obstacles if he wants to make out the claim that high politics provides an adequate account of the practice of constitutional adjudication from the internal point of view. It is an embarrassment for Balkin that the Supreme Court almost never says anything about "high politics" in its opinions. In fact, if you read the opinions, they almost all pay homage to formalist constitutional methodology. But Balkin has an out. He can say that this is all window dressing. Balkin tells us that if we were at the conferences, we would learn that the Justices are very much in the high political mode when they deliberate. And even if they were more circumspect in conference, Balkin would still have a perfectly good move left. Balkin can argue that only high politics can really explain the decisions of the Warren Court. And while that claim is exaggerated, it surely contains much truth. It is a commonplace of conservative criticism of the Warren Court legacy that many of the Court's decisions were essentially political in nature.
      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.
    Gonzo Jurisprudence But before I close, I must tell you that I find Jack Balkin's work to be amazing, stimulating, exciting, interesting, and maddening. Balkin opens my eyes, even if he makes me see red. Sometimes Balkin's arguments lack logic and proportion, but Balkin is willing to take positions that would make other tremble, and he defends those positions with arguments that take your breath away. Without Jack Balkin, we wouldn't have gonzo jurisprudence.
    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:
      Go ask Alice. I think she'll know.
      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!"

Hasen on Lund on Bush v. Gore and Roe v. Wade Lund argues that academic criticism of Bush v. Gore when juxtaposed with endorsement of Roe v. Wade is Orwellian. Hasen begs to differ.

Sub Judice on Neoformalism & Constitutional Theory Go here and here.

Goelzhauser on the Politics of Judging Goelzhauser has comments on Stuart Buck and posts on my exchange with Balkin.

Runnacles on Razzing This post cheered me up.

Buck on Constitutional Theory Stuart Buck weighs in on the Balkin's high politics approach to constitutional practice.

Marston on the Confirmation Wars Brett Marston posts on the question whether Bush's criticisms of the Senate are disingenuous.

Monday, May 19, 2003
Monday Workshop At Florida State's fine summer series, Sandy D'Alemberte does an internal workshop title The Medical School Preceptorship Model and Legal Education.

Kamm on Just War Theory Today At Oxford's Moral Philosophy Seminar today, Frances Kamm (NYU, visiting Harvard) prsents Failures of Just War Theory.

Sunday, May 18, 2003
A Neoformalist Manifesto
    Introduction It started with a findlaw column by Edward Lazarus on the theme of judicial intergrity. I responded with a post entitled: Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski, and Matthew Yglesias endorsed some of my remarks. Sunday morning Jack Balkin responds in a post that I urge you to read--awesome. In this post, I respond to Jack Balkin's critique and provide A Neoformalist Manifesto. So here goes.
    Neoformalism: What? Labels are tricky. "Formalism" is one of the labels that is most often used by instrumentalist critics of the idea that judging can proceed on the basis of public rules that have relatively stable and determinate meanings. Tom Grey has a very good paper entitled, "The New Formalism," that provides a marvelous but critical discussion of renaissance of formalism in contemporary American legal thought. And when I outted myself as a "formalist" on this blog in January, I titled the post Confessions of Neoformalist to distinguish my views from the "formalism" that we all "know" was impossibly simplistic and wrongheaded. By "neoformalism," I simply mean an up-to-date version of formalism that takes into account contemporary legal theory and reformulates formalist notions so as to acknowledge both American legal realism and sophisticated analytic legal philosophy--especially the important line of thought that runs through Hart-Raz-Dworkin-Finnis and many others.
    Neoformalism: Why? This is a deep and important question--obviously an adequate answer is far beyond the limits of a single post on a blog, but there is a central theme that can be stated simply and concisely. Neoformalism is an attempt to craft a normative theory of judicial practice that answers to the values that we summarize with the phrase the rule of law. On the one hand, the rule of law serves a cluster of instrumental purposes. Neoformalist judging makes the law more predictable and certain--allowing individuals and firms to plan. Neoformalist judging also avoids the long-run problems that can be created by the politicization of the law. When the law becomes thoroughly politicized, it is inevitably corrupted as even the most routine lawsuits become an opportunity for rent-seeking and patronage. On the other hand, the rule of law provides an important set of protections for human liberty and basic human rights. Instrumentalism (or legal realism in its instrumentalist form) is simply not up to the task of fully realizing the very great values we associate with the rule of law. In a nutshell, instrumentalism leads to politicization and over time, the politicization of the judiciary will inevitably undermine the rule of law. I know that these arguments are impossibly sketchy, but that's the best I can do in a paragraph.
    Neoformalism: How? How would a neoformalist practice of judging work? In my post on Saturday, I offered a very brief sketch. For the purposes of illustration, I will discuss only constitutional cases. I do this for two reasons. First, because widening the scope of discussion to include common-law adjudication, statutory interpretation, and administrative law would make even a bare sketch unbloggable. Second, because constitutional interpretation is thought to be a difficult case for formalists. I began my brief sketch with by saying, "first and foremost judges should follow the rules laid down.," and I followed that with a set of guidelines that neoformalist judges might follow in constitutional cases. Let's try to present those more formally, as a set of principles, which are lexically ordered:
      Principle One, Precedent: Judges in constitutional cases should follow an adequate and articulated doctrine of stare decisis. Among the features of such a doctrine is that even courts of last resort (i.e. the United States Supreme Court) should regard their own decisions as binding, unless there is a compelling reason to do otherwise.
      Principle Two, Plain Meaning: When the precedents run out, judges should look to the plain meaning of the salient provisions of the constitutional text.
      Principle Three, Intratextualism and Structure: When the text of a particular provision(s) is ambiguous, judges should construe that provision so as to be consistent with other related provisions and with the the structure of the Constitution as a whole.
      Principle Four, Original Meaning: If ambiguity still persists, judges should make a good faith effort to determine the original meaning, where original meaning is understood to be the meaning that (i) the framers would have reasonably expected (ii) the audience to whom the Constitution is addressed (ratifiers, contemporary interpreters), (iii) to attribute to the framers, (iv) based on the evidence (public record) that was publicly available. (Adapting Grice's formulation of speaker's meaning.)
      Principle Five, Default Rules: And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law. (And in this post, I will only offer a promissory note with repsect to the content of such principles.)
      Principle Six, Lexicality and Holism The first five principles are to be understood as lexically ordered in the following sense. Judges should order their deliberations by the first five principles--attempting to structure their conscious deliberations by attending to the features highlighted by each each principle in order before proceeding to the next principle. But this requirement does not entail that judges either will not or should not recognize that the considerations thematized by one principle may be relevant to deliberations explicitly organized by another principle. Thus, the interpretation of a precedent will sometimes (perhaps always) require consideration of the text, structure, and original meaning, and so forth. (Lexical ordering is a guideline for structuring deliberation, and is not inconsistent with the observation that interpretation involves what Gadamer called the hermeneutic circle.) These are principles not rules, and lexical ordering operates a methodological heuristic and not as a rigid rule.
    It goes without saying that this is a simplified theory of constitutional interpretation. It is offered for the purpose of pointing in the direction of a more fully-developed neoformalist theory of judging.
    Neoformalism: Who? A neoformalist methodology is a necessary but not a sufficient condition for realization of the rule of law. Even the most elaborately detailed set of methodological principles would be of no avail, if applied by judges who aimed to bend the method to the goals supplied by their political ideology. For this reason, a neoformalist theory of judging is incomplete without a complimentary account of judicial character--of the judicial virtues and vices. To adumbrate this aretaic turn, for neoformalist to work, judges must be selected for thier possession of the following virtues, among others:
      --Judicial Courage. Judges must not be so fearful of their social position or reputation that they are unwilling to do what the law requires, even when it will be unpopular.
      --Judicial Temperance. Judges must have their desires in order--in order to avoid the temptations that can lead to corruption. The phrase "sober as a judge" reflects the recognition of this fact in folk jurisprudence.
      --Judicial Intelligence. Judges need to be pretty smart, because the law is frequently complicated or obscure. Moreover, a good judge must be "learned in the law."
      --Judicial Wisdom. Sound rule application requires legal vision--the ability to recognize the legally salient features of a choice situation. Rules do not apply themselves, and only a judge with the virtue of phronesis or practical wisdom will consistently apply the rules in a sensible way.
      --Justice. Judges must posesse the virtue of justice--the disposition to decide in accord with the law, as opposed to whim, partiality, bias, or political ideology.
    Let me repeat an important point--the laws do not apply themselves and correlatively the constitution does not interpret itself. Bad judges can make a mess of the best system of rules. Corrupt judges can depart from even the clearest rule. Political judges can bend the law to their own ends. But stupidty, corruption, and politicization are not inherent features of human nature. Judicial virtue is possible, and many judges on the bench today are virtuous. Neoformalist depends on these facts.
    The Virtue of Justice
      Balkin's Brilliant Argument And this brings me back to Balkin's primary challenge. Balkin raises exactly the right objection. He makes the right move. He focuses the debate on the crucial issue: what is the virtue of justice? I will explain after I quote Balkin's formulation of the objection:
        Let me take a simple example. I assume for purposes of discussion that Larry (and Matthew, for that matter) would agree that women should not be subjected to discrimination by the states or the federal government. In fact, the line of sex equality decisions that begins with Reed v. Reed in 1971 is something that I think most federal judicial nominees would be expected to agree with; or to put it another way, any judicial nominees who forthrightly stated that sex discrimination was constitutional would likely never be confirmed. I would go further: these precedents are something that we can and should be proud of; they demonstrate that we have become a freer, more equal, more tolerant, and more democratic society than we were before. To me they are not examples of bad judging, but examples of good judging, and if a theory of judging is inconsistent with them, I think that is a reason to be suspicious of the theory.
        Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down."
      Oh, man! Am I in trouble now. Balkin has chosen his example with care. It seems to put me on the horns of an inescable dilemma. Either I agree that the gender equality decisions were wrong when originally decided--showing that I am against equality for women (and putting me in very bad company) or I try to argue for the Supreme Court's gender equality jurisprudence on neoformalist grounds. But if I grasp the second horn of the dilemma and try to argue that neoformalism supports the gender equality decisions, then I will open the door for Balkin to show that I am really a neorealist in disguise. Now, I am sweating. How will I get out of this?
      Biting the Bullet So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.
      The Flip Side And it is important to remember that there is a flip side of Balkin's argument. It is an accident of history that Balkin and I are debating these issues in 2003. In the long run of American history, the Warren and Burger courts are not the rule, they are the exception. The judicary is not usually the vanguard of progressive politics. The judiciary is usually a force for conservative values and entrenched interests. Balkin argues for constitutional change through what he calls high politics (see Balkin here, my satirical critique here, and Balkin's reply here.) But high politics can be practiced by the left and the right, by the progressives and conservatives, by the friends and foes of women's equality. If you read Balkin's full post, you will find that he argues that the Supreme Court's gender equality jurisprudence cannot be supported by precedent, text, structure, or original meaning. Balkin argued that the only justification for the gender equality decisions was "high politics." This is very, very important. So Balkin's theory argues that high political judicial decisionmaking is justified even when the decisions run contrary to the precedents, text, and original meaning of the Constititution. And hence, Balkin is committed to the proposition that high political decisions overruling Roe v. Wade or Brown v. Board or even the very genderal equality decisions he endorses would be legitimate. Legitimate, not right. Balkin can argue that the high politics that would lead to these results would be bad high politics. But he cannot argue that it would be illegitimate high politics. By way of contrast, neoformalism leads to the conclusion that it would be illegitimate to overrule Roe, Brown, or the gender equality decisions for political reasons. If Balkin's theory were followed, then the progressive decisions he treasures can be blown away by a shift of the high-political winds (the jet stream of politics). If neoformalism were to prevail, then the progressive decisions he treasures and many Rehnquist Court decisions he dislikes would both be protected from high political hurricanes and tornados. Of course, neoformalism does not require precedents to remain unaltered forever. A gradual process of case-by-case adjustment can lead even neoformalists to the conclusion that a precedent has become bad law.
      The Downside of High Politicization But the flipside is not the real downside of Balkin's theory. The real downside of "high politics" is that it poses a fundamental threat--over the long run--to the rule of law. Balkin is a master rhetorician and a brilliant argumentative tactician, but even he cannot disguise the true nature of his position. Balkin's fundamental position is that the judges should make political decisions in constitutional cases, even when those decisions cannot be justified by precedent, text, or history. Balkin knows that many readers (especially those outside of the legal academy and departments of political science) will have great difficulty swallowing this radical position. So he tries to sugar coat it. Here is what he says:
        Does all of this mean that I don't think that the Supreme Court should decide cases according to law? Of course not. It's simply that I have a much more capacious view about what decision according to law is. It's not just following the rules laid down, and it's not just moving from modality to modality in hierarchical order. Judgment according to law is a matter of, well, judgment. And that judgment, particularly in the big cases, but also in the small ones, inevitably involves considerations of larger political principle, what I have called "high" politics.
      Stunning! Stunningly audacious, that is. By the wave of his magic wand, Balkin transforms decisions that would be understood as lawless by any conventional understanding of the norms of judicial craft into decisions made "according to law." Black is white. Up is down. Left is right. Law is politics. But a rose by any other name would smell as sweet. High politics are politics, nonetheless. High politicization may seem attractive in the short run, but where will it lead in the long run?
      The Downward Spiral of Politicization Actually, high politics might not be such a bad thing in a society with a strong and stable consensus on matters of fundamental value. In such a society, judges would rarely need to strike down legislation on the basis of high political decisionmaking. And when high politics were called for, there would be little disagreement on the bench--since the judges would all share the same political ideology. But we don't live in that kind of polity. As Balkin recognizes, high politics are highly contentious in our current circumstances. Moreover, we are closely divided on a variety of issues with constitutional dimensions. If we live in Balkin's world, then high political ideology becomes the primary criterion for selecting judges--and as a result we get confirmation wars--so long as neither party controls both the Presidency and the Senate. If one party does gain control of both institutions, then it becomes in that party's self-interest to do their best to pack the federal judiciary with ideological judges who will vote for the party's high political preferences when on the bench. Decisions that disregard precedent, text, and history are legitimate--so long as they have high political rationales. Even lower court judges can get into the game. Why not construe Supreme Court precedents very narrowly--if they conflict with your own high political preferences? The Supreme Court can attempt to retaliate with summary reversals, but given the limits of the Supreme Court as an institution, it is inevitable that determined trial court and appellate court judges will be able to circumvent the will of the Supreme Court a great deal of the time. And down the spiral we go. The confirmation process becomes increasingly contentious and bitter. Justices snipe at one another, with colleague accusing colleague of blatantly political decision making. In this atmosphere, will the distinction between high politics and low politics remain inviolate. Will the parties refrain from nominating and confirming low-political judges if they get the chance? Will judges who began their careers as high politicians refrain from low politics once it becomes clear that "Law is the continuation of politics by other means." Does any of this sound familiar?
      How Low Can You Go? Very Low! And where is the bottom of a downward spiral of politicization? Where does this all end? We need not avail ourselves of science fiction or possible worlds to answer this question, because the world of a thoroughly politicized judiciary is all too familiar from human history and comparative jurisprudence. A thoroughly politicized judicary offers no protection for human rights when the judges are aligned with the ruling regime. A thoroughly politicized judiciary views every case as an opportunity for patronage and political favortism. And when the rule of law goes, the piper will be paid in more than the currency of human rights. Without the rule of law, the transparency of markets begins to erode and eventually markets begin to collapse. Of course, there are stopping points on the slippery slope short of the complete breakdown of the rule of law. Most significantly, as the rule of law begins to erode the costs begin to become apparent, creating political pressures for the reformalization of the judiciary. My point is not that we are doomed. Quite the opposite. It is that we have choices in the here and now. Deescalation is a possibility. Presidents can nominate judges who are dedicated to the rule of law. The Senate can evaluate those nominees on the basis of their possession of the judicial excellences rather than on the basis of their political ideologies. The highly politicized Supreme Court can gradually move towards a more formalist, constrained approach to constitutional interpretation.
    The Virtue of Justice Again Aristotle's account of the virtue of justice sometimes sounds quite odd to modern ears. Aristotle believed that possession of the virtue of justice meant the disposition to act according to law--call this justice as lawfulness. Contemporary jurisprudence and political philosophy has been infected by a very different conception of justice. Those of us who grew up or came to political maturity in the Warren and Burger Court eras came to see the virtue of justice as the disposition to do the right thing even when it was contrary to the rule of law--call this justice as fairness. As youthful enthusiasm gave way to more sober understandings, contemporary jurisprudence labored mightily to reconcile these two conceptions, preserving the great value of the rule of law while simultaneously endorsing the authority of judges to do what we believed was so clearly righteous even in the face of contrary precedents, text, and history. Elaborate theoretical edifices were constructed--some of them stunningly brilliant in their architecture and execution. Ronald Dworkin's theory of law as integrity is one of those efforts. Jack Balkin and Sandy Levinson's theory of constitutional adjudication as high politics is another. And Bruce Ackerman's hugely ambitious version of popular sovereignty theory is yet a third. These are powerful theories, intricately constructed and defended with deep knowledge, clever argument, and convincing rhetoric. But in the end, even our most brilliant theorists have been unable to overturn fact with argument. A constitutional decision that cannot be justified by precedent, text, or history is not a decision according to the rules laid down. The rule of high politics is not the rule of law.
    A Category Mistake And that, I think, is why these theorists frequently slide between the normative and the explanatory. Because Jack Balkin is right. You cannot explain constitutional change with a normative neoformalist theory of judging. That would be a category mistake, as Balkin well knows. I can well believe that our constitutional history involves theories like Balkin and Levinson's, Dworkin's, or Ackerman's in an explanatory role. More crudely, of course, Balkin is right. Of course, we can only explain the Warren and Burger Courts by bringing politics into the picture. But that isn't a normative argument. "Ought" implies "can," but "is" doesn't imply "ought."
    The Bitter Truth Oh, how I yearn for my optimistc faith that fairness was lawfulness. Oh, how much I want it to be that case that the Constitution is perfectly just. Oh, how I long for the theory that would make this so. Oh, how I wish that my high politics were the law of the land. As a law student, I believed with all my might that it was so. And every once in a while I am able to talk myself into believing once again--although sadly, I find that these glorious moments grow shorter and shorter, fewer and fewer. These days my mouth is full of bitter truth.

Walk Out For interesting commentary of the Democratic walk out from the Texas leglislature check out Marston, Hasen, Oddi, Oman, and Yglesias.

Distributive Justice in the Classroom Go to Tom Runnacles for (you may need to scroll as the permlink is bloggered) a wonderful post that starts with this story, originally from John Lemon:
    At the beginning of class I ask my students how many of them are in favor of progressive redistribution -- taking from those who have a little more and giving it to those who have a little less. About half to 60% of the class stands up (I make them commit to their position by standing up.) I then tell them what I actually was thinking about was the progressive distribution of their grades, taking a few grade points from those who are above the median grade and distributing those extra points to those below the median. (I also propose less severe redistributions that would not put everyone at the median, but still would have the effect of collapsing the grades to the class median.) The immediate reaction is that almost all the students sit down, only one or two students actually remain standing or stand up. Assuming that most of them thought I was originally referring to income (or wealth, not the same thing), I then ask them to explain why they were in favor of income/wealth redistribution but not grade distribution.
And D-Squared has some smart remarks as well.

Saturday, May 17, 2003
Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski
    Introduction. Read Edward Lazarus's findlaw column on judging. Lazarus has a fascinating take on the question: what constitutes the virtue of judicial integrity? Along the way, he touches on the role of political ideology in judging, the Second Amendment to the United States Constitution, and the confirmation wars, and the Alex Kozinski. I am quite sure that both Lazarus and Kozinski will be quite cross with me if they read this post. Why don't you come along for the ride and we'll see where we end up? Jeff Cooper: You can put those exams to the side for a few minutes. You've been cooped up for long enough.
    Kozinki on the Ninth Circuit's Second Amendment Jurisprudence Lazarus starts with a recent dissenting Second Amendment opinion by Judge Alex Kozinski (actually a dissent from denial of a petition for rehearing en banc in Silveira v. Lockyer, a Ninth Circuit decision which rejected the individual rights view of the Second Amendment (which has been adopted by the Fifth Circuit in United States v. Emerson). This is a remarkable dissent. Here is the beginning of Kozinski¡¦s very pointed dissent:
      Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or ... the press" also means the Internet, see Reno v. ACLU (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases---or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington (9th Cir.1996) [reversed]. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
      It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
      The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon--a sawed-off shotgun--was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.
    I will come back to Kozinki's opinion a bit later, but I want to make one thing clear at the outset. Kozinski is surely right that Miller cannot be cited for the proposition that the plaintiffs in Second Amendment challenges to gun control legislation lack standing. If that were the case, then the reasoning in Miller was incorrect, but the Ninth Circuit is simply not free to say that the Supreme Court precedent it cites as most authoritative was wrongly reasoned.
    Lazarus's Interpretation of Kozinski So how does Lazarus characterize Kozinski's opinion? Here is how he starts:
      Here, Kozinski has given his take on some of the most vexing questions of constitutional interpretation: What role should a judge's ideology play in legal interpretation? How does a judge avoid reading his "personal preferences" into the Constitution?
      In addressing these issues, Kozinski surely must be commended for moving beyond the usual claptrap. It's standard fare for politicians and judicial nominees to try to deny that personal views play a significant role in judicial decision-making. The political rhetoric on the issue of judging is filled talk of setting aside personal views when deciding cases and applying "neutral" principles of judging. Yet with one snip of his rhetorical scissors, Kozinski has let the cat out of the bag: neutral principles are an illusion.
    Whoa Nelly! What just happened? Kozinski complains that the majority is inconsistent, reading the Second Amendment in a fashion contrary to the manner in which the Ninth Circuit has read other individual rights provisions of the Constitution. But then Lazarus cites this passage as evidence that Kozinski believes that neutral principles are an illusion? What on earth could Lazarus mean? Let's consider the possibilities:
      --Lazarus might be claiming that Kozinski is arguing that neutral principles are impossible. If so, Lazarus's argument is radically defective. Consider an analogous argument. Ben says that Alice was wrong to break her promise. Alice replies that Ben has just admitted that promise-keeping is impossible.
      --Lazarus might be claiming that Kozinski is arguing that some judicial decisions do not rely on neutral principles. If so, then Lazarus's argument is correct and fair as an interpretation of Kozinski, but then his conclusion "with one snip of his rhetorical scissors, Kozinski has let the cat out of the bag: neutral principles are an illusion" is a gross distortion of the import of his argument. Why? First, because the possibility of unprincipled judging was never a cat in the bag to be let out by a snip of rhetorical scissors. No one has ever claimed that all judges are always principled; no one who would read Lazarus¡¦s column is a school child who would believe such a obviously false claim. Second, the phrase, "neutral principles are an illusion," is, at best, a misleading way of stating that some judges do not adhere to neutral principles. I don't know what Lazarus meant to say, but what he did say doesn't hang together.
    Applying the principle of charity, let's assume that Lazarus exaggerated for rhetorical effect. So, let's put the "neutral principles are an illusion" point to the side for now.
    Indeterminacy? And things get even stranger. Lazarus continues:
      Implicit in Kozinski's description of the judicial process is the unavoidable truth that the meaning of most constitutional provisions is indeterminate. Put another way, conscientious judges, applying typical canons of interpretation, can read the Constitution in a variety of ways. Thus, as Kozinski tells us, libertarians can reasonably read the Constitution one way, while statists read it another.
    Let's pause for a moment here. Lazarus seems to be advancing some version of the indeterminacy thesis--a claim associated with the critical legal studies movement. But this thesis--that any interpretation of a given legal text can be legally correct--is one of the most discredited ideas in the history of contemporary legal theory. At most, we might say that some provisions of the constitution are relatively underdetermine (ruling out some results but allowing a range of a plausible interpretations). Once again, let's put this point to the side.
    Some Does Not Imply All Lazarus continues:
      Acknowledging this truth reminds us exactly why the Senate is absolutely right to be scrutinizing with such care the personal philosophies of President Bush's judicial nominees. As Judge Kozinski reveals, constitutional interpretation as currently practiced by judges of every ideological stripe is a result-oriented enterprise in which a judge's personal philosophy is the touchstone of decision-making.
    This paragraph makes an argument that is clearly fallacious. It is of the form:
      There is an x, such that x is P. Therefore, all x's are P.
    In other words, "One judicial decision departed from neutral principles. Therefore, all judicial decisions depart from neutral principles." This argument commits a logical fallacy. I am not sure what argument Lazarus meant to make, but the one he did make was just plain bad. But it gets even more interesting. Lazarus continues:
      The important question is not whether judging is political - it is - but how a judge can also ensure that he or she is a person of principle, as a judge, and not merely one of politics. If judging is political, what does integrity in judging mean?
    The Question of Judicial Integrity And this is a great question! Before we continue with Lazarus, let's back up and think about the history of contemporary legal thought. The question of judicial intergrity is just one of many that were problematized by disturbing implications of American legal realism. How can a judge have integrity if law is politics? The phrase "neutral principles" comes from Herbert Wechsler, one of the key architects of the legal process school that dominated the legal academy in the fifties and and early sixties. Here is the idea. If you replace formalism with instrumentalism, then it looks like law is just politics. But this is not necessarily the case. One can imagine a constrained role for ideology in judicial practice. Instrumentalist judging can be constrained if judges are willing to adopt neutral principles as the animating purposes. A judge who decides on the basis of neutral principles will stick by her guns, even when her principles lead to results she doesn't like. And of course, this brings us back to Lazarus and Kozinski. Judge Konzinski accused the majority of failing to adhere to neutral principles and Lazarus then says, in effect, "Well, therefore, there can be no neutral principles." So, for the moment, let's assume that Lazarus is correct. Let's grant him the claim that neutral principles are an illusion. What follows?
    Ideological Integrity Back to Lazarus. We pick up where we left off. Lazarus is now giving us his take on Kozinski's view of judicial intergrity:
      Kozinski gives one answer: He suggests that a conscientious judge can indeed avoid the unprincipled over-imposition of "personal preferences" on the interpretive process. All that is required, Kozinski instructs, is to interpret the Constitution with a slavish consistency to one's overarching philosophical commitments. Thus, he admonishes that libertarians must always stick to libertarian interpretations, and statists, to statist ones.
    And skipping forward just a bit:
      Ideological consistency is actually a formula for entrenching personal preferences into judicial decisions. After all, what is an ideology or "jurisprudence" such as statism or libertarianism other than an elevated and systematized collection of "personal preferences"?
    This line of argument is astoninishing. Lazarus has just argued that the "neutral principles" approach is an illusion. Now he seems to be assuming that it is perfectly plausible that judges might "interpret the Constitution with a slavish consistency to one's overarching philosophical commitments" but that this would be a very bad thing, because undermine rather than reinforce the rule of law. It looks to me like Lazarus has contradicted himself, but we can easily fix up his argument. Let's assume that Lazarus argues this as a dilemma: either neutral principles are impossible, or they are possible, but adherence to them would undermine the rule of law. But the second horn of the dilemma is nonresponsive to Kozinski. Let me reconstruct Kozinski's position: If judging is instrumental, then it will better serve the rule of law if judges decide on the basis of general principles (as opposed to ad hoc) judgments. The majority in Silveira v. Lockyer departed from their general principles. Therefore, the majority in Silveira undermined the rule of law. Consistency at the level of general principles is, in fact, more consistent with the rule of law than is ad hoc decision on the basis of political ideology applied to particular disputes. Lazarus's criticism simply does not touch Kozinski's position. Of course, this does not mean that there isn't some other approach to judging that would serve the rule of law better than general principles instrumentalism.
    Methodological Integrity And that brings us to Lazarus's own vision of judicial integrity. Here are the crucial passages:
      [A] far better measure for principled judging is methodological - not ideological - consistency.
      Judges have available to them a variety of legitimate interpretive doctrines for giving meaning to the Constitution. One such method is originalism: looking to the Framers' intent insofar as it can be ascertained (always a problematic task). Another is textualism: Stressing the words of the Constitution, or a given statute, on the ground that they are the law to which all who were present agreed.
      Some judges always look at legislative history; some never do. Some cite the Federalist Papers; some rarely do. Some look more closely at what their brethren think; some try to chart their own course. Some are steeped in constitutional history; some believe the Constitution needs to be dramatically updated for the modern world. All these different methods have very concrete consequences: What sources do judges stress? How much weight do they give them?
      In my view, that is fine: Judges are entitled to choose their interpretive methods. But once they do, they should stick with it, unless they are convinced another is superior, and if so, they should stick with that.
    When I read this passage for the first time, I literally fell off my chair. Just paragraphs earlier, Lazarus trotted out the indeterminacy thesis. Now he is arguing that there are general methods (textualism, reliance on legislative intent, original meaning) that constrain judicial decisions. Wow! I am flabbergasted. I just don't know what to say. What on earth could be going on here? I don't think Lazarus is trying to pull the wool over our eyes. His argument is not clever enough for that. Rather, I think Lazarus must somehow be blind to the obvious contradictions in his own position. And I suspect that this kind of blindness is actually quite common.
    Asymmetrical Perceptions and Cognitive Malfunction Because it is my suspicion that most of us see the flaws in other's arguments more readily than we see the flaws in our own arguments. I suspect that many on both the left and the right believe that thier own positions are more or less consistent (both at the level of ideological principle and at the level interpretive methodology) while simultaneously believing that most of their opponents are inconsistent on both scores. This is related to the well-known psychological phenomenon of cognitive dissonance. I have friends on both the left and the right. Many of my left-wing friends believe things like: "Repubicans are all greedy. Members of the Federalist Society are part of a conspiracy to take over the federal bench. Originalists only pay attention to the historical evidence when it suits their ideological purposes." And many of my right-wing frineds believe things like: "The Democrats' chief objective is to use the power of government to steal from those who work hard to pay off Democratic interest groups. Left-wing judges deliberately ignore the law in order to carry out a political agenda they know could never succeed at the ballot box. Left-wing legal academics will adopt any theory that supports thier ideological objectives, and then disregard it in their very next article if it proves inconvenient." And guess what? When, from time to time, I ask members of each group about these asymmetrical perceptions, they say: "I know that the other side says they believe those things about us, but that's just rhetoric and propaganda. But they really are evil or maybe just stupid." You know I'm not exaggerating. I've heard words very much like these, over and over again. Of course, there are exceptions on both sides of the ideological divide. And those who are able to see the flaws in their own beliefs have an important virtue--intellectual integrity. They are willing to put their own beliefs to the same tests they put the beliefs of their opponents.
    Judicial Integrity: Consistency is the Minimum And I would argue that there is a lesson here that applies to the question: what is judicial integrity? Let me suggest that the minimum condition for judicial integrity is consistency. Different judges have different judicial philosophies. Some believe that the constitution should be interpreted instrumentally, to serve certain fundamental values. Others believe that the constitution should be interpreted formalistically, by following precedent when it is available, reading the text for its plain meaning if that is possible, and relying on history to resolve the gaps and ambiguities. At a minimum, judicial integrity requires consistency in judicial philosophy. If interpret instrumentally, relying on general principles, then do that across the board--even when you don't like the results. If you follow the original meaning as a general rule, then don't depart from it because you don't like the original meaning of a particular provision. Judges on both the left and the right have been guilty of inconsistency, and in my opinion, inconsistent judges are bad judges--whether or not I like their politics.
    Judicial Integrity: Fidelity to Law and Concern for its Coherence Judicial integrity as consistency is a thin theory of judicial integrity. Only those who deny the possibility of consistency or the value of integrity itself would challenge this theory. But a more robust theory of judicial integrity is available. I have argued elsewhere that the key judicial virtue is the virtue of justice--the disposition to decide cases on the basis of the law rather than on the basis of whim, favoritism, or political ideology. This is a relatively thick theory of judicial integrity, because it assumes a particular conception of the virtue of justice. Now here is the odd thing. I find Lazarus's critique of Kozinski to be radically off the mark--it is filled with sloppy argumentation and contradicts itself at several points. But I agree with Lazarus's bottom line. Judges should adopt a set of general principles (libertarian, statist, communitarian, liberal, whatever) and then read the constitution so as to realize the principles they endorse. Judges should be trying, as best they can, to figure out what the constitution means as law. That means that first and foremost judges should follow the rules laid down. Even the Supreme Court should regard its own precedents as binding, unless there is a compelling reason to do otherwise. We've been speaking mostly of constitutional law, so I will limit myself to that topic by way of illustration. When the precedents run out, judges should look to the plain meaning of the constitutional text. When the text of a particular provision is ambiguous, judges should look to other provisions and then to the structure of the Constitution as a whole. And if ambiguity persists, judges should make a good faith effort to determine the original meaning. And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law.
    Back to Kozinski So in the end, it turns out that I disagree with Kozinski. The fact that a particular judge construes the freedom of speech broadly does not entail that that judge should read the right to bear arms broadly. It depends on the precedents, text, structure, and original meaning. Kozinski's bottom line was off the mark. But on the other hand, Kozinski's criticisms of the majority in Silveira v. Lockyer were on the money--it was a badly reasoned opinion. I am no expert on the Second Amendment, but I have followed the debates with some care. I suspect that Kozinski is right on the merits as well--although I could easily be persuaded otherwise upon a serious reexamination of the evidence. As I said at the outset, I doubt that either Kozinski or Lazarus will like what I have to say. And isn't that interesting?
Update: Jack Balkin replies here. And I offer A Neoformalist Manifesto in response to Balkin here. And see Matthew Yglesias here.

Friday, May 16, 2003
Marston on the Rule of Law Brett Marston has a very smart post on the relationship between the rule of law and judicial philosophy on Marstonalia. Marston adopts my simple model of judicial philosophy, which posits that judicial attitudes be placed on a real line that runs between realist and formalist, as illustrated by the following diagram:
__________Judicial Philosophy
__________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|

Marston argues that somewhere along this real line there is a threshold for the rule of law. So:
_______The Rule of Law Threshold
__________Realist__| ___________________| ___________________| ___________________| ___________________|__--Rule of Law Threshold ___________________| ___________________| ___________________| ___________________| ________Formalist__|

In other words, Marston argues that moderate realism is consistent with the rule of law. This is a very interesting and important question. My intuition is that Marston is partly right and partly wrong. It depends on a variety of factors. Here is a partial list:
    --Ideological Consensus. The greater the degree of ideological consensus in a given polity, the more that legal realism will be consistent with the rule of law. This is because ideological consensus will interact with legal realism in two important ways: (1) in polities with a very high level of ideological consensus, instrumentalist judging will be predictability (despite departures from precedent, the plain meaning of the legal texts, etc., (2) likewise, in high-consensus polities, the realist judging will not itself be politically controversial. The rule of law requires that judicial decisions be relatively certain and predictable, and those criteria can be satisfied by a realist judiciary if the judges share a common political ideology.
    --Consistency in Judicial Philosophy Even in a society with a high degree of ideological consensus, the rule of law will be undermined if different judges have different judicial philosophies. So if we had a judiciary componsed of 10% extreme realists, 40% moderate realists, and 50% extreme formalists, this would undermine the rule of law--because different judges would be using different theories of statutory and constitutional interpretation, stare decisis, and so froth. A judiciary composed of 90% moderate realists, with 5% extreme realists and 5% extreme formalists might better serve rule of law values--even though its average formalism score was lower.
    --Rule of Law Tradition. Legal systems may transition from formalism to realism and back. A long tradition of formalism will build a reservoir of predictability and certainty in the law. During a transition from formalism to realism, this reservoir acts as a depletable resource. Moderate realism may be quite consistent with the rule of law under these conditions--although as the reservoir of predictability is gradually depleted, rule of law values may become more and more threatened.
These are just off-the-cuff tentative suggestions. Undoubtedly, a much richer story could be developed. Read Brett's post.

New Papers on the Net Here is today's roundup:
    Howard Erichson (Seton Hall) offers Beyond the Class Action: Lawyer Loyalty and Client Autonomy in Non-Class Collective Representation.
    Jeffrey Miron (Boston University, Economics) posts The Effect of Drug Prohibition on Drug Prices: Evidence from the Markets for Cocaine and Heroin.
    Rosalie Pacula (RAND), Jamie Chriqui (The MayaTech Corporation) and Joanna King (The MayaTech Corporation) upload Marijuana Decriminalization: What does it mean in the United States?.
    Andrew Daughety and Jennifer Reinganum (Vanderbilit, Economics) post Markets, Torts and Social Inefficiency. Here is the abstract:
      In this paper we examine the nexus between product markets and the legal system. We examine a model wherein oligopolists produce differentiated products that also have a safety attribute. Consumption of these products may lead to harm (to consumers and/or third parties), lawsuits, and compensation, either via settlement or trial. Firm-level costs reflect both R&D and production activities, as well as liability-related costs. Compensation is incomplete, both because of inefficiencies in the bargaining process and (possibly) because of statutorily-established limits on awards. We compare the market equilibrium safety effort and output levels to what a planner would choose. We consider two planners, one of whom is able to set safety standards, but takes the market equilibrium output as given, and one of whom can control both safety effort and output. We argue that the former type of planner is the better representative of what the tort system might do if faced with deciding upon a safety effort standard.
      We examine two measures of competitiveness: the number of firms, and the degree of substitutability of the products. Holding substitutability constant, an increase in the number of firms always reduces equilibrium safety effort. On the other hand, holding the number of firms constant, increasing substitutability first decreases, but ultimately increases, the equilibrium safety effort. Non-cooperative firms under-provide safety effort (relative to the restricted social planner's preferred level) when the products are relatively poor substitutes. However, when the products are sufficiently good substitutes, the non-cooperative firms over-provide safety effort. Moreover, the more firms there are in the industry, the less substitutable their products need to be in order for the equilibrium to result in over-provision of safety effort. Under-provision of safety becomes more typical as the rate of third-party exposure increases or as the amount of third-party uncompensated losses increases. Finally, we use the settlement subgame to examine the effects of alternative tort reform policies on the equilibrium provision of safety and welfare. In the presence of third-party victims, welfare can be increased even though changes in such policies may increase expected trial costs.

Confirmation Wars: Bits and Pieces Here are some bits and pieces from hither and yon (but especially with the help of the amazing Howard Bashman):
    -- Jack Newfield has a piece in the nation, titled The Judiciary Wars. Here is a bite-sized chunk:
      A recognition has dawned on almost all the Senate Democrats that Bush is trying to remake America through his lifetime appointments to the federal bench. He is attempting to pack the courts with zealots and activists who are not impartial and who will legislate from the bench. The Senate Democrats have finally realized that this is an assault on their electoral base--women, minorities, workers, consumers--and even conservatives like Fritz Hollings and Mary Landrieu are holding fast on the filibuster. Democratic minority leader Tom Daschle has made the rejection of extremist judges a test of his leadership. Before the filibuster began against Estrada, Daschle told his conference, "We are in this through the tenth cloture vote and the twentieth cloture vote," signaling he would resign as leader if there were defections in the midst of battle.
    Notice the rhetorical shift to legal formalism. Newfield's column assumes that we want formalist judges--who will apply the law and not make it--but this is the usual line taken by conservatives. Interesting.
    --Matthew Thomas writes in response to my recent posts on the two dimensions of judicial attitudes (political ideology and judicial philosophy). Thomas suggests that purely formalist judges would converge. I've blogged his full email and a response here on Legal Theory Annex.
    --David Bernstein comments on the Judicial Watch lawsuit against the Democratic filibuster, joining the chorus of voices opining that the suit will fail for want of justiciability.

Quiggan on Rawls Yesterday, I commented on John Quiggan's claim that utilitarianism lacks serious competitors as a public philosophy, by asking "Rawls?" Quiggan responds:
    Rawls attempts to provide an alternative to utilitarianism, but in the end only produces a variant that is more egalitarian than usual because the underlying preferences are more risk averse than most utilitarians assume [Harsanyi derives standard utilitarianism from an almost identical setup].
But surely Quiggan realizes that this criticism of Rawls was laid to rest decades ago. The role of the maximin principle in the original position has nothing to do with assumptions about preferences for risk--as Rawls himself made clear in A Theory of Justice and has been repeated dozens of times in the secondary literature. The gap between the assessment of utilitarianism in moral and political philosophy and its assessment in economics seems to be almost as large as ever, despite Sen's heroic efforts. Utilitarianism is certainly an open topic in moral and political philosophy, and it has its defenders, but any reasonable assessment of the state of play would eschew the claim that utilitarianism lacks serious competitors. A more likely assessment would be that utilitarianism faces serious challenges--and that sophisticated consequentialists have embraced positions that move away from utilitarianism in significant respects.

Thursday, May 15, 2003
Confirmation Wars: "Moderate" and "Extreme" Are Meaningless Labels Russell Korobkin has a provocative post on the Volokh Conspiracy, arguing that the confirmation wars are a good thing:
    The important question, though, is whether it is appropriate for senators to block a president's nominations just because (1) they have the votes to avoid cloture, and (2) they don't like the nominee. I used to think that these maneuvers were very bad behavior, inconsistent with a civil political dialogue and proper respect for the opinions of others (especially others able to win election as president). But I've changed my mind. The Senate's "advise and consent" power plus the filibuster and cloture procedures allow the minority party to block nominees that they don't like, and they ought to exercise that power. The Democrats are now accused of "playing politics" with Estrada, and of course they are. The Republicans were accused of the same when they stalled Clinton nominees, and of course they were. But presidents play politics as well when they make appointments. The bilateral monopoly situation (neither side can get a judge appointed without the other) should ensure that either (a) presidents appoint only judges that everyone can live with, or (b) presidents must make concessions on some nominations in order to get their favorite candidates confirmed. Either way, the country gets a more balanced judiciary than it would if the Senate played doormat, and one that is institutionally situated to protect the country against whiplash caused by the violent and constantly changing winds of majoritarian politics.
But what is "a more balanced judiciary"? This notion is much trickier than it might at first appear, because there are at least two dimensions that figure into any notion of balance--and even this is a vastly over simplified picture. Let's start with a very simple picture. Suppose that judges can be rated on a simple left/right spectrum:
________Formalist_____________________________ ___________________Left___________________Right
If left/right political ideology were the sole relevant attribute, then we could define moderations as the zone in the center of the spectrum. Let the plus symbol ("+") denote those positions on the left/right political ideology line that are moderate:
________Formalist____________++++++++_________ ___________________Left______Moderate_____Right
But this picture is much too simple. In the real world, judges are mutlidimensional and labels like "moderate" and "extreme" (especially if undefined and criterialess) are virtually meaningless. To get a richer sense of the systematic ways in which judges differe, we need, at the very least, to consider two dimensions of judicial attitude. On the one hand, judges (like the rest of us) have political beliefs, and we might map these onto a simple one dimensional left to right scale. On the other hand, judges have judicial philosophies--attidutes about statutory and constitutional interpretation, the role of precedent, and so forth--and we might map these onto a simple formalist-realist scale. Let's assume that a formalist judge (near the origin of the vertical axis) decides cases on the basis of the legal materials and insofar as humanly possible does not allow her political ideology to influence here decisions. At the apex of the vertical axis would be a realist judge, who decides cases purely on the basis of her ideology--without allow the legal materials (statutes, constitutional provisions, precedents) to influence her decision. This very simple picture yields a two dimensional space:
_____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
But what counts as moderate in this space? The answer to this question depends on your general jurisprudence. Consider the following approaches to defining moderation:
    --Realist Moderation. Some extreme legal realists believe that law simply doesn't constrain judicial decisions. For the realist, moderate canidates for judicial office are those who would decide cases the same way as a politically moderate realist judge. On the diagram below, once again, let the plus symbol ("+") designate the moderate positions in the two dimensional space. The moderate judges will cluster in the top center of the two-dimensional space:
    _____________________Realist Picture of Moderation __________Realist__| ___________________|________+++++++++ ___________________|_________+++++++----Moderate Zone ___________________|__________+++++ ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
    --Formalist moderation.Formalists (or their contemporary cousins, neoformalists) see moderation in an entirely different way. To a formalist, the key to moderation is avoiding politicized judging. Sophisticated formalists know that politics might influence even a formalist judge who tries in good faith to set aside her political beliefs, but formalists believe that judges with different political ideologies will converge on a fairly narrow band of legally correct outcomes. On the formalist picture, the moderation zone will stretch out across the bottom of our two-dimensional space:
_____________________Formalist Picture of Moderation __________Realist__| ___________________|______ ___________________| ___________________| ___________________| ___________________|_________+++++++ ___________________|_______+++++++++++----Moderate Zone ___________________|______+++++++++++++ ________Formalist__|__________________________ ___________________Left___________________Right
Is Judge Judy a Moderate? But now we have a problem. Formalists and realists will disagree about the assessment of particular judicial candidates. Let's take a hypothetical example. Judge Judy is a formalist, and believes that even justices of the Supreme Court should strictly adhere to stare decisis. Judy also believes that at the margins and in cases where there is no precedent, judges should follow the plain meaning of the constitutional text, resorting to structure and history only when necessary to resolve ambiguities. Judge Judy therefore believes that Roe v. Wade should be followed as precedent. Some realists may argue that she is an extreme left-wing judge, because she believes that Roe cannot be overruled. And some formalists may see her as a moderate, because she believes that the doctrine of stare decisis overrides her personal beliefs. This example has been vastly oversimplified, but even in this simplistic form is sufficient to demonstrate an important point. The meaning of the labels "extreme" and moderate" is relative to a theory of general jurisprudence. The very same judge could be labeled a moderate by a realist and an extremist by a formalist--or vice versa. Without articulated criteria for their application, the labels "moderate" or "extreme" are meaningless as applied to judicial candidates.

Confirmation Wars: Bits and Pieces Gathered from hither and yon, bits and pieces on the confirmation wars:
    --Rick Hasen reports on a lawsuit to have the filibuster declared unconstitutional. I agree with Rick, this seems like a sure loser. Also, see Rick's post entitled Changing the filibuster rules? Rational Republicans will say "no".
    --On NRO, Byron York has a piece entitled Nuclear Option, No. Nuclear Response, Yes. Here is a juicy bit:
      Amid all the talk of Republicans using the so-called "nuclear option" to end the Democratic filibuster of the president's judicial nominees, there's been little discussion of perhaps the key question in the matter: How many Republicans actually support that strategy? That's a state secret," says one Republican. "It's fair to say we've been in a constant state of checking for two or three months." The answer is critical, since Democrats — with the possible exception of Georgia's Zell Miller — will undoubtedly oppose the plan, which calls for Republicans to use a parliamentary maneuver to end the filibusters of Miguel Estrada and Priscilla Owen by a simple majority vote, instead of the 60 required by the Senate's rules. United Democratic opposition means the nuclear option cannot be attempted unless it has the nearly unanimous support of the Senate's 51 Republicans. Even if the level of a Republican support is a "state secret," it is clear that there is no unanimity of opinion yet. Rather, Republican senators fall into three categories. Some are ready to try the nuclear option now. Some would be ready if Democrats filibuster more Bush nominees. And some would go forward only if Democrats filibuster a Bush Supreme Court nominee.
    And also on NRO, John Eastman has a piece entitled Filibuster Preservation. Here is a bite-sized chunk:
      Senate Rule XXII currently provides that the filibuster rule can only be changed by a 2/3 vote, a provision that was first enacted back when Dwight Eisenhower was president and southern Democrats were using the filibuster to block civil-rights legislation. As constitutional-law scholars across the ideological spectrum have noted, that supermajority requirement is patently unconstitutional, for it allows a prior Senate to impose its will on the current Senate and deprive the people of their ability to effect change through the majoritarian political process. Liberal U.S.C. Law Professor Erwin Chemerinsky has written, for example, that "entrenchment of the filibuster violates a fundamental constitutional principle: One legislature cannot bind subsequent legislatures." Lloyd Cutler, former counsel to Presidents Carter and Clinton, has contended that the "requirements of 60 votes to cut off debate and a two-thirds vote to amend the rules are both unconstitutional." Conservative law professors John McGinnis and Michael Rappaport have contended that "the Constitution prohibits legislative entrenchment" such as that effected by Rule XXII. At last Tuesday's hearing, Catholic Law School Dean Doug Kmiec, Northwestern Law School Professor Steven Calabresi, and constitutional scholar Bruce Fein all joined with me in affirming that view.
    --Lee Davidson has a column in the Desert News entitled Senators headed straight for judicial N-war. Here's the beef:
      This year, Democrats chose to fire essentially the first nuclear missiles in the escalating battles. They chose to filibuster — or refuse to cut off debate to allow a vote — against two Circuit Court of Appeals nominees: Miguel Estrada and Priscilla Owen. A successful filibuster had never before been mounted against a circuit court nominee. It had only been used once to stop a Supreme Court nominee (who was accused by people in both parties of scandal). Estrada and Owen have support of a majority in the GOP-controlled Senate, normally enough for confirmation. But it isn't when a filibuster arises, which requires a three-fifths vote to stop it — or 60 of 100 senators. So just 41 senators may kill nominations. Hatch and Republicans are furious and say Democrats can expect similar treatment of nominees by any future Democratic president. Why would Democrats resort to the filibuster — and possibly tie nominations in knots for years? Hatch says Democrats are worried that up to three Republicans now on the Supreme Court may resign: William Rehnquist, Sandra Day O'Connor and John Paul Stevens. He says they are making clear they won't allow conservative replacements. So in turn, Republicans in the future may allow no liberals. Stalemate. Senate Republican Leader Bill Frist and Hatch offer a way out. They propose changing Senate rules so that on judicial nominations, only the first "cloture" vote to stop a filibuster would require 60 votes. The next would require 57, the next 54, and the next just 51 — ensuring most nominees would get a vote eventually. But such a rules change itself requires two-thirds approval, or 67 votes. So why do Republicans imagine they could get that? Because of what they call the "nuclear option" that may come instead. In it, Republicans could have the Senate's presiding officer — maybe Vice President Dick Cheney — hand down a parliamentary ruling that the Senate's filibuster rules do not apply to nominations, only to legislation, because the Constitution requires only a simple majority vote for confirmations. Democrats could appeal that — and would need only a majority vote to reverse the chair's ruling. But since the GOP holds the majority, the appeal would probably fail. It would do away with filibusters entirely on nominations, and possibly greatly limit debate. Republicans hope that "nuclear threat" will force Democrats to back off on their use of the filibuster or allow softening of rules. If not and the political nukes fly, both sides will be taking revenge wherever they can. It won't be pretty. Everyone is on the brink now. Either they take a breath and step back, or mushroom clouds are coming.

New Papers on the Net Here is the roundup:
    From SSRN:
      Costas Douzinas (University of London) uploads Identity, Recognition, Rights or What Can Hegel Teach Us About Human Rights?, forthcoming in the Journal of Law and Society.
      Catherine M Sharkey (Columbia) posts Punitive Damages As Societal Compensatory Damages, forthcoming in the Yale Law Journal. Here is the abstract:
        The jury's award of "classwide" punitive damages as a windfall to a single plaintiff, particularly in product liability, fraud, civil rights, and employment discrimination cases, suggests a new angle for approaching the ongoing punitive damages debate. Such classwide assessment of widespread public harms has proceeded under the guise of retributive punishment - the traditional justification for punitive damages - bypassing class action procedural requirements and unjustly enriching the plaintiff. In the wake of the Supreme Court's admonition in State Farm that such a practice violates due process by exposing defendants to the risk of "multiple punitive damages awards for the same conduct," the Article proposes a new category of compensatory societal damages for redress of third-party and societal harms. Hitherto subsumed within punitive damages, damages for specific harms to third parties and more diffuse harms to society are actually compensatory (as opposed to punitive) in nature, and should, once assessed, be distributed by legislatures, courts, and juries accordingly. Drawing upon heretofore unconnected trends in punitive damages and class action torts cases, and state-level legislative and judicial innovations with "split-recovery" schemes for punitive awards, the Article explores various mechanisms for transforming punitive damages into societal damages, including the formation of an "ex post class action" at the remedial stage. The theory of compensatory societal damages - whether or not embraced by legislatures and courts - reveals more clearly the tradeoffs in transforming the doctrine of punitive damages to achieve the compensatory and deterrence goals of the tort system.
      Bruce Owen (Stanford University, Institute for Economic Policy Research) posts Regulatory Reform: The Telecommunications Act of 1996 and the FCC Media Ownership Rules, forthcoming Law Review of Michigan State University-Detroit College of Law.
      Richard Nobles and David Schiff (London School of Economics) post The Right to Appeal and Workable Systems of Justice, forthcoming in the Modern Law Review. From the abstract:
        This article explores the practicalities of a right to appeal. Appeals and appeal systems are usually conceived of in terms of a top-down hierarchy, with appeals functioning as an instrument for superior bodies to correct the decisions of and otherwise to control inferior ones. A fuller appreciation of systems of appeal places at least equal weight on the need for appeal bodies to establish stable, workable relationships with the bodies which they supervise. The need for any appeal system to sustain a workable system of justice refocuses attention from hierarchical control to problems of deference by the superior bodies towards the inferior ones. This way of looking at appeals has the potential to illuminate many recent developments, and can be illustrated by describing recent reforms and reform proposals to both civil and criminal justice.
    Ariel Porat writes that there is a new issue of Theoretical Inquiries in Law up. Here are the new papers: From online papers in philosophy:
      Pekka Väyrynen (Davis, Philosophy) posts Usable Moral Principles:
        A central adequacy constraint on moral theories is that they be usable in moral reasoning as guides for action. This paper addresses the challenge to moral generalism that moral principles are useless in finding out which are the right actions. I argue that the usability constraint is best seen as grounded in the importance of certain forms of autonomy and justice, and draw on the argument both to provide a reasonable interpretation of the constraint and to characterize the sort of agent by reference to whom the usability of generalist theories is appropriately assessed. In a slogan, I propose that moral principles guide us by structuring our responsiveness to reasons in certain ways. In being responsive to moral reasons, the relevant test agents are guided by the principles they endorse in that they reason in light of their understanding of those principles. To show that it is possible for normal moral agents to be such agents, I address objections from the psychology of moral reasoning. This gives me enough to conclude that generalist moral theories satisfy the usability constraint. I finish by arguing that generalist theories are at least no worse off than their particularist rivals with respect to the constraint.

When Did Utilitarianism Make Its Big Comeback John Quiggan has a cryptic post entitled Word for Wednesday: Utilitarianism (definition). Here is the part that left me gasping for air:
    In its role as a democratic public philosophy, utilitarianism lacks serious competitors. Ideas proposed as alternatives are usually jerry-built modifications of ideas about individual ethics that don't scale up to the public sphere.
I don't know quite what to say about this. Rawls? Nozick? What does Quiggan have in mind? Someone should introduce Quiggan to Kaplow and Shavell.

Conservatives versus Libertarians W. James Antle III has piece entitled The Conservative-Libertarian Clash: Values and the Free Society. Here is a taste:
    Just as conservatives must remember the limits of government, libertarians must understand the importance of virtue. A free society rests in part on shared values, including a common understanding of the intrinsic value of each individual and the obligation to respect others’ rights. It is not inconsistent with a regime of minimal government to judge, shun and exclude certain conduct while to affirming, upholding and exhorting certain other conduct. In fact, under this regime the power of real community becomes even more important. A belief in individualism does not mean ignoring the reality that human beings are relational creatures, who live together and form their understandings of the world around them together rather than in total isolation from one another. It is thus important how they live together. The ability to live peacefully together is vital to a free society and may be supported by the moral and cultural framework of that society.
But the relationship between liberty and virtue is much more complicated than this. John Stuart Mill presents the real challenge to conservatives on this issue. His argument that the cultivation of virtue requires liberty has never recieved an adequate answer.

Welcome to the Blogosphere Department Welcome to Philosophy from the (617), or ten philosophers who share an area code. The cast includes:
    Juan Comesana--starting at Wisconsin in the fall. Tyler Doggett--grad student at MIT. Andy Egan--also MIT. Matti Eklund--at Colorado, Boulder. Elizabeth Harman--at NYU. Olafur Jonsson--?? Sarah McGrath--Holy Cross. Agustin Rayo--St. Andrews, soon to be UC San Diego. Carolina Sartorio--grad student MIT. Gabriel Uzquiano--at the University of Rochester
Welcome to one and all!

Wednesday, May 14, 2003
The Curmudgeonly Clerk on the Confirmation Wars The anonymous curmudgeonly clerk has a very thoughtful post on the judicial confirmation wars.

The Evolution of Cooperation Check out Cold Springs Shops for interesting blogging on the evolution of cooperation.

American Constitution Society Blog The ACS has established an open blog. Here is the link. I do believe that the Federalist Society will now need to play catchup!
Update: I am reminded that the Harvard Federalist Society has an excellent blog, link here. Thanks to Adam White for the correction. Here is a link to Adam's post gently chiding me.

More on the Confirmation Wars More bits and pieces from hither and yon:
    Dwight Meredith (P.L.A. - A Journal of Politics, Law and Autism) has a very good post on the confirmation wars. It provides a terrific and opinionated survey of the various options for breaking the deadlock.
    Brett Bellmore writes with a very nice analysis of the model of judicial selection that I presented in a post entitled Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy.
    Hill News has a very interesting report on the Hatch plan for breaking a filibuster:
      Several senior Republican senators are seeking wider party backing for a bold plan that would break the Democrats’ filibuster of President Bush’s judicial nominees. Their approach calls for employing a rarely used parliamentary tactic to overturn current Senate procedures. Under the strategy envisioned by Senate Judiciary Chairman Orrin Hatch (R-Utah), among others, the Republicans would strip any Senate minority — currently the Democrats — of their ability to filibuster presidential nominees. Approval by Senate Majority Leader Bill Frist (Tenn.), which is being sought, would all but assure that the plan would go forward. Under the most likely scenario now under discussion, they would secure a ruling from the chair that Senate Rule XXII does not apply to executive submissions to the Senate — and that includes judicial nominees. Rule XXII provides for unlimited debate on all legislative issues that reach the floor unless three-fifths of the Senate calls a halt. With such an approach, a favorable ruling from the chair on limiting the scope of Rule XXII could stand after only a simple majority approved it. Anticipating these moves, Democrats have already asked the Senate parliamentarian to weigh in on the issue in their defense. From the standpoint of the proponents, the appeal of this “silver-bullet” strategy is that it would quash the Democratic blockade without requiring 60 votes, the number needed by current rules to halt such delaying tactics, or 67 votes, the number needed to change a filibustered Senate rule. One drawback of this proposed tactic is that it might destroy whatever is left of the working relationship between Democrats and Republicans. That is why some legislative experts liken the parliamentary tool to a legislative nuclear bomb. Under the most likely scenario, the presiding officer of the Senate — perhaps Vice President Dick Cheney — would rule that a filibuster of presidential nominees is unprotected by Rule XXII. Democrats would need 51 votes to overturn that ruling. In practical terms, that means they would need the help of two GOP defectors — three if Sen. Zell Miller (D-Ga.) votes with Republicans, as he often has.

Yglesias on Legal Realism and Legal Formalism
    Terminology: Is Legal "Realism" a Misnomer? Matthew Yglesias has a wonderful post on the realism/formalist distinction. Legal Theory Blog is so immersed in, well, legal theory, that it often forgets how peculiar the terminology of jurisprudence sounds to ears unused to this corner of discourse. Here is how I definined legal formalism:
      Let us assume that a perfectly formalist candidates would decide cases entirely on the basis of the legal materials, the text, structure, history, and precedent, without any conscious reliance on poltical ideology.
    And I defined legal realism:
      Let us assume that a perfectly realist candidate would decide cases enitrely on the basis of political ideology, giving no weight to legal materials at all.
    These definitions may be quite perplexing to those who are not familiar with the history of American legal thought in twentieth century. So I am grateful for Yglesias's reminder:
      First off, I should note that when I first started reading Solum's posts on this subject I was very confused. In large part this was simply because I wasn't familiar with the discipline and, therefore, the associated terminology. It seems to me, however, that there's a special problem here, namely the fact that the position he calls "legal formalism" is what I would have called "legal realism" by analogy with moral realism and other kinds of philosophical realism. His "legal realism," by the same token, is what I would have called "legal anti-realism." My idea here owes inspiration to what Simon Blackburn calls "quasi-realism" and that's what I'd like to call it in this context too, but since the terminology seems to be reversed in this field I'm going to call it "quasi-formalism" instead, even though I see it as an extension of Blackburn's general quasi-realist project.
    Yglesias's insight is spot on--and in fact, this is a common reaction among the philosophically trained when they first encounter this terminology. Let me just say a little bit more about the distinction:
      --The term "realism" comes from American legal realism, which is a complex and diverse body of thought. Realists tended to agree that legal formalism was the enemy, but they disagreed about many things. I've always thought that the term realism reflected the realist project of studying the law in action as opposed to the law in the books. Realists were concerned with the way that law actually worked, in the trial courts, in the prosecutor's offices, etc., as opposed to the "theoretical" or "ideal" law that was found in the reports of appellate court decisions. So, one pair of opposites would be "legal realism" versus "legal idealism"--which captures two different approaches to the study of law and not, necessarily, two different approaches to judging.
      --Rather than opposing legal realism to legal formalism, we could instead subsitute instrumentalism for realism. This captures the realist's normative thesis that the law should be used instrumentally to achieve policy goals.
      --The analogy between legal realism and moral realism is both illuminating and imperfect. On the one hand, there is a strand in the legal-realist/legal-formalist debate that does resemble debates over realism in metaethics. This is the strand that centers around the legal-realist claim that there is no "heaven of legal concepts" (in von Jhering's felicitous phrase). This strand of the debate portrays the formalist as a Platonists of some sort. But on the other hand, although such platonist views sometimes figure in legal formalist reasoning, most modern neoformalists emphasize the thesis that law is conventional, a product of human practices. This side of legal formalist is deeply anti-Platonic, and is not a close cousin of moral realism.
      --So, my motto when using the phrases "legal realism" and "legal formalism" is "Stipulate, stipulate, stipulate!" We don't want to do away with these labels which are important to the traditions of American legal thought, but we don't want to use them carelessly, in a way that generates ambiguity and confusion. I try to use "neorealism" and "neoformalism" when discussing contemporary theoretical debates--so as to highlight that my usage is stipulated rather than purely conventional.
    Sound Political Ideology Here is Yglesias's next move. It is a really nice one. Yglesias notes that I defined a judge who is a pure legal realist as a judge who decides cases purely on the basis of political ideology without regard to the legal materials (e.g. the legal texts). But Yglesias observes:
      Now we need to note that a "political ideology" is a fairly wide-ranging thing. It includes, of course, things like my views about taxes, the morality of abortion, the proper role of states' rights, etc. But it also includes things like my view of what a good judicial system would look like. So the realist thinks that cases should be decided "entirely ont he basis of sound political ideology including a sound view of the judicial function."
    Yes and no. Yes: this is exactly right as a matter of normative political philosophy. A comprehensive political theory should include as a module or component a theory of law that includes a theory of the judicial function. No: But this way of framing the issue is not illuminating. If we are asking the question, "What is the sound theory of the judicial function?," then we won't get anywhere by contrasting two views one of which is that judges should decide cases in accord with a theory that includes as a module a "sound theory of the judicial function."
    Digression: The Point of the Post to Which Yglesias Responded Let me get this out of the way quickly. The post to which Yglesias responded was entitled Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy. The point of this post was to present a simple model of the judicial selection process. The versions of legal realism and legal formalism that I laid out for the purposes of the model were not intended as versions that we would compare as a matter of moral or political philosophy. When we engage in that project, we need to build the best version of each theory--something I was definitely not attempting to do for the purpose of building a simple game-theoretic model of the judicial selection process.
    Back to Yglesias So now Yglesias is working out the implications of his definition of "political ideology," which he defines as "sound" political philosophy including a sound view about the judicial function:
      But what does this last addition mean? I think it would help to take an example. My belief, for example, as repeatedly expressed on this blog, is that the US Senate is, all things considered, a bad thing. The principle of one citizen one vote is, in my view, a good one, and so the counter-egalitarianism of the Senate is objectionable and it would be better if it were replaced by a body chosen in a more egalitarian fashion. Rather than debate the merits of this view, just take it for granted that this is part of my concept of a sound political ideology. So say I'm a judge and I have a case before me where one party is arguing that the inegalitarianism of the Senate is contrary to the constitution.
      If I were a formalist judge, clearly, my ruling would be that the Senate is perfectly constitutional. Irrespective of one's views on the wisdom of having written the constitution this way, nothing could be textually clearer than that the Senate is supposed to be governed by the "one state, two Senators" principle rather than the "one citizen, one vote" principle. So I will say, "look, I think the Senate is a bad idea, but just because something is a bad idea doesn't make it unconstitutional. I need to decide this case on the basis of 'legal materials, the text, structure, history, and precedent' and those things say the Senate is kosher."
      Now suppose I were a realist judge, would my decision be any different? My answer is no. Why? Well because in addition to the view that the Senate is a bad idea, my political ideology also maintains that the rule of law is a valuable thing. The relevant idea here is that a citizen who wishes to obey the laws ought to be able to figure out which things are going to be considered legal and which illegal. In order for this to work, the determining factor in judicial rulings can't be somewhere in judges' heads (or in the political ideologies that are in their heads) it has to be written down somewhere publicly-accessible.
    Once again: Yes and No. Yes, I absolutely agree with the substance of Yglesias's point. In my view, any really good political theory will include as a module the view that "the rule of law is a valuable thing," and hence require judges to decide cases in accord with the legal materials--in the case of the Senate, the clear constitutional provisions that establish the Senate. No, I don't think that Yglesias's reformulation of the debate between realists and formalists is illuminating. Here is the problem. The debate between realists and formalists is a debate over what is "a sound view of the judicial function." A simplified version of that debate might go as follows:
      Legal Formalist: The rule of law is a very valuable thing. Therefore, judges should decide on the basis of the legal materials. They should follow precedent if it is available. If not, they should try to determine the meaning of the relevant legal texts, i.e. constitutional provisions, statutes, regulations, etc. They should not view the law as an instrument to advance their political goals.
      Legal Realist: The rule of law is sometimes a good thing, and sometimes it isn't. The rule of law is valuable for reasons, principly reasons of predictability and certainty. Those reasons must be weighed against others. So judges should take each case as it comes. Frequently, that best decision, all things considered, will depart from the text of a statue or constitutional provisions in order to achieve some important goal.
      Legal Formalist: That sounds nice, but remember that judges have differing political ideologies and hence different beliefs about what the "best decision" is. Once judges start departing from the texts to achieve what they believe is the best result, the whole process of judging is likely to become politicized.
      Legal Realist: "Likely to become politicized." Where have you been? Mars? It already is politicized, and it will always be politicized. You are really just like me. Only the political results you favor just happen to coincide with narrow, literalist readings of legal texts. I'll bet that when following precedent leads to a result you don't like, you will figure out some sneaky way to get around the cases.
      Legal Formalist: I admit that I am all too human, and I'm sure that my political beliefs sometimes creep into my decisions. We all know that. But you are dead wrong if you think that I always reach the result I want. I apply laws I don't like and follow precedents that I would have decided differently. Sometimes, I find myself pulled in one direction by my political beliefs, and I have deliberate very carefully to compensate for my own biases. But frequently, I can compensate.
      Legal Realist: Buddy, you need to see a shrink. Those cases where you think you are deciding contrary to your politics? I'll bet that if you really examined your self, you'd find that you are doing exactly what you want to do. You are just rationalizing.
    Of course, this is all way too simple. But at this point, I think I am entitled to invoke the this is only a blog excuse! The point of the debate between our philosophically unsophisticated realist and formalist is to preview the issues in a crude but vivid manner.
    And Yglesias Once More So where does Yglesias go?
      All-in-all, it looks to me as if the realist is going to want to do his judging as if he were a formalist. He relies on "legal materials, the text, structure, history, and precedent" not in spite of his political ideology but because his political ideology includes a commitment to the rule of law. If we see a judge who refuses to follow text, structure, etc. the problem with him isn't that he's deciding cases on the basis of ideology, but rather that his ideology is bad, unsound ideology.
      Faced with a judge who has a bad ideology, therefore, I should reject him, just as faced with a congressman candidate who has a bad ideology I shouldn't vote for him. The reason I will oppose my ideologically-incorrect congressman isn't that he proposes to decide legislative issues on the basis of ideology, but rather that he proposes to decide them on the basis of bad ideology. Similarly, faced with an ideologically-incorrect judicial nominee, I should oppose him not because he's ideological, but because he's wrong.
      But there's a difference, you say. The difference is that when considering a candidate for office you need to consider his ideology as a whole whereas when considering a judicial nominee you ought to consider only his ideology insofar as it pertains to his attitude toward the rule of law. This is misguided, however, not because you ought to consider a judge's whole ideology, but because you shouldn't consider any candidate's whole ideology. If I'm considering a candidate for the House of Representatives, for example, I may safely disregard his views concerning judicial confirmations because House members don't get to vote on this. Similarly, I can ignore the views of a candidate for New York Attorney General on the issue of tax policy because he doesn't get a say on that. In other words, one considers a candidate for office's ideology only insofar as it pertains to the office in question. When considering a candidate for the judiciary, therefore, one ought to consider his ideology insofar as it pertains to the rule of law.
      Long story short, we should all be quasi-formalists which is to say that we should all be realists and we should all subscribe to an ideology that affirms the importance of the rule of law.
    And to this, I have only one response: Yes. Read Yglesias's post without my interruptions. And if you aren't already following his marvelous blog, why not start now?
    Post Script:And I have just discovered Jacob Levy's marvelous post responding to Yglesias.

Duke Conference on the Public Domain Courtesy of Kim Weatherall, Here is a link to the conference papers. The extraorindary lineup includes:
    Foreword: The Opposite of Property?--James Boyle
    The Second Enclosure Movement and the Construction of the Public Domain--James Boyle
    Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain--Mark Rose
    Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age--Carol M. Rose
    Ideas, Artifacts, and Facilities: Information as a Common-Pool Resource--Charlotte Hess & Elinor Ostrom
    Mapping the Digital Public Domain: Threats and Opportunities--Pamela Samuelson
    Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain--Yochai Benkler
    Reconciling What the First Amendment Forbids with what the Copyright Clause Permits: A Summary Explanation and Review--William K. Van Alstyne
    Two Relationships to a Cultural Public Domain--Negativland
    "Fairest of them All" and Other Fairy Tales of Fair Use--David Nimmer
    Bayh-Dole Reform and the Progress of Biomedicine--Arti K. Rai & Rebecca S. Eisenberg
    A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment--J. H. Reichman & Paul F. Uhlir
    Reimagining the Public Domain--David Lange

Presser versus Rappaport on the Confirmation Wars The Federalist Society website has a nice debate between Stephen Presser and Michael Rappaport on the constitutionality of filibusters, recess appointments, and other issues relating to the confirmation wars. Download the debate as a .pdf file here. And the Federalists have a nice bibliography here.

Bertram at Oxford At Oxord's Research Seminar in Political Theory today, Chris Bertram (Bristol, Junius) presents Global Justice and Democracy.

Tuesday, May 13, 2003
Dennett on the Evolution of Human Freedom Go here for an interview with Daniel Dennett on his new book Freedom Evolves. Here is a taste:
    Reason: Where do our values come from in the first place? Dennett: The Darwinian answer is a really good one. They don’t come ex nihilo. They evolve over time. Our responsibility for our values is not absolute and it’s not zero. You can’t choose who your parents are, you can’t choose what culture you belong to, and you can’t even choose your kindergarten teacher. But as you mature, you can gradually -- this is the Darwinian part -- incorporate responsibility for your own actions. We try to turn our children into agents that can take responsibility, and then we have to do something that makes parents really anxious: We have to let go. You let go of your children and say, "I’ve done the best I can. Now you’re on your own. I’ve created this hopefully moral agent and released this person into the world." When you do that, you are, as a parent, to some degree, relinquishing authority. "You are your own authority now," you in effect say to the child. "I’m not responsible for what you do anymore. You are responsible for what you do." You’re making them accountable. Some human beings never make it, and that’s sometimes very obvious. They never grow up, or they’re retarded or they’re damaged in some way. They have some pathology that makes them unable to take responsibility for themselves. The fact that there are such people is not refutable, just as there are people who do take responsibility. And then there are the problematic ones, where we just can’t tell. Are they fully responsible adults, or are they more like children? I think it’s important that we recognize the existence of this problematic, penumbral group, but that doesn’t mean that there aren’t people who do take responsibility. It means that we’ve always had this class of people who are problematic.

Campaign Finance Updates If you are interested in the current state of all things BCRA (McCain/Feingold), go to Rick Hasen's Election Law Blog, which has comprehensive coverage and amazing analysis.

Codification of the Economic Substance Doctrine A Taxing Blog has a very nice post of interest to anyone who cares about the relationship between courts and agencies.

Leiter on "It Takes A Theory to Beat a Theory" Re my recent post, Brian Leiter writes:
    I noted your reference to the Epstein dictum. I hereby quote myself (from . . . "Heidegger and the Theory of Adjudication," 106 Yale L.J. 253, 279 (1996)): "as an epistemological principle, the Epstein dictum is nonsense: Significant amounts of recalcitrant data suffice to beat any theory." In the footnote (279 n. 98) I add:
      "I do not mean to deny here the Duhem-Quine thesis about the underdetermination of theories by evidence, or Quine's closely related doctrine that no theoretical statement is immune from revision. Recalcitrant data can always be accomodated if we are willing to make substantial enough adjustments in our background theoretical assumptions. But this subtle point growing out of the epistemology of science is not Epstein's. Epstein asserts that one cannot displace a theoretical edifice simply by adducing evidence inconsistent with the claims of the theory. It is, of course, easy to understand why free market utopians like Epstein would find such a doctrine attractive: It precludes taking into account th actual reality of, for example, labor relations under capitalism. This is precisely what Julius G. Getman and Thomas C. Kohler point out, see Julius G. Getman & Thomas C. Kohler, The Common Law, Labor Law, and Reality: A Response to Professor Epstein, 92 Yale L.J. 1415, 1416-17, 1427-33 (1983), to which Epstein responds...Epstein claims that, according to economic theory, an essentially nineteenth-century legal regime in labor relations will promote liberty and autonomy. Getman and Kohler point that historical evidence shows this is not so. Epstein relies, in essence, "Economic theory says it ought to be so, and unless you have a better theory, it is so." As an epistemologicla precept, this is so bizarre as to defy characterization, but it is certainly not a posture that finds any support from Quine or Duhem."

Confirmation Wars: Bits and Pieces From hither and yon:
    Howard Bashman of the mighty How Appealing has a very thoughtful post responding to my piece from yesterday entitled Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy.
    Terry Eastland has an editorial for the Weekly Standard entitled Filibuster Again! And Again!. Just a bit of fact checking would have been helpful:
      --Eastland says, "But no changes in Senate rules can be made except by a two-thirds vote--an even bigger hill to climb." Inaccurate in two respects. First, the 2/3rds requirement is to close debate on a rule change. The rule change can be made by a simple majority if there is no filibuster. Second, there are a variety of parliamentary techniques--pioneered by Senator Byrd--for effectively changing the rules through interpretation. It is fairly clear that a determined majority could circumvent the 2/3rds cloture requirement--if it were determined enough.
      --Eastland writes, "Not incidentally, the Senate Republican leadership could force the Democrats to conduct a real filibuster--marathon, stay-up-all-night sessions like those of yesteryear. That might fix the process real quick." This myth has long been debunked. 24/7 works to the disadvantage of the majority--which must maintain a quorum 24/7 to keep up the pressure. The filibustering minority needs only have one or two members present. No modern filibuster has been broken by the 24/7 technique.
    Eastland makes a number of other interesting points.

New Papers on the Net Here is today's roundup:

Monday, May 12, 2003
Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy
    Introduction What is driving the confirmation wars? This is a complex question--one that is difficult to conceptualize in a way that simultaneously preserves the richness and complexity of the narrative and also provides enough simplicity to be illuminating. In a series of posts on this blog, I have been focused on the downward spiral of polticization that has characterized the modern history of the confirmation process (Fortas, Haynsworth & Carswell, Bork, Thomas, the Clinton nominees, the Bush nominees). I posited a simple model of the nomination and confirmation process, where the parties can either cooperate and select relatively formalist judges or defect and attempt to secure political judges who favor their respective agendas. Because the confirmation process is not a one-shot game, but is iterated many times, I suggested that we might expect a tit-for-tat strategy to dominate, resulting in a relatively stable equilibirum, in which both parties nominate judges who are committed to the rule of law. Finally, I have argued that the current downward spiral might be explained by two phenomena: (1) a short-term focus on the next election combined with heavy discounting of the long-term benefits of the rule of law, and (2) asymmetrical perceptions--e.g. both Democrats and Republicans believe that it is the other side that is doing the escalating. But this story is incomplete. Yesterday, I posted correspondence with Michael Froomkin that has prompted me to give a fuller version of my story about the confirmation wars. In this post, I shall discuss the way in which the parties evaluate judicial candidates. The model that I present will be simple, but I believe that it caputres an important aspect of the driving forces that have led to the confirmation wars.
    Building the Model: Step One: A Two Dimensional Analysis of Judicial Candidates In the actual world, the evaluation of judicial candidates is multidimensional. Candidates have positions on a variety of issues of interest to Presidents and Senators, from freedom of speech to federalism. Candidates also have complicated judicial philosophies, with views on issues like theories of statutory and constitutional interpretation, stare decisis (precedent) and so forth. To build a model, we must simplify. So I am going to make a huge simplying assumption, i.e. that judges are rated by judicial selectors (Presidents and Senators) on two dimensions. Here they are:
      --Political Ideology. I assume that selectors rate candidates on the basis of their political ideology on a contiunous real line that runs from left to right. Let us assume that a perfectly left canidate scores zero and a perfectly right candidate scores one, with a middle-of-the road candidate scoring 0.5.
      --Judicial Philosophy. I assume that selectors rate candidates on the basis of their judicial philsophy on a continuous real line that runs from formalist to realist. Let us assume that a perfectly formalist candidates would decide cases entirely on the basis of the legal materials, the text, structure, history, and precedent, without any conscious reliance on poltical ideology. Give such a candidate a score of zero. Let us assume that a perfectly realist candidate would decide cases enitrely on the basis of political ideology, giving no weight to legal materials at all. Give such a candidate a score of one.
    We now can represent each judicial candidate as a point in the resulting two dimensional space.
_____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
    So each judicial candidate will have a position in this two dimensional space. In the upper left, will be left-realist judges, who decide cases almost solely on the basis of their left ideology. In the upper right are the right-realist judges, who override the law and decide based on right-wing ideology. At the bottom of the chart are the formalist judges, who decide on the basis of texts, structure, history, and precedent. Let us assume that even a judge who is perfectly formalist in intention will be unable to fully compensate for unconcious biases introduced by ideology. Thus, although right formalists and left formalists may agree most of the time, there will be some issues on which they will decide differently because they are unable to completely compensate for their ideological biases, preconceptions, and assumptions.
    Building the Model: Step Two: How Selectors Rate Candidates Given our simple two dimensional model, how would judicial selectors (Presidents and Senators) rate candidates? This is a complex question, because selectors themselves may vary in both political ideology and judicial philosophy. For the purposes of model building, let's assume a simplified picture. Let's assume that to make an appointment, you need to get the agreement of two players: a right-wing President and a unitary left-wing Senate. (This obviously oversimplifies, because in current circumstances the Senate has a right-wing majority and a left-wing minority with veto power--unless the filibuster rule is changed.) How would they evaluate candidates? Consider each in turn:
      --The President. Let's assume that if you are the right-wing President, you will only be willing to accept realist judges if they are on the extreme right of the political ideology line. As judges become more formalist, you become less concerned with their ideology. That is, the line that defines the set of candidates that are acceptable to the President slopes downward and to the left.
      --The Senate. Now assume you are the Senate (or to be more realistic, the Senate minority with a filibuster-enabled veto). You will be willing to accept realist judges only if they are on the extreme left of the ideology line. As judges become more formalist, you are willing to accept progressively less left-wing ideologies. That is, the line the defines the set of candidates that are acceptable to the Senate slopes downward and to right.
    We can represent these two acceptability curves as follows:
* = acceptability curve for left judicial selector. # = acceptability curve for right judicial selector
___________________Acceptability Frontiers for President & Senate
__Realist1| ________13|_____*______________________________________________________________________# ________14| ________15| ________16|_______*__________________________________________________________________# ________17| ________18| ________19|__________*____________________________________________________________# ________20| ________21| ________22|_____________*______________________________________________________# ________23| ________24| ________25|_________________*______________________________________________# ________26| ________27| ________28|_____________________*______________________________________# ________29| ________30| ________31|__________________________*______________________________# ________32| ________33| ________34|_______________________________*____________________# ________35| ________36| ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42| ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
    Imagine a red line connecting the red * and a blue line connecting the blue #. The area beneath the red line represents the candidates who are acceptable to the Senate (or the Senate Minority with a filibuster veto over nominations). The area beneath blue line represents the candidates who are acceptable to the President. These two areas intersect in an area resembling a pyramid in the lower-middle region. These canidates are acceptable to both parties and we would expect their confirmation. Call this region the confirmation zone. Thus, the simple mode yields two conclusions (predictions if you like), which we can state as follows:
      --Conclusion One: Ceteris paribus, canidates inside the confirmation zone who are nominated by the President will be confirmed by the Senate.
      --Conclusion Two: Ceteris paribus, canidates outside the confirmation zone who are nominated by the President will notbe confirmed by the Senate.
    Of course, these are only ceteris paribus conclusions. All else may not be equal. The Senate might confirm nominees outside the confirmation zone in exchange for some other political favor; the President might nominate from the area to the left of the red Presidential acceptability line for similar reasons. Likewise, the Senate might reject a nominee inside the confirmation zone as a strategic ploy or as retaliation for some other political action.
    Building the Model: Step Three: Candidates Inside the Confirmation Zone Given our model, we would expect the President to nominate from inside the confirmation zone. Let me translate. Given our model, we would expect a right wing President to nominate candidates whose political ideology is relatively moderate and who are relatively formalist. Of course, there is a possibility that the Senate (or Senate minority with a filibuster veto) would reject candidates inside the confirmation zone. Why, because both the President and Senate will preferences inside the zone. To simplify, let's assume that on any given horizontal line (i.e. for any given level of formalism), the President prefers those to the right and the Senate prefers those to the left. Consider the following example. We have two candidates C1 and C2, who are identical with respect to their judicial philosophy score, but different with respect to their political ideology score--C1 is to the left of C2. This situation can be represented in the following diagram, which cuts off the acceptability curves above the confirmation zone:
________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42|________________________________C1_______________C2 ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
    The President prefers C2 to C1, whereas the Senate (or Senate minority) has the inverse preference structure. This looks like a possible prisoner's dilemma. If it were a one shot game, the President might nominate C2, but the Senate (or Senate minority) might refuse to confirm. In the real world, the judicial confirmation process is more like an iterative game where the parties take turns assuming the various roles (President, Senate Majority, Senate Minority). Moreover, the confirmation game interacts with other political events. Given this iterative and interactive structure, there might be any number of stable medium-to-long term equilibria in the confirmation game. One possibility is that as the first mover, the President would have the advantage and the Senate would confirm candidates so long as the President nominates from within the confirmation zone. Another possibility is that the mean ideology score of confirmed judges would equal some value, with candidates from the left of the zone being traded off for candidates from the right of the zone. There are many other possible equilibria--but the two I have identified can serve as illustrative examples.
    Building the Model: Step Four: Candidates Outside the Confirmation Zone Given our simple model, judicial candidates from outside the zone are unconfirmable. Let's extend the model and consider reasons for nominating a canidate from outside the confirmation zone. Here are some possibilities:
      --Playing to the Base. The President might nominate a candidate to the right of the Senate's blue acceptability line, knowing that the candidate might be rejected for reasons that are external to the confirmation game. For example, the President might nominate a canidate from the upper-right quadrant (realist, right-wing), because the base of the Republican party would respond favorably, increasing campaign donations, voter turnout, or votes for the President in a contested primary. A confirmation battle might actually increase these desirable externalities, even if the nominee is ultimately rejected.
      --Asymmetrical Information About Acceptability Curves. The President and the Senate may not know the shape and location of each other's acceptability curves. The President might believe that the Senate's curve is to the right of its true location, resulting in an erroneous belief that the nominee would ultimately be confirmed. Both the President and Senate may have incentives to mislead each other about the true shape and loocation of their acceptability curves in order to gain strategic advantages in the bargaining process. In other words, bluffing may be part of the confirmation game.
      --Uncertainty About Judicial Philosophies. Canidates with long judicial records may have displayed their judicial philosophies in their prior decisions, but some nominees have no judicial experience. In such cases, it may be difficult to make a reliable estimate of the position of the canidate on the judicial philosophy line. Suppose that the Senate adopts a maximin strategy for coping with this uncertainty--essentially assuming that the candidate is close to the top of the scale on realism. Suppose further that the President either has better information or simply assumes that the candidate has an average score. This could result in a the President believing that the canidate is inside the confirmation zone and the Senate (or Senate Minority) believing that the same canidate is outside the zone. Give such asymmetrical beliefs, unconfirmable candidates might be nominated.
      --Horse Trading. For a variety of reasons, either the President or the Senate might be willing to accept a canidate on the wrong side of their respective acceptability curves in exchange for some other political favor.
    Once again, reality outstrips the ability of our simple model to make robust predictions about the actual confirmation process. There are undoubtedly scenarios other than the four that I outline above, and even those three introduce variables that are not capture by the model. Nonethless, even our simple model is illuminating.
    Applying the Model Let's leave the model behind and turn back to the actual world of Bush and Schumer, Owen and Estrada. Does the model help us to diagnose the causes of the confirmation wars? Maybe. I really want to think more about this question, but I would like suggest one possibility. It is possible that Democrats are systematically biased to believe that Republican nominees are more realist than they really are, and that Republicans are systematically biased to see the very same nominees as more formalist than they really are. If this were the case, then Democrats might percieve a particular candidate E as above thier acceptability line, whereas Republicans might perceive that the same canidate as below the line. This situation might be represented as follows, with d(E) representing the Democratic belief about E's position, and r(E) representing the Republic beief about E's position. As before, the diagram cuts off the acceptability curves just a bit above the confirmation zone:
________37|_______________________________________*____# ________38| ________39|_________________________________________________d(E) ________40|__________________________________#____________* ________41| ________42|_________________________________________________r(E) ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
    In other words, if the Republicans perceive Estrada as more formalist and the Democrats percieve him as more realist, these asymmetrical perceptions could lead to a situation where Republicans believe that the Democrats are violating a confirmation norm by refusing to confirm, but Democrats believe that Republicans are violating a confirmation norm by nominating Estrada without offering a political deal in return for Democratic cooperation. If you add to this, a history of escalation, you would have a recipe for a battle royale on the Estrada nomination. And that is exactly what we have. That's all for now.
Post Script: For a guide to my posts on judicial selection, go to the Legal Theory Annex here.

Sen on Justice At Oxford, Amartya Sen presents Why Must Justice Be Seen To Be Done? today.

New Papers on the Net Here is the roundup:
    From Notre Dame Philosophical Reviews, Victor Nuovo, Review of Jeremy Waldron's God, Locke and Equality: Christian Foundations of Locke’s Political Thought:
      In God, Locke and Equality , Jeremy Waldron argues that Locke’s mature writings present an idea of basic human equality, grounded in Christian theism, and that this idea is “a working premise of his whole political theory” whose influence can be detected in “his arguments about property, family, slavery, government, politics, and toleration”. Waldron also argues that contemporary liberalism lacks just such a well founded and versatile idea as well as the resources to supply it. Its self imposed secular stance is the reason for this deficiency. Since Locke’s idea of human equality is rooted in theism, it is only reasonable that contemporary liberalism should relax its restrictive stance and consider religious reasons such as Locke’s for its commitment to equality.
    Peter Danielson uploads Modeling Complex Ethical Agents. Here is a taste:
      Ethics seeks to improve the mechanisms by which agents achieve better outcomes. Therefore it needs a generator of varied agents and a testing regime that can unify over them. For example, we need to know when agents should be selfish, and when more cooperative, and when different ways of being cooperative clash. Crude intuitive modeling methods have restricted ethicists in the past to asking what if every agent followed morality Mk; the more sophisticated modeling methods of economics and biology are too often restricted to selfish agents. In previous work we have found interesting cases where agents that can shift along a selfishcooperative scale race to the top as well as to the bottom. Evidently we need to be able to model non-intuitive combinations of agent-elements. In this paper we extend (Koza 1992)’s Genetic Programming method, introducing a common programming platform for agents, suitable for evolutionary generation and testing. Technically, our method avoids reducing agents to preferences or moves by passing whole agents as objects. Our framework allows agents of wide variety to satisfy a rich set of functions (in this weak sense, a common programming language) by which to learn and to differentially reproduce. This permits us to construct multi-level models of interacting ethical agents of greater variety than previously.
    Joan Esteban & Laurence Kranich post Redistributive Taxation with Endogenous Sentiments.
    Preston McAfee (Texas) uploads Capacity Choice Counters the Coase Conjecture. Here is the abstract:
      The Coase conjecture is the proposition that a durable goods monopolist, who sells over time and can quickly reduce prices as sales are made, will price at marginal cost. This conjecture is examined in a model in which there is a small cost for rapid sales or production capacity. In the “gap case,” any positive cost of production capacity insures that in the limit, as the size of the gap and the time between offers shrink, the monopolist obtains profits identical to those that would prevail when the monopolist could commit to a production capacity, given some weak conditions on demand. Those profits are at least 29.8% of the static monopoly solution. Thus, the Coase conjecture in not robust to capacity costs, with a zero cost producing much lower profits than any positive cost.
    Efe A Ok and Yusufcan Masatlioglu offer A General Theory of Time Preferences.
    Joel Hellmann (World Bank), Geraint Jones (MIT, Economics) and Daniel Kaufmann (World Bank Institute) post Far From Home: Do Foreign Investors Import Higher Standards of Governance in Transition Economies?.
    Joel Hellmann (World Bank) and Daniel Kaufmann (World Bank Institute) post The Inequality of Influence. Here is a taste from the abstract:
      This paper develops a proxy measure of the inequality of influence on the basis of survey evidence from 2002 Business Environment and Enterprise Performance Survey (BEEPS) conducted among 6,500 firms in 27 transition countries. We refer to the resulting inequality as crony bias in the political system that can be measured at both the firm and country level. We examine the impact of crony bias at both the firm and country levels on three indicators of institutional subversion: 1) perceptions of and interaction with courts; 2) security of property rights; 3) tax compliance; and 4) bribery. We find a consistent pattern in which the inequality of influence has a strongly negative impact on assessments of public institutions that ultimately affects the behavior of firms towards those institutions. Crony bias at both the firm and the country levels is associated with a significantly more negative assessment of the fairness and impartiality of courts and the enforceability of court decisions. Further, firms that report crony bias are significantly less likely to use courts to resolve business disputes. Such firms are shown to have less secure property rights than more influential firms. We also find that crony bias is associated with lower levels of tax compliance and significantly higher levels of bribery. The evidence suggests that the inequality of influence not only damages the credibility of institutions among weak firms, but affects the likelihood that they will use and provide tax resources to support such institutions. By withholding tax revenues, paying bribes, and avoiding courts, these firms ensure that such state institutions are likely to remain weak and subject to capture by the more influential. The inequality of influence thus appears to generate a self-reinforcing dynamic in which institutions are subverted further strengthening the underlying political and economic inequalities.
    Joshua Zivin (Columbia, Public Health), Richard Just (Maryland, Economics) and David Zilberman (UC Berkelely, Public Policy) offer Risk Aversion, Liability Rules, and Safety. Here is the abstract:
      This paper investigates the performance of liability rules in two-party stochastic externality problems where negotiations are feasible and side payments are based on the realized level of externalities. Results show that an increase in polluter liability does not necessarily increase safety or efficiency in cases where the polluter is risk neutral. Complete polluter liability is found to yield Pareto optimality. When either party is risk averse, an increase in polluter liability may sometimes reduce safety and efficiency. If the polluter is risk neutral and the victim is risk averse, Pareto optimality is only achieved by assigning full liability on the polluter, i.e. giving the victim complete property rights to a clean environment. If the polluter is risk averse and the victim is risk neutral, no level of polluter liability is optimal. In this case, optimality can only be achieved through a contract on abatement activities, such that the risk-averse polluter receives a guaranteed payment regardless of the stochastic outcome.
    Jeffrey Miron (Boston University, Economics) posts The Effect of Drug Prohibition on Drug Prices: Evidence from the Markets for Cocaine and Heroin.
    Rosalie Pacula (Rand_, Jamie Chriqui (The MayaTech Corporation) and Joanna King (The MayaTech Corporation) post Marijuana Decriminalization: What does it mean in the United States?.
    Bruce Owen (Stanford, Institute for Economic Policy Research) and Jorge Portillo (Economists Incorporated) post Legal Reform, Externalities and Economic Development: Measuring the Impact of Legal Aid on Poor Women in Ecuador.

McGinnis & Rappaport on Supermajoritarianism & Entrenchment John O. McGinnis (Northwestern) & Michael B. Rappaport (San Diego) have an essay in the Virginia Law Review entitled Symnetric Entrenchment: A Constitutional and Normative Theory. Here is an excerpt from the introduction:
    On the issue of constitutional construction, we will offer a comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchment. We will show that a combination of textual, historical, and structural arguments makes a very compelling case against the constitutionality of legislative entrenchment. Posner and Vermeule argue that the constitutional amendment process shows that the Constitution looks favorably on such entrenchment because it expressly entrenches one provision-- the equal suffrage of states in the Senate--against constitutional change. But this argument provides us with the opportunity to show that the Constitution treats constitutional entrenchments differently from legislative ones, as it allows a constitutional amendment to be entrenched against subsequent amendments, while generally prohibiting legislative entrenchment. The larger lesson here is that originalism is a methodology--sensitive to nuance--that can provide distinct answers to questions that normative considerations lump together.
    On the normative issue, we will offer an entirely new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. A symmetric entrenchment occurs when an entrenching measure is enacted under the same supermajority rule that is needed to repeal it. For example, constitutional amendments ordinarily effect symmetric entrenchments, because they are enacted and can only be repealed pursuant to the same double supermajority rules contained in Article V of the Constitution. This theory steers a middle path between a majoritarian position, which would prohibit not only legislative entrenchments but also constitutional ones, and Posner and Vermeule's view, which would allow legislative majorities to entrench measures. Under our theory, there is a strong presumption that only symmetric entrenchments should be permitted. The presumption is intended to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable, entrenchments should generally be symmetric, because the supermajority rule used to enact entrenched measures would improve the quality of these measures and would compensate for the additional dangers that entrenchments pose.
    While the theory generally permits only symmetric entrenchments, this is not an absolute requirement, but a presumption that can be overcome. There are a small number of asymmetric entrenchments, such as entrenchments needed to establish property rights and, possibly, certain entrenchments necessary to form a political union, that are desirable and may override the presumption. We will also explain why it would be advantageous for a constitution to limit entrenchments to a single mechanism, like the constitutional amendment process and its fixed supermajority rules, rather than allowing Congress to pick the degree of entrenchment it desires on a case-by-case basis.

Sunday, May 11, 2003
Froomkin on the Confirmation Wars Michael Froomkin (Miami & cyberprof extraordinaire) writes regarding my recent post entitled Breaking the Deadlock: Reflections on the Confirmation Wars:
    I find your description of the violation of senate norms to be partial -- at least in the sense of 'incomplete'. You left out what should have been the first norm that was violated: Presidents -- especially those with a small majority -- will nominate middle of the road judges that can get consensus support. AFAIK, although I'm hazy on some of the middle period, this norm persisted from the end of the Midnight Judges era to the New Deal. It was threatened by FDR (but he had a big majority), and somewhat reaffirmed by the reaction to the court-packing plan. Even Nixon didn't threaten this norm. Reagan did, but again he had a big majority. Now this president -- who lost at least the popular vote if not the election (Jews didn't vote for Buchanan in Florida) -- set off the chain you document. I think it is partial to start the list with Schumer. And that's why there is no endgame visible. To Democrats, these judges threaten democracy. They don't respect the laws if they don't agree with them. Bush v. Gore demonstrates the danger of letting them control the courts -- they rule that votes cannot be counted because they might not like the results. How does one 'compromise' with that? (Or with Karl Rove?) Imagine a banana republic in which
      * A president and vice president are impeached amidst signs of criminality and attacks on the integrity of the electoral process. They resign. The successor is an obscure congressman. * A few years latter the head of the intelligence service, whose family has long ties to the oligarchs, becomes president. * He fails to be reelected, and rich oligarchs decide to break the man who defeated him. They get him impeached. Conviction fails only narrowly. * The son of the earlier oligarchy-friendly president becomes president thanks to the timely intervention of his brother who the governor of a key province. In the process they use rent-a-mobs to intimidate vote counters, and the issue is decided by the chief court. Judges from the oligarchies' party * Once in office the new president starts a war to distract from domestic problems. He creates a new domestic security office. His Interior Minister claims the right to arrest any citizen any where any time for indefinite duration, without a need to file charges or subject the act to judicial review. * His minister of Media encouraged policies of media concentration that ensures that TV and radio networks would be controlled by oligarchs. They systematically purge members of the opposition party from the media commentary and debate when they are effective. Even singers who express anti-oligarch views are blacklisted and removed from the airwaves.
    Now, I'm exaggerating a little and leaving out a lot, but on those facts we'd say that was one country whose democracy -- if it had one -- hung by a thread. We are not that banana republic -- we have a citizenry that will, I trust, take back its rights. But if I'm wrong, the end game will be even uglier.
Froomkin has an important point, one that I have been ducking. For the most part, I find that the media reports on the question whether particular nominees are extreme are not terribly helpful. One really needs to know the record from the inside. Moreover, the definition of what counts as "moderate" and what counts as "extreme" is relative to one's general jurisprudence. As a neoformalist, my position is that judges cannot be meaningfully placed on a one dimensional scale (left to right). At a minimum, a two dimensional space is necessary. On the horizontal access, let's rate candidates on a left to right scale. On the vertical access let's rate candidates from formalist (at the origin) to realist (at the apex).
_____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
Once we transform the space in this way, the the terms "moderate" and "extreme" will have very different meanings to different evaluators. My own take is that anyone who departs very far from the origin on the vertical axis is an extremist, irrespective of whether their political ideology is left or right. For those who are neorealists, it may well be that "moderate" is measured only by the left to right horizontal axis--because many neorealists believe that neoformalism is conceptually or psychologically impossible. But this kind of abstract discussion won't get us very far. We really need to talk about specific nominees and lay out clear criteria for extremism. That's the only way the conversation can go forward.

Hasen on Bush v. Gore and the Confirmation Wars Check out Rick's post here.

From the Early Days of Legal Theory Blog I posted this back in September 2002, when Legal Theory Blog was really just an experiment. I thought I might share it again today:
    "It takes a theory to beat a theory."--Richard Esptein [92 Yale Law Journal 1435 (1983)] Once a commonplace at faculty workshops everywhere, the old saw that "It takes a theory to beat a theory," seems to be out of favor. Pragmatism, practical reason, and even old fashion ad hocery is all the rage. Has legal theory taken an antitheoretical turn? "Yes," is surely the tempting answer, but before we go there, it is well to remember that there is a distinction between anti-theoreticalism and anti-foundationalism. Pragmatists are anitfoundationalist, but are they really antitheoretical? Of course, there is the easy anti-theory version of the tu quoque: isn't pragmatism itself a theory? And of course it is. As legal theory goes down the antitheoretical path, it might be well to remember that we are treading old ground. Take a look at this website on Anti Theory in Ethics.

Return of Greg Goelzhauser After a brief disappearance, Goelzhauser is back with interesting thoughts about specialization in the blogosphere.

Guide to My Confirmation Wars Posts A complete guide to my posts on the confirmation wars can be found in here in the Legal Theory Annex.

Belated Welcome to the Blogosphere I've just discovered the Curmudgeonly Clerk. This anonymous clerk for the USDC Southern District of Texas has a nice post on the confirmation wars here. Welcome!

Kerr on Cybercrime Orin Kerr (George Washington and the Most Serene Volokh Blog Republic) posts Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, forthcoming in the New York University Law Review. You will want to read this if you have any interest in Cybercrime. Here is a taste:
    In the last twenty-five years, the federal government and all fifty states have enacted new criminal laws that prohibit unauthorized access to computers. These new laws attempt to draw a line between criminality and free conduct in cyberspace. No one knows what it means to "access" a computer, however, nor when access becomes "unauthorized." The few courts that have construed these terms have offered divergent interpretations, and no scholars have yet addressed the problem. Recent decisions interpreting the federal statute in civil cases suggest that any breach of contract with a computer owner renders use of that computer an unauthorized access. If applied to criminal cases, this approach would broadly criminalize contract law on the Internet, potentially making millions of Americans criminals for the way they write e-mail and surf the Web.
    This Article presents a comprehensive inquiry into the meaning of unauthorized access statutes. It begins by explaining why legislatures enacted unauthorized access statutes, and why early beliefs that such statutes solved the problem of computer misuse have proved remarkably naïve. Next, the Article explains how the courts have construed these statutes in an overly broad way that threatens to criminalize a surprising range of innocuous conduct involving computers. In the final section, the Article offers a normative proposal for interpreting "access" and "authorization." This section argues that courts should reject a contract theory of authorization, and should narrow the scope of unauthorized access statutes to circumvention of code-based restrictions on computer privileges. The section justifies this proposal on several grounds. First, the proposal will best mediate the line between securing privacy and protecting the liberty of Internet users. Second, the proposal mirrors criminal law's traditional treatment of crimes that contain a consent element. Third, the proposed approach is consistent with the basic theories of punishment. Fourth, the proposed interpretation avoids possible constitutional difficulties that may arise under the broader constructions that courts recently have favored.

Milestones Department Over 5,000 visits for Legal Theory Blog this week. Thank you for coming.

Saturday, May 10, 2003
Martinek, Kemper, and Van Winkle on Judicial Confirmation Wendy Martinek (SUNY Binghamton), Mark Kemper (Bridgewater State) and Steven Van Winkle (Syracuse) post To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977-1998, forthcoming in the Journal of Politics. Here is the abstract:
    Using nominations to Article III district and appeals court judgeships, we test a model of senatorial treatment of presidential nominations to the lower federal bench, looking both at outcome (whether or not a nomination culminates in confirmation) and process (the length of time it takes the Senate to process a nomination). We find evidence that nominee quality matters, as does composition of the Judiciary Committee and pending judicial nominations. Contrary to charges made in the popular press, however, neither race nor gender makes a difference for ultimate success or failure of a nomination. Duration analysis reveals that race (though not gender) does matter for district court nomination processing time. We also find presidential year and term to matter for both levels of court but the outcome of the Bork nomination to affect only appeals court nominations.

New Papers on the Net Here is the roundup:
    Mark Fenster (University of Florida) posts The Symbols of Governance: Thurman Arnold and Post-Realist Legal Theory. Here is the abstract:
      The legal realist and New Dealer Thurman Arnold's mid-1930s books, The Symbols of Government (1935) and The Folklore of Capitalism (1937), proposed a new field of interdisciplinary post-realist legal scholarship. Called "Political Dynamics," it eschewed realism's commitment to cleansing legal scholarship of the formalist assumption that law lives an independent existence as a quasi-scientific, comprehensive, complete, and conceptually ordered system. Instead, Arnold proposed to study the symbols of legal formalism - including its commitment to procedural rituals and its fetish of the judiciary - as cultural objects through which governing institutions attempt to exercise their political will. Realists sought to debunk formalism's symbols; Arnold sought to understand and ultimately use them to support the New Deal. Arnold's break from legal realism - typically forgotten in descriptions of Arnold as a radical realist - took a number of forms: he abandoned realism's focus on law as a distinct discourse and set of institutions for a wider study of law as one among many governing institutions; he embraced a wide range of qualitative methodologies from the social sciences as appropriate for the study of law and governing institutions generally; and he adopted a detached, ironic voice that enhanced his critical approach with an absurdist sense of humor attractive to readers outside of the confines of legal academia. Nevertheless, though successful in their time and still a source of droll attacks on legal pretensions, Symbols and Folklore failed to establish a coherent and recognizable field of inquiry with a replicable methodology.
      This Article makes two claims. First, to the extent that Arnold both built on and broke from his realist colleagues, Symbols and Folklore force us to consider the limits of realism's continuing relevance as a foundation of contemporary scholarship. Second, in his ironic and accessible monographs Arnold established a critical public voice for the legal academic; that voice remains a compelling, if limited, model for legal scholarship that hopes to intervene in the public sphere. Ultimately, the monographs' position within the narrative of American legal theory provides both an inspiring account of cross-disciplinary inquiry and a cautionary tale of interdisciplinarity's perils.
    Kenneth Abraham (Virginia) and Kyle Logue (Michigan) upload The Genie and The Bottle: Collateral Sources Under the 9/11 Victims Compensation Fund.
    Paul Stephan (Virginia) posts Courts, the Constitution, and Customary International Law: The Intellectual Origins of the Restatement (Third) of the Foreign Relations Law of the United States.
    John T Monahan (Virginia) posts Risk and Race: An Essay on Violence Forecasting and the Civil/Criminal Distinction.
    Jennifer Arlen (NYU) and William MacLeod (Southern Cal) post Torts, Expertise and Authority: Liability of Physicians and Managed Care Organizations.
    Russell Korobkin (UCLA) uploads The Failed Jurisprudence of Managed Care, and How to Fix It, forthcoming in the UCLA Law Review.

Hoosier Take on the Confirmation Wars The excellent Indiana Law Blog has a two part series on the Senate Rules, filibusters, and the confirmation wars. Part one and part two are now both up.

Welcome to the Blogosphere Bernsteinblog by lawprof David Bernstein of George Mason started on Thursday.

Virtues, Vices, Voices William J. Bennett has done more than anyone in recent memory to put aretaic conceptions of ethics on the table of public political debate. The aretaic turn in moral philosophy goes back to Elizabeth Anscombe's famous article, Modern Moral Philosophy in the late 1950s. Anyone who has attended a recent meeting of the American Philosophical Association will know that the pioneering work on virtue ethics by Philippa Foot and others has come to full flower. A contempoary ethics textbook is likely to divide the world of normative ethics into three broad categories, deontological, consequentialist, and aretaic. If the new reports are to be believed, Bennett has a serious gambling problem--surely reflective of a serious character defect. Not that gambling is a vice. Gambling is simply a form of entertainment, and human flourishing surely requires that we all take a break now and then and have some fun. But losing of millions of dollars gambling cannot be part of a well-integrated life plan--it can only be explained by a serious distortion of character. Randy Barnett has some interested things to say about Bennett in a piece entitled Do Unto Others.

Parliamentary Procedure Department How would a Senate Majority effort to break the Estrada filibuster actually work? Here is an interesting bit from the Washington Times on a technique for an end run around Rule 22's requirement for a two-thirds vote to end debate on a change to the Senate Rules:
    The "nuclear option" being discussed among Republicans only has been tried twice in the history of the Senate, according to former Parliamentarian Bob Dove.
    Most recently, it was used in 1975 to make it easier to break filibusters. For more than two decades, civil rights legislation had been routinely stalled in the Senate because it was nearly impossible to break filibustering minorities.
    Vice President Nelson A. Rockefeller came over to the Senate to preside as president of the body and recognized a resolution to change the Senate's "standing rules" to make it easier to break the filibuster.
    Immediately, a "point of order" — or parliamentary objection — was made. Mr. Rockefeller tabled the objection and the resolution was put to a simple up-or-down vote and passed by a simple majority.
    "It was an ugly, ugly scene," said Mr. Dove, who was the Senate's assistant parliamentarian at the time.

Confirmation Wars: Some Bits and Pieces Reactions to recent developments in the Confirmation Wars continues to come in from hither and yon. Here are some choice bits:
    Senator Frist has introduced a variation on the Miller plan. Here's a description from TruthNews:
      The Frist plan would guarantee that a minority of senators could force up to 13 days of debate on any judicial nominee. If they chose to filibuster, 61 votes would be required to invoke cloture - the term for breaking a filibuster - on the first attempt. The first cloture motion could not be filed until the nomination has been pending before the Senate for 12 hours.
      If that motion failed, each successive cloture motion would require three fewer votes to end debate, dropping the requirement to 57 three days later and then 54 after three additional days. If, after 13 total days of debate, three cloture motions had failed, a final vote to end debate and bring the nomination up for a vote would require only 51 senators or a simple majority of the senators present and voting, whichever is less.
    Here is a Newsday report on Frist's proposal.
    News Hours has a transcript of their segment with Cornyn, Schumer, and others.
    Bloomberg reports that Miguel Estrada may have asked that his nomination be withdrawn.
    Seth D. Michaels has a nice post raising a number of points, but emphasizing especially Senator Schumer's plan for bipartisan nominating commissions.
    E.J. Dionne Jr. argues that the Democrats have confirmed most of Bush's nominees and pushes the Schumer plan in a a Washington Post piece.

Friday, May 09, 2003
New Papers on the Net Here are a few papers, more later:
    Susan Klein and Jordan Steiker (Texas) post The Search for Equality in Criminal Sentencing, forthcoming in The Supreme Court Review.
    Paul Stephan (Virginia) uploads Competitive Competition Law? An Essay Against International Cooperation.
    J.H. Verkerke (Virginia) offers Legal Ignorance and Information-Forcing Rules. From the abstract:
      People are often ignorant about the legal rules that govern the most common transactions in their lives. Whether purchasing products and services, leasing real estate, obtaining credit, or finding employment, lay people seem to have a fairly poor grasp of even the most basic legal principles. Of course, our ignorance usually causes no harm. We buy what we need, pay back our loans, and work until retirement without becoming embroiled in a legal dispute. But sometimes parties involved in conflicts over defective products, loan defaults, or employment terminations must assert legal rights or defenses, and some of them ultimately resort to litigation. In these circumstances, it is undeniable that having too little legal knowledge can hurt you. Legal ignorance potentially distorts important economic decisions, leading consumers to purchase unreliable or unsafe products, borrowers to accept harsh credit terms, or employees to rely on illusory promises of job security. This article analyzes one regulatory response to our widespread legal ignorance. It explores how the law encourages legally sophisticated parties to provide legal information to the comparatively poorly informed individuals with whom they do business. I begin by introducing the concept of an "information-forcing" default rule. Then I show how that concept applies to the problem of legal ignorance. The remainder of the article explores a variety of theoretical and empirical difficulties that afflict the use of information-forcing rules to dispel legal ignorance.

Thursday, May 08, 2003
Workshop Today At Yale's Legal Theory Series, Susan Silbey (MIT, Sociology/ Anthropology) presents Governing Green Laboratories: Differential Responses to Regulation.

Breaking the Deadlock: Reflections on the Confirmation Wars
    Introduction The Confirmation Wars are in full swing. Until yesterday, I wasn’t sure how serious the confirmation wars really were. My strong suspicion was that we have been in a downward spiral of politicization. Who knows when it began, with Abe Fortas? Haynsworth and Carswell? With the defeat of Robert Bork? With the Clarence Thomas hearings? With Republican obstruction of several Clinton nominees? Today, I am certain. Whenever the confirmation wars began, they are in full swing now. The Senate Republican Majority would confirm Estrada and Owen in a flash, but the filibuster stands in their way. Yesterday afternoon, while I was Blogging from the Senate Judiciary Hearing Room, I witnessed an extraordinary display. I heard Senator Schumer cry out, “We are deadlocked. We are deadlocked. The deadlock will remain.” I head Senator Durbin say “There is no way out. The President will not surrender. And it will happen again. We live in a closely divided nation, with a closely divided Senate, and a closely divided judiciary.” I saw tempers flare, and the façade of Senatorial courtesy crack. And before all of this I spent several hours in a series of meetings with those who are intimately involved in this struggle. This post summarizes my impressions on the question whether the deadlock can be broken. Here goes!
    The Immediate Context Senator Charles Schumer is clearly the key player. Senator Schumer has changed the nature of the confirmation wars in two fundamental ways. First, he has publicly taken the position that political ideology and not judicial character should be the issue in confirmation of Presidential nominees for judicial office—both on the Supreme Court and on the inferior courts. Second, Senator Schumer has played the filibuster card--first on Estrada and then on Owen. We can quibble about the facts, but one thing is clear. Only one federal judicial nomination has been successfully filibustered—Abe Fortas—and that filibuster had three characteristics that are missing from the Estrada and Owen filibusters: (1) it was about character and not ideology; (2) it was bipartisan, and (3) it was not opposed by a majority of the Senate. Schumer has arguments that his current tactics are merely tit for tat, but I am now absolutely certain that the Republican leadership does not see it that way. They see Schumer’s filibusters as an unprecedented escalation. And in his more candid moments, Senator Schumer actually seems to agree with the Republicans—because Schumer takes great care to argue that extraordinary measures are justified. And so, we are deadlocked, we are deadlocked! And the question is Will the deadlock remain?
    Would You Rather Switch Than Fight? Of course, one way that the deadlock can be broken is that one side can surrender. I must tell you that I get absolutely no sense that either side sincerely believes that the other is on the verge of surrender. Will the President withdraw his most powerful nominations and submit nominees who have Democratic pre-approval? Will the Democrats back down and discontinue the filibuster of Owen and Estrada? Will the Senate Republican majority simply allow the filibuster to continue and even expand? No. No. And no. No one is in the mood for surrender.
    Nuclear Options And that brings us to the nuclear options. What can the Republicans do to break the filibuster? This is really the wrong question. There are really two questions: (1) What can the President do? and (2) What can the Senate Majority do? Here are the options:
      The President’s Option: Wholesale Recess Appointments. Not a peep out of the White House about this option, although it has been floated by prominent intellectuals from the Right, notably Randy Barnett. I have written extensively about this option in a post entitled: Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.
      The Senate Majority's Options. There are two:
        Option One: 24/7 One option discussed by Republican Senators is to force the Democrats to do a Mr. Smith Goes to Washington style filibuster. This will inevitably fail, for reasons I discuss here.
        Option Two: Change the Filibuster Rule. And this is the option that became the focus of Yesterday’s hearings. Beneath the courtesy and smiles. Behind the calls for cooperation. Around the corner from a fresh start. It was there. It was in the room. Something radical. Something unprecedented. Some (and I stress the word “some”) Republicans were making a threat. “If you continue the filibuster of Owen and Estrada, we will change the filibuster rule so as to eliminate the filibuster of judicial nominations.”
    Interlude: The Rules of the Senate Before we go any further, I need to say something about the Senate Rules. Let’s take a look at Rule XIX, from which the filibuster derives, and Rule XXII, the source of cloture (or the ending of debate):
      --Rule XIX.1.(a) reads as follows:
        When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.
      This Rule is the source of the power to filibuster. It doesn’t provide a limit on the amount of time a Senator may speak, and if a Senator is still speaking but a quorum is not present, the Senator is still giving the same speech when a quorum returns.
      --Rule XXII.2, provides in relevant part:
        "Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
    This is the key. Under Rule XXII.2, it takes 60 votes to close debate. Except on a motion to close debate on a rule change—then it takes 67 votes. Sometimes, you read that rule changes take 67 votes, but that is an error. The change can be made with a simply majority of a quorum, but only 67 votes can end debate if the rule change is filibustered. Hence 34 Senators can block a rule change.
    A Scenario So imagine the following scenario. The Republican Majority proposes a rule change. Senate Rule XXII is to be amended so as to allow debate to be closed by a simply majority if the Senate is in executive session considering a judicial nomination. Senator Schumer then begins a filibuster of the rule change. The Majority notices a cloture vote. Cloture fails with all or almost all of the Democratic caucus voting against the motion to end debate. And then . . .
    A Dramatic Moment And then something truly historic happens. At some point, a Senator rises to make a point of order. Let's not worry yet exactly what point of order. The point of order trigges a ruling from the Chair--something to the effect that Rule 22 itself can be modified by a simple majority, despite the text of the rule. Another Senator rises--asking for a vote to overrule the chair, but the chair's ruling is sustained. It only takes a simple majority to sustain the Chair's ruling on the point of order. Now the way has been paved to go back to the nomination, close debate, and confirm Estrada and Owen.
    Why Would This Be Of Historic Importance For two reasons:
      First, the question whether it is legitimate to block a judicial nominee by a filibuster would be settled. The Fortas precedent would have been decisively rejected, and it would become settled that a majority of the Senate has the right to consent to a Presidential nomination--even if 41 Senators are willing to support a filibuster.
      Second, and even more importantly, the institution of the filibuster would have been dealt a death blow. Because the parliamentary technique that I have outlined could be used to break any filibuster that a majority was determined to break.
    Is That All There Is? No. Because this is not the end of the story. I have been dealing with the dramatic scenario at the level of the Senate Rules. And that it an important part of the story, but it isn't the whole story. We need to back up. We need some perspective. We need to see that the internal governance of the Senate takes place on three levels:
      --The Rules. First there is the formal level of the Rules. At this level, a filibuster cannot be broken against the will of a determined minority that posseses 41 or more votes. Such a minority can block a cloture motion on the nomination and it can also block a rule change.
      --The Rulings. Second, there is the still formal level of Rulings by the Chair. Rules, as we know, can be interpreted. In theory interpretations are constrained by the text of the rules, but in practice a judge with the necessary will can find a way to bend a rule. The great master of Senate Rule-Bending was Senator Robert Burd in his days as majority leader. Senator Byrd mastered the technique of the Ruling--setting a precedent that allowed him to twist particular rules to his ends. Memories in the Senate are long. The then Minority is the now Majority. They remember. They are well aware that Byrd's techniques can be turned against the Democrats now.
      --The Norms. Third, there are the norms--the traditional understandings that give shape and meaning to the words of the rules and rulings. The technical means exist to circumvent the filibuster rule. The Chair could rule that Rule 22 does not apply to itself. The Majority could sustaint the ruling of the Chair. This could be debated. It could be spun. It could be decried, but formally speaking, it would be a Ruling--authoritative under the Rules. That this technique has never been used more than two centuries of partisan strife is evidence that the filibuster is supported by a powerful norm.
    When The Norms Come Tumbling Down So now I can tell you what I see. It took a very long windup, but now I am ready to deliver the pitch. The norms of the Senate have been shaken, and as they shake, a set of cascading norm changes might be triggered. Here are the key norms at stake:
      --The Confirmation Norm. The norm has been that when a Senate Majority supports a President's nominee, the nominee will eventually be confirmed--although it is within the norm to put up a great fuss and delay for a considerable period. Senator Schumer has led the Democrats to the verge of shattering this norm.
      --The Filibuster Norm. The norm has been that filibusters may be only be broken by means authorized by the Senate Rules. Although there is an expectation that Senators will cooperate to change the Rules when necessary, the Majority must get voluntary cooperation. It may not force a rule change down the throats of a determined minority that has 34 votes. The Senate majority is threatening to violate this norm as retaliation for Senator Schumer's violation of the confirmation norm.
    What Would Happen Next? Suppose that the up to now unthinkable happened. The Senate Majority does indeed change Rule 22 and rides roughshod over a Democratic Minority with enough votes to block cloture. What would happen next? This is very important. The Democrats would still have many weapons in their arsenal. By way of analogy, a Senator whose filibuster attempt was foiled could then turn to a variety of other techniques--the most famous of these was filibuster by amendment. The rules allow an unlimited number of amendments to be offered. Each has to be voted down. So if you are determined enough, you can prepare literally thousands of amendments--achieving the same effect as a proper filibuster. More to the point, the day to day functioning of the Senate requires unanimous consent on a plethora of matters large and small. If the minority called for a vote on each and every such matter, the day-to-day operation of the Senate would be ground to a halt.
    And After That? But chaos is not a stable equilibrium. Something would have to give. And this brings us to the fundamental difference between the Senate and the House. The Senate operates on the basis of cooperation generated by powerful norms. Yes, Senators fight and filibuster and fuss, but in the end they obey certain unstated rules. In the end after they have made their point, they cooperate. If those norms of cooperation broke down in the dramatic fashion that I have described, the fundamental nature of the Senate would change. The Senate would have to become the House. And the House is fundamentally a dictatorship. The House rules permit the majority leadership to silence the minority. The House rules operate on the principle that someone must have the raw power to maintain order. If the Senate's norms of cooperation were to break down, then the Senate Majority would be forced to grant its leadership dictatorial powers--or to put it less dramatically, the power to control the agenda and to decide who can speak and who must be silent.
    End Games and Exit Strategies And now we are in a position to appreciate just how extraordinary Senator Schumer's actions have been. And we now can see just that the implied threat made at yesterday's hearings was just as extraordinary. But here is the part that I can't figure out. What is the plan for the end game? What are the exit strategies? And I am quite worried. Because I am not confident that this high stakes game of chicken is a contest between drivers with nerves of steel and the instinct to pull away just before the collision becomes inevitable. I am worried that this game of chicken is being played by big egos with hot tempers and frayed nerves.

Wednesday, May 07, 2003
Brett Marston on the Confirmation Wars Hearings For another take on the hearings, see Marstonalia here. My blow-by-blow account is here.

Constitutional Law Blog Greg Goelzhauser's blog has a new name, Strict Scrutiny, and a new focus on Constitutional Law.

Farrellblogger is Now Gallowglass Henry and Maria Farrell have moved from Farrellblogger to a new site: Gallowglass. Here is a nice bit from their new blog: "A big name professor is someone who can "get away with saying dismissable things that won't be dismissed."--an earlier version of this aphorism comes form Invisible Adjunct.

Tushnet Takes on Balkin Which Tushnet you may ask? Find out here.

New Papers on the Net Here is the roundup:

Hasen on the Big Picture--McCain-Feingold (BCRA) Be sure to check out Rick's post synthesizing his reactions to the BCRA decision. Update: I've now read Rick's summary--concise, clear, and cogent.

Lecture Today At Balliol College, Oxford, Richard Rorty presents the Oliver Smithies Lectures. His lecture is entitled: Analytic Philosophy and Narrative Philosophy.

Tuesday, May 06, 2003
Blogging from the Senate Judiciary Hearing Room
    Introduction It is Tuesday afternoon, and I am blogging from the Hearing Room of the Senate Judiciary Committee. If you want my analysis, scroll down to the end of this post. The Confirmation Wars are on the agenda. For months, I have been blogging about the downward spiral of politicization that has characterized the judicial selection process for the past several years. I’ve previously argued that in ordinary times, the two parties play a tit for tat strategy in judicial confirmation hearings. Both left and right have incentives to cooperate in the selection of judges who are competent and dedicated to the rule of law. If one side defects from cooperation, the other can retaliation--tit for tat. Because judicial selection is a complex iterative game, one would expect occasional periods of politicization, in the long run, a punctuated equilibrium of cooperative, fairly nonpolitical, judicial selection ought to dominate. But that is surely not was is happening now. The judicial selection process has been politicized to an extraordinary degree—with two filibusters of nominees to the Court of Appeals occurring simultaneously. What will happen next? There is talk of the nuclear option, wholesale use of the recess appointments power by the President. There is discussion of a change to the filibuster rule. In the hall outside the hearing room, all of this and more was discussed. The hearing is now about to start. Senator Cornyn is looking at this notes. He clears his throat and . . .
    The Hearing Begins John Cornyn is the very model of the modern southern Senator. Tall, high forehead, white hair, a smooth media friendly voice. He brings the hearing to order. He begins by saying that the process is broken: “I believe we need a fresh start in the United States Senate. And I hope that fresh start will begin today.” Feingold and Kennedy are seated to the left of Cornyn. Feingold smiles at Cornyn’s remarks, while Kennedy studies his notes intently. Cornyn continues, “This week the Senate will mark a rather dismal anniversary. Two years have passed since President Bush submitted his first class of nominees, and many of those have yet to have a vote.” Cornyn argues that supermajority rules—because they are contrary to the principle of majority rule—must be expressly stated in the Constitution. But what about the filibuster? Properly used, Cornyn continues, the filibuster can be a good thing, but the current filibusters of Estrada and Owen are an abuse.
    The Fortas Episode And now Cornyn turns to the filibuster of Abe Fortas. This is clearly the important precedent. Why aren’t the filibusters of Estrada and Owen simply a repeat of the Fortas episode? Cornyn answers that the filibuster of Fortas can be distinguished on two grounds: (1) it was bipartisan, (2) there was never a majority of the Senate that voted in favor of cloture.
    Feingold’s Turn Senator Feingold moves pass the pleasantries and acknowledges that the tempers are short and nerves raw because of the confirmation wars. Feingold argues that the confirmation wars are just politics and are not of constitutional dimension. He recites the list of Republican filibusters of various Presidential nominees—the small number where the nomination was defeated and the large number where a cloture vote was forced. And Feingold argues that the solution is for the President to send “moderate” and not “extreme” candidates to the Senate.
    And Now Ted Kennedy Has The Floor And he is, of course, already a figure of historic importance. He begins his remarks with history. The Randolph plan provided that the Senate would appoint judges. The alternative, sole Presidential power, found to support. Madison offered a motion to give the Senate the sole power to appoint judges, and this time the motion was adopted. The issue went back and forth. “Not until the final days of the convention was the President given the power to nominate the judges.” Kennedy’s voice becomes very loud now: “The debates make clear that the Senate would have a central role in the selection of judges.” The founders did not, Kennedy concludes, want the Senate to be a mere rubber stamp. “Our earliest predecessors rejected a rule that provided for motions to close debate—any motion to close debate. For 111 years, unanimous consent was required to close debate.” We are now in a situation where the President has demonstrated that he will appoint judges who share the administration’s right wing ideology. The President has no mandate.” Kennedy puts his glasses down. His voice grows softer. He says that he is eager to work with his colleagues to improve the process.
    Senator Schumer Takes the Floor “Where is the crisis?” Schumer asks? “Of 123 judges that have been brought to the floor, 121 have been approved. I’ve voted for 113 of 120. This idea of obstruction is taking language and twisting it.” It is not the first filibuster, Schumer, argued. It is just the first successful filibuster. “Let’s go to the Constitution itself. I’ve never heard it suggested that the filibuster is unconstitutional. We are the ‘cooling saucer’ for ideas hot from the House. Schumer holds up a copy of the Constitution. There is nothing in here about filibusters. Schumer raises his voice: “My fellow New Yorker Alexander Hamilton was concerned about mobocracy.” When you read the debates of the constitutional convention, you find that the framers leaned to the supremacy of the legislative branch. Now Schumer refers to his op/ed piece on the role of ideology in judicial selection. His says judges should possess “legal excellence, moderation, and diversity.” On one and three, says Schumer, President Bush has done an excellent job. If you think ideology should not play a role, let’s look to history. In 1795, President Adams nominated Rutledge criticized the Jay treaty. Schumer says, “It was the Jay treaty that caused them to vote the Rutledge nomination down, 14-10. A majority of them were founding fathers.” The Senators of the first Congress made clear that political views were an appropriate part of the process. More recently, Schumer argues, ideology became less important, during the Truman and Eisenhower administrations. Then came the Warren Court and conservatives criticized its decisions. But in the Nixon administration and after, ideology began to become more important. Although the official reasons for voting against nominees might be that they smoked marijuana, under the table it was all ideology. “Clarence Thomas should have been debated strictly on the basis of ideology.” Schumer says that he began arguing to his colleagues that ideology should be brought out in the open. Yes, we are in deadlock, but this was brought on by the President who has chosen to nominate candidates in the mold of Scalia and Thomas. “Clinton did not do that.” Bush’s nominees have been hugely ideological. It was when Miguel Estrada refused to answer questions, that is when the Democratic caucus got together and said, “This is enough of this.” Estrada invoked the 5th (Canon Five, that is), and the Democrats said, “Enough.” And now there is a very dramatic moment. You can hear the emotion in Schumer’s voice as he says, “We are deadlocked. We are deadlocked. The deadlock will remain.” Senator Schumer argues that the Republican plans would require the Democrats to waive a white flag—unilateral disarmament. Senator Schumer then reviewed his plan—bipartisan nominating commissions. Everyone in the room knows that this plan--which would take the appointments power away from the President--is D.O.A.
    The White House Weighs In Senator Cornyn was just handed a statement from the White House. He reads a bit, which predictably says that the Senate should vote on the President’s nominees. Throughout the afternoon, the Executive Branch is the dog that didn't bark. It is almost as if the President weren't involved in the issue.
    Senator Spector And now Senator Spector takes the witness chair. His voice is clear, slow, and deliberate. “I attribute the bickering to both parties,” says Spector, reciting the history from Reagan, George H.W. Bush, and Clinton. “This is the first time that I’ve been on this side of table since 1966, he says, and that was before Senator Hatch was here. This draws a smile from Hatch. From 1995 to 2000, many worthy nominees were not confirmed. It was a very contentious time. When the Democrats took back over, it was “payback time. And the payback occurred. And it was exacerbated. The table stakes were raised very seriously when we had the filibuster for the inferior courts. The only occasion before was Fortas, which was bipartisan involved the issue of integrity.” The war has been going on for a very long time, and it is time to restore the status quo bellum—before the war started.” Now Senator Spector talks about his proposal that judicial nominees ought to go the floor, even if voted down in Committee—if the vote was along strict party lines. “When we deviate from existing principles,” says Spector, “we do so at our peril. There is not doubt that the partisanship is at a very very high pitch.” Spector says that he puts his votes where his mouth is—he worked for Democratic nominees, such as Bill Lan Lee. Now he begins to speak about the Clarence Thomas case. That was very difficult, “but there was no filibuster. So it is a little hard to see why we have come to a filibuster on Miguel Estrada—who is superbly qualified.” And Owen—in a different era there would never have been a serious challenge to her nomination. And there are in the wings some “nuclear proposals.” One line of exacerbation begets another. “It is my hope that perhaps the time will be right in 2004, when there is some uncertainty as to who the next President will be” to create a new system. Does Spector believe this is possible or is he just posturing? He leaves as he entered, a quixotic figure.
    Senator Miller’s Proposal Miller isn’t at the hearing, but Cornyn discusses his proposal, which provides for a graduated decreasing vote threshold for cloture—60 votes on the first cloture motion, then 57, and so forth until it is 51. This proposal was actually first made by Democrats Harkin and Lieberman several years ago. The Miller plan sinks out of sight--we do not hear about it again.
    John Eastman The drama drains out of the hearing. We are back to the routine. Professor Eastman (Chapman) relates some of the history of the filibuster—which he argues has been less public than it should be. He is not against the filibuster, per se, but there is a distinction between the use of filibuster to enhance debate as opposed to abuse of the filibuster to block action. The use of the filibuster in the judicial confirmation process is different than in the legislative context, and the Senate should consider modifying Rule 22 to limit the filibuster. He then argues that filibustering such a rule change is unconstitutional. This is all quite rushed—the witnesses have only five minutes. Finally, Eastman argues that Presidential appointment is the most effective check on the power of the judiciary.
    Bruce Fein Fein starts with the hot tamale—the anticipated vacancies on the Supreme Court. Hen then argues that long historical practice does not settle constitutional questions—citing, for example, Erie R.R. v. Thompson. And on moderation, Fein says, “Moderation is in the eyes of the beholder.” Fein cites the opposition to the nomination of Louis Brandeis, who was opposed as a radical. Fein then says the constitutionality of the filibuster should be treated differently for judicial nominations that for other reasons. Oops, time is up, just as Fein is about to discuss Estrada and Owen.
    Michael Gerhardt Gerhardt is, of course, the author of The Federal Appointments Process. Gerhardt focuses on the constitutionality of the filibuster. The appointments clause sets forth the necessary conditions for judicial confirmation. It says nothing about the specific procedures used. Gerhardt argues that the argument that the advice and consent clause makes filibusters unconstitutional would lead to the consequence that every nomination should come to a floor vote—contrary to the settled practice of the Senate.
    Marcia Greenberger Greenberger says that filibuster is not a problem—it is simply advice and consent. The problem is the President’s nominees. Instead of coming up with consensus nominees, the President is coming up with candidates with extreme views. In the case of Priscilla Owen, her record has shown her position in one case constituted an “unconscionable act” obstructing the right to choice. She went on to make sound bite sized indictments of several controversial nominees. Greenberger is almost out of control--several times during the hearing she interrputs Senator Cornyn--who pretends this breach of etiquette has not occurred. Whether she knows it or not, her anger is palpable.
    Doug Kmiec Kmiec is calm and impressive. He is a presence and the room perks up as he speaks. Kmiec says there are four issues: (1) It is constitutionally appropriate to consider ideology in the process; there is no legal barrier to consideration of ideology. Kmiec says let’s put that aside. (2) It will not help to resolve the confirmation wars to debate the nominees. (3) Is the filibuster of judicial nominees itself constitutional? (4) Is the entrenchment of the filibuster rule constitutional. Kmiec notes that Senate Rule amendments require 67 votes—thus entrenching the filibuster. (He has clearly made a tactical mistake--with only five minutes, he should have gone straight to issue 4.) Kmiec note the Senate rules are carryover rules—not adopted by the current Senate, but “Every legislature possesses the same jurisdiction and power as its predecessors.” Kmiec gets lucky, and in questioning he is able to say enough about four to get his point across clearly.
    Stephen Calabresi Steve Calabresi, moving at speed, reviews the history of the filibuster—emphasizing the role John C. Calhoun played in the development of the filibuster and the role the filibuster played in the resistance of southern Senators to civil rights. Calabresi then argued that judicial filibusters are a bad idea, because: (1) they undermine the President, (2) they undermine the confirmation process, and (3) it does not serve a good purpose—given that only a single judgeship is at stake. Calabresi then argued that Rule 22 to the extent that it requires a two-thirds vote to cut off debate on a rule change is unconstitutional.
    Interlude At the end of the Panel discussion, one had the sense that most of what was said was simply beside the point. Kmiec was impressive. Calabresi and Gerhardt were scholarly, but wiht five minutes each, they couldn't get much out and they tried to get out more than they could get over. Others were in attack dog mode, and no one was paying attention.
    Some Points from the Questioning Period
      --Senator Feingold took his question time to hone in one point—that the arguments against Schumer’s filibusters are also arguments against the Republican tactics used against Clinton’s nominees.
      --Senator Cornyn asked Doug Kmiec and Steve Calabresis to further explain their arguments that Rule 22 is unconstitutional—insofar as it entrenches itself against repeal or modification by a simple majority.
      --Gerhard interjected at this point, and argued that Rule 22 was constitutional, citing the example of Sunset laws. This was followed by a good deal of back and forth on this issue.
      --Greenberger argued that respect for Rule 22 was required by the rule of law.
      --Senator Durbin made the “continuing body” argument—that the Senate never readopts its rules. He then suggested that there is no way out. The President will not surrender. And it will happen again. “We live in a closely divided nation, with a closely divided Senate, and a closely divided judiciary.”
      --Senator Feingold make a very emotional statement to the effect that Republicans and not Democrats have been extreme. Cronyn makes a plea to put the past behind the Committee. Feingold says that things cannot go forward with the correction of past wrongs.
      --Senator Schumer reentered the room toward the end of the day. And once again, the emotional level went way up. He began to focus on a comparison of the ideological extremity of Clinton nominees versus Bush nominees, arguing that Bush’s are extreme and Clinton’s were moderate.
      --Bruce Fein argued that ideological extremity is fine, citing the historical precedent of Roosevelt’s extreme new deal appointees.
      --Senator Schumer pressed the question whether filibustering judicial nominees could be distinguished from committees. Steve Calabresi then tried to discuss the difference between committees and the self-entrenchment of Rule 22. Senator Schumer then went wild, suggesting that Steve was insincere. Frankly, at this point, I think Schumer was confused. Once he understood the argument, then Schumer backed down. Doug Kmiec was the one who managed to clear this up. Greenberger jumped in at this point, but she had been inadequately briefed and started to misstate the substance of Rule 22. Read the Rules!
    Analysis: What happened at the Hearing? Here is my take:
      First, the exchange between Cornyn and Feingold at the very end was the real deal. This was raw emotion, palpable in its intensity. The hearing started out with everyone expressing a spirit of cooperation, but Feingold in the end made it clear that there would be no fresh start.
      Second, I think the most important testimony came from Doug Kmiec and Steve Calabresi. Both of them focused on Rule 22. They both argued that Rule 22 is unconstitutional to the extent that it entrenches the filibuster rule. They both argued that the cloture rule can be modified by simple majority vote. Why did these emphasize this? The reason is obvious. There is tremendous frustration within the Majority on the Judiciary Committee. The question is, “What can the Majority do?” The recess appointments clause is off the table as far as the Senate Majority is concerned. That ball is in the President’s court. So the Senate Majority has only a few options. Here are two:
        Option One: 24/7: The Majority can try to break the filibuster by going 24/7. But this tactic never works, for reasons I explain in this post.
        Option Two: Amend the Cloture Rule: The Majority can amend the cloture rule to permit debate on a judicial nomination to be cut off with a simple majority.
      So what about Option Two? Is it a serious proposal or is it a mere threat? If the Majority did attempt Option Two how would the Democrats respond? And beyond the short run impact, what would be the impact of Option Two in the long run? My next post on this topic will deal with these questions. Tune in Tomorrow. Same Bat Time. Same Bat Channel.

How Appealing Is One Break out the cake and candles! Get out the video cam! Howard Bashman's wonderful How Appealing is one year old today!

Filibusters, Blueslipping, and the Advice & Consent Clause Here is the letter I sent to the Senate Judicary Committee in connection with their hearings today:
    Dear Senator Cornyn:
    I am writing with respect to the issues to be raised at the Hearings on Judicial Nominations, Filibusters, and the Constitution: When a majority is denied its right to consent, set for hearing on Tuesday, May 6, 2003 at 2:30 p.m. I am a Professor of Law at the University of San Diego, and have taught law for eighteen years, variously at Boston University, Loyola Marymount University, and the University of Southern California as well as in my current capacity at the University of San Diego. I have published more than 35 scholarly articles and two legal treatises, and I am widely recognized as an expert in constitutional law and theory. I approach this issue without any partisan agenda; I hold no brief for or against any of the President’s nominees for judicial office. Rather, I write in support of a rededication to the rule of law.
    I write out of concern for the downward spiral of politicization that has characterized the recent history of nominating and confirming candidates for judicial office. No good purpose is served by assessing blame for the confirmation wars. Some might point to the defeated nomination of Abe Fortas for the position of Chief Justice as a starting point. Others would identify Democratic opposition to Clement Haynsworth, Jr. and G. Harold Carswell as escalatory moves. The defeat of Robert Bork, the confirmation hearings for Justice Clarence Thomas, the obstruction of several of President Clinton’s nominees, and the current situation, including the filibustering of Miguel Estrada and Priscilla Owen, are all part of a long and complicated story, in which there is plenty of blame, miscommunication, and misunderstanding to go around. Setting blame aside, however, one conclusion is quite clear. The judicial selection process has broken down, and things may get worse before they get better. Already there is talk of wholesale use of the President’s power to make recess appointments, and the filibustering of additional nominees. If the confirmation process has broken down when only vacancies on the District Courts and the Courts of Appeals are at stake, how will things go when vacancies on the Supreme Court of the United States are at stake?
    What is the constitutional responsibility of the Senate with respect to advice and consent? The United States Constitution Article II, Section 2, Clause 2, provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” The phrase “advice and consent” is borrowed from the laws of Great Britain where it was used to describe the consultative relationship between Crown and Privy Council. It is still used today in the law of the United Kingdom and of several commonwealth nations. The original plan for the Senate’s role in appointments was for the Senate to act in an executive role—as the President’s council of state.
    In this regard, it is instructive to consider President George Washington’s view of the proper mode of interaction between President and Senate on appointments matters. President Washington wrote:
      The Senate when these powers are exercised, is evidently a Council only to the President, however [necessary] its concurrence may be to his Acts. It seems incident to this relation between them, that not only the time but the place and manner of consultation should be with the President. It is probable that the place may vary. The indisposition or inclination of the President may require, that the Senate should be summoned to the President's House. Whenever the Government shall have buildings of its own, an executive Chamber will no doubt be provided, where the Senate will generally attend the President. It is not impossible that the place may be made to depend in some degree on the nature of the business. In the appointment to offices, the agency of the Senate is purely executive, and they may be summoned to the President.
    The modern practice, of course, has turned the original understanding topsy turvy. When the Constitution was adopted, it was contemplated that the President might summon the Senate to the White House, where acting as his privy council, they would be required to give advice and consent on his schedule. Today, one individual Senator, by the exercise of Senatorial privilege, may withhold from the President the advice and consent of the entire Senate. This is surely contrary to the spirit of the Constitution.
    Make no mistake. I do not argue for a return to President Washington’s interpretation of the advice and consent clause. History has forged the Senate into the vibrant institution it is today, and no one would wish the clock rolled back to 1789. Nonetheless, President Washington’s understanding of the proper role of the Senate is relevant today. Every member of the Senate swears an oath solemnly swearing to “support and defend the Constitution of the United States.” When the Senate orders its internal procedures and when individual Senators discharge their duties upon the floor of the Senate Chamber, their actions are not subject to judicial review. The Senate has the sole power to adopt its own rules. Individual Senators have the sole responsibility to discharge their office in accord with their oath. But the absence of judicial review does not imply a constitutional vacuum. The Senate must review its own rules for their constitutionality. Individual Senators must review their own actions in light of the Oath they take to uphold the Constitution.
    So the question that the Senate should address at these hearings is whether the withholding of advice and consent from the President for a protracted period—in some cases, for more than two years—comports with the United States Constitution. This is not a difficult question. If Senators take their oaths seriously, then they must ask themselves, does the Constitution impose upon us any affirmative duties in consequence of our constitutional role in advice and consent? Once asked, the question answers itself. Senators have a duty to give advice and then to either grant or withhold consent. This is an obvious and direct consequence of the language of Article II, Section 2, Clause 2. This question leads to another. Given that the Senate has an affirmative obligation to give advice and consent, is it consistent with that obligation for the Senate to refuse to act on the President’s judicial nominations for an indefinite period, waiting until after the President leaves office to fulfill their constitutional duty? Again, the question answers itself. The constitutional duty to give advice and consent cannot be fulfilled if the Senate were to wait until the President leaves office to give him advice and either grant or withhold consent. And this question leads naturally to another. Given that the constitutional duty to give advice and consent must be fulfilled in a timely fashion, may the Senate structure its internal rules so as to give an individual Senator or group of Senators to power to delay advice and consent indefinitely? And for a third time, the question answers itself. If there is a duty to give advice and consent in a timely fashion, it is clearly inconsistent with that duty for the Senate to grant to individual members the power to delay advice and consent indefinitely. From the constitutional duty of advice and consent, it follows that the Senate has a duty to act on the President’s judicial nominations in a reasonable and timely fashion.
    The Senate and individual Senators have an obligation to uphold the Constitution of the United States. Because the internal rules of the Senate are not subject to judicial review, the Senate itself must review its rules for their constitutionality. A rule of the Senate that permits individual Senators—by exercise of Senatorial privilege or prerogative—to delay indefinitely advice and consent is unconstitutional. Although no Court may so hold, the Senate itself has an obligation to review its procedures for their constitutionality. If the Senate finds that it is not in compliance with the Constitution, it has a constitutional obligation to correct its procedures.
    What does this mean in practical terms? It means that the Senate has an obligation to give the President advice and consent on his nominees for judicial office in a timely fashion. The Constitution does not prescribe a period of days in which the Senate must act. President Washington thought that the President could set the timetable, summoning the Senate to his office at the time of his choosing. A more reasonable view is that the Senate should act in a reasonable time. At the outer limit, this means that the Senate should give advice and either consent to a nomination or vote it down within the Session during which the nomination was made—excepting, of course, nominations made too close to the end of the session for timely action. The delay of a nomination for a period exceeding one Session is clearly inconsistent with the Senate’s duty to give timely advice and consent. Of course, it is up to the Senate to determine what rule is most practicable within the outer boundaries of its constitutional duty. The Senate might adopt a rule calling for action within a period of days (sixty or ninety) or before the end of the Session, whichever comes first. Or it might adopt some other reasonable rule.
    Having established the constitutional duty of the Senate, I should perhaps address an obvious question: is not the exposition of the Senate’s constitutional obligations an idle exercise, given that no other branch of government or House of Congress has the power to compel the Senate to act constitutionally? This is a question of no small moment, and the members of the Senate are in a far better position to answer this question than am I. There is, however, one observation that I can and should make. The President is not without remedy if the Senate does not fulfill its constitutional responsibility. Article II, Section 2, Clause 3 of the Constitution 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.” Starting with George Washington, Presidents have made recess appointments to the judiciary, including the Supreme Court. In modern times, Chief Justice Earl Warren and Justice William Brennan first assumed their respective offices as recess appointees. For more than one-hundred years, the fixed practice of the President, accepted by the Congress, has been to make recess appointments for vacancies that begin while the Senate is in Session but continue to “happen” during a recess. If the Senate does not fulfill its constitutional duty to provide advice and consent in a reasonable and timely fashion, the President has the option to make recess appointments to allow the continuing functioning of the judicial branch. It would not be wise for a President to take this course lightly. But if the Senate demonstrates a persistent disregard for its constitutional duty to give its advice and consent in a reasonable and timely fashion, the President may have no other option. The President is not obligated to cower before a minority of the Senate and nominate candidates of their choosing.
    This brings me to my final topic. The confirmation wars represent a constitutional failure, but they are symptomatic of a greater ill. The downward spiral of politicization that has characterized the judicial selection process is part of a larger problem—the politicization of the judicial branch itself. When judges decide on the basis of the law and eschew decisions based in partisan politics and personal ideological preferences, then confirmation is not a difficult business. If the President nominates judges who possess the judicial virtues—judicial intelligence and wisdom, judicial courage and temperament, and above all justice—then confirmation should follow as a matter of course. But it has become apparent that the federal bench itself has become politicized. When federal judges decide cases politically, then it is inevitable that the judicial selection process will be politicized. Presidents of both parties naturally come to see the power to nominate Supreme Court Justices as a great political prize. Senators just as naturally come to believe that blocking such judicial nominees is ordinary politics. And this tendency is self-reinforcing. The more political the selection process, the more political the judges who endure that process.
    In the long run, ending the confirmation wars will require more than a change in the rules of the Senate. In the long run, ending the confirmation wars will require a rededication to the value of the rule of law. If judges are selected for their politics, then confirmation will be political. If judges are selected for their dedication to the rule of law, then confirmation can be relatively nonpartisan. Indeed, some partisanship is healthy for the confirmation process, as the party out of the Presidency tests and probes judicial nominees for defects and weaknesses. But healthy partisanship does not require confirmation wars.
    Sincerely yours, Lawrence B. Solum

Blogging from the Senate I will be blogging later today from the Hearing before the Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Property Rights United States Senate on “Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent.” The witness list includes Senator Arlen Specter, Senator Charles Schumer, Senator Zell Miller, Steven Calabresi (Northwestern), John Eastman (Chapman), Bruce Fein (Fein & Fein), Michael Gerhardt (William & Mary), Marcia Greenberger (National Women’s Law Center) and Doug Kmiec (Catholic University).

Daniel Faber's New Book, Lincoln's Constitution Dan Farber (who is so smart and productive that it is scary) has a new book out. Here's an abstract:
    The Civil War raised fundamental issues about the American constitutional system. The first half of this book probes the disputes about states' rights that led up to the Civil War. The discussion begins with early understandings of sovereignty, then considers the Marshall Court and the nullification movement, and ends with a discussion of the constitutional and moral legitimacy of secession. The second half of the book focuses on the difficult constitutional problems that arose during the war itself, including Lincoln's aggressive use of executive power, civil liberties issues such as the use of military tribunals, and the general stress placed on the rule of law by wartime conditions. Much of the book is purely historical, but it also considers how Lincoln and his era can illuminate – and in turn be illuminated by – modern constitutional debates.
The publisher is the University of Chicago Press.

Download of the Day Department Victor Fleischer (Columbia) and Jeffrey Kahn (Santa Clara) have uploaed A Taxing Blog: The Uneasy Case for Blogging Taxation. Uneasy? Pshaw!

New Papers on the Web Here is today's roundup:

Workshops & Lectures Today Here is the roundup:
    At Oxord, the H.L.A. Hart Memorial Lecture is today. This year Richard Epstein presents The Not So Minimum Content of Natural Law.
    At the Cambridge Forum for Legal and Political Philosophy, Richard Rorty presents Is Moral Theory Trapped Between Kant and Darwin?.
    At the University of Chicago's Olin series, Joe Bankman (Stanford) presents Who Should Bear Tax Compliance Costs? Here is a taste from the introductiohn:
      Regulation is expensive. The federal income tax comprises one of the most extensive forms of government regulation, and one of the most expensive. Much of this expense is recognized in the form of reduced work effort or saving. Economic models that evaluate fundamental tax reform proposals often focus exclusively on these two forms of tax-induced changes in behavior, ignoring compliance compliance costs.1 These costs, however, are quite significant. They include the time spent filing one’s tax return and maintaining records related to that filing; the time spent learning and negotiating the rules when engaged in various forms of tax planning; and the amounts paid to third parties, such as accountants, lawyers, financial planners or software providers, to that same end. They also include the costs the government incurs to promulgate and enforce the law.

Monday, May 05, 2003
New on SSRN Here is the roundup of recent papers from SSRN:
    Joanna Shepherd (Clemson, Economics) posts Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment. This paper sounds quite interesting. Here is the abstract:
      I examine two important questions in the capital punishment literature: what kinds of murders are deterred and what effect the length of the death row wait has on deterrence? To answer these questions, I analyze data unused in the capital punishment literature: monthly murder and execution data. If capital punishment's deterrent impact is short-lived, as some researchers have suggested, then monthly data should measure deterrence better than the annual data of most papers. Results from least squares and negative binomial estimations indicate that capital punishment does deter: each execution results in, on average, five fewer murders. In addition, capital punishment deters all kinds of murders, even crimes of passion and murders by intimates. Moreover, murders of both black and white victims decrease after executions. This suggests that, even if the application of capital punishment is racist, the benefits of capital punishment are not. However, longer waits on death row before execution lessen the deterrence. Specifically, one less murder is committed for every four-and-a-half month reduction in death row waits. Thus, recent legislation to shorten the wait on death row should strengthen capital punishment's deterrent effect.
    Simon Evenett (World Trade Institute ) posts Do All Networks Facilitate International Commerce? US Law Firms and the International Market for Corporate Control. From the abstract:
      This paper estimates the effects of several American law firms' international networks of offices on the total value of overseas mergers and acquisitions (M&A) by US corporations. Nowadays many nations can review proposed mergers and US law firms help clients overcome such regulatory hurdles, effectively greasing the market for corporate control. However, they can also oppose transactions that are inimical to their clients' interests. I present evidence that suggests that Baker & McKenzie - the US law firm with the most overseas offices - has facilitated such transactions, whereas the combined effect of the next five largest American law firms has tended to reduce such M&A.
    Shann Turnbull (Macquarie University, Sydney ) uploads A New Way to Govern: Because 'World Best Practices' are the Problem Not the Solution. From the abstract:
      This paper was presented to generate debate about proposals developed by a 'Corporate Governance Council' set up by the Australian Stock Exchange (ASX) to advise on new guidelines. The paper identifies the invalidity of the assumptions implicit in the Sarbanes-Oxley Act in the US and the recommendations of the Higgs report in the UK into the role of non-executive directors. The paper describes how these assumptions lack validity in regards to the ability of non-executives directors, who meet the highest standards of independence, being able to protect themselves, the company, shareholders, or other stakeholders. Likewise, the invalidity of the assumption that an auditor can be independent when paid by those they audit. Another fundamental flaw in unitary governance is that the information on which directors rely for monitoring and evaluating the business and its management is provided by management. This widespread arrangement is inconsistent with directors performing their fiduciary role with due diligence and vigilance. A contributing factor to the lack of shareholder engagement to control boards is explained by the unethical but legal practice of a director controlling the process of a board being made accountable by chairing shareholder meetings. Lack of shareholder regulation in Australia also arises from corporations having the power to veto pension fund management mandates and a bank based oligarchy of corporate fund management and influence. While Australia leads the world with its requirement that corporations continuously disclose price sensitive information, the identity of share traders and shareholders, that can also be price sensitive information, is not required to be disclosed at the time of a trade, and this protect and so facilitates insider trading. Ways of ameliorating all these problems are suggested in the paper based on the analysis and recommendations presented in A New Way to Govern: Organisations and Society after Enron archived at

Workshop Today At Oxford's Seminars on Moral Philosophy, Nathan Holcomb (Oxford), 'Regarding oneself as free'.

Sunday, May 04, 2003
I'm gonna get high, high, high, or deconstructing the up-down distinction revisited. "Danger, Danger, Danger," lights flash, and the robot's arms rotate wildly, "Danger, Will Robinson!" This is a warning. It may be hazardous to read beyond this point. The remainder of this post is for mature readers only. If you are a law student or judicial clerk, please stop now. I mean it:

    The Blame Game Jack Balkin has been writing about the confirmation wars on Balkinization. He recently has been in an exchange with Juan Non-Volokh that plays the blame game. Who is at fault for the blueslipping, filibustering, and character assasination? Jack argues that the Democrats are not at fault. Juan acknowledges fault on both sides, but says that the Republicans are not worse than the Democrats. Before I go any further, I want to suggest that this is not a productive conversation--unless you would like to encourage the downward spiral of politicization that has characterized the judicial nomination and confirmation process, for decades really, but especially for the last ten years or so. But then Jack made a most extraordinary move. A remarkable move. A stunning move. But an entirely predictable move. Balkin argued that the Democrats were justified in escalating the confirmation wars because of Bush v. Gore. Predictable, because surely we all know that Bush v. Gore was lurking in the background. Stunning, because it was combined with arguments that suggested that the Democrats weren't escalating at all. Bush v. Gore was an unprincipled political decision. George W. Bush was not really elected President. Bush, therefore, lacks legitimate authority to appoint judges. And therefore Democratic obstruction of the confirmation process is justified.
    The Up Down Distinction Here is where it gets interesting. Juan Non-Volokh responded to Jack Balkin's Bush v. Gore argument as follows:
      [M]any of those on the right (myself included) see Bush v. Gore as the Warren/Brennan legacy coming home to roost. For decades, liberals generally supported an activist court that discovered constitutionally protected rights and discarded traditional restraints on an activist judiciary (e.g. much of the political question doctrine, as in Baker v. Carr). In the view of many on the right, the Constitution was "taken over by ideological extremists" during this period. (Nonetheless, the response was not to shut down President Carter's nominees, but to wait until more conservative judges could be nominated by a sympathetic president.) Therefore, when we hear Balkin or anyone else inveigh against Bush v. Gore, our gut reaction is to say "Well now you know how we felt about [insert Roe, Baker, Miranda, or some other outrageous case here]." So while I agree with Balkin that those on the right should try and appreciate the outrage of left over the election, I would also suggest that those on the left should try and appreciate that the right feels the left is simply reaping what it sowed.
    And Balkin responds by invoking the high-low distinction, which he and Sandy Levinson stated as follows:
      We should make a distinction between two kinds of politics—“high politics,” which involves struggles over competing values and ideologies, and “low politics,” which involves struggles over which group or party will hold power.
    This is a very interesting move, and an attempt to think carefully about it will occupy the rest of this post. But, I have noticed that several law students and judicial clerks are still reading this post. You need to study for finals. You have opinions to write. You don't have time for this. Stop reading now. What do we think of the high versus low distinction? Why are are high politics legitimate and low politics illegitimate? Why are judicial struggles over values and ideologies appropriate and judicial struggles over which group will hold power inappropriate? Let's think about what this could mean . . .
    The Political Questions Doctrine Well, here's one thing it can't mean. It can't mean that the Court should stay out of politics. Because staying out of politics altogether would mean overruling Baker v. Carr and one person, one vote. Because staying out of politics altogether would mean abstaining from free speech cases if an election were involved. Balkin is surely not arguing for the old-fashioned stay-out-of-politics version of the political question doctrine.
    High-High and Low-High And here's another thing. The high/low distinction isn't fine grained enough. We need a more sensitive typology. Because Supreme Court opinions aren't just about "values and ideologies," they are about results. Supreme Court opinions change the world. And therefore, there are two different kinds of high politics. There is the kind where the constitutional values that you truly believe in support the results that you want--let's call that kind of high politics high-high politics. And there is the situation where the result that you want would require you to articulate a principle that you generally oppose. Let's call that low-high politics.
    An Example: Freedom of Speech And let me give an example, so that all of this is clear. Suppose that you generally believe in the freedom of speech. You believe in something like the Brandeis position in Whitney. You believe that dangerous speech should be allowed, so long as there is time for "more speech." Now, there will be cases where that constitutional value will produce results that you like. For example, a group of war protestors is demonstrating and they are using powerful rhetoric that includes threats of violence, but there is time for more speech--the harm is not imminent. So as a judge, you could write a high-high opinion. You deploy the principle you believe in to get the result you want. But now suppose that you are faced with a different case. You have a hate speech regulation in front of you. Your usual principle would result in deciding this case against the hate speech regulation, but you don't want that outcome. And so you need to use a different principle. One you usually don't like. You say that hate speech produces "direct injury," and uphold the regulation, and you write a low-high opinion.
    High-Low and Low-Low And the same thing goes for low politics. Judges have to decide election law cases. When a judge decides an election law case that favor's the judge's own party but does so on the basis of a general constitutional value that the judge would apply even if it favored the other side, the judge has engaged in high-low politics. Surely, there's nothing wrong with that. Judges more or less have to do that. It comes with the territory. Elections involve legal issues, and therefore judges must decide election law cases. And when they do, sometimes thier decisions will favor the party that they favor. So not all low politics is a bad thing: high-low politics is just fine. What is objectionable is low-low politics. A decision is . . . I know you are still reading. You really don't want to go any further. You won't like what comes next. How about going out for coffee? Or studying? Do something. Do anything. Just don't read any futher.
    Low-Low As I was saying, what is really objectionable is low-low politics. A decision is low-low when a judge decides for her own party on the basis of a constitutional value that she doesn't endorse as a general principle. A ha! Now, we are making progress. Everyone should agree that high-high decision-making is perfectly fine--who can fault a judge for reaching the outcome she prefers on the basis of general principles she endorses. Brown v. Board was high-high. And everyone can agree that making a decision that favors one's own party on the basis of constitutional values one generally does not endorse is a very bad thing. Bush v. Gore was low-low. High-high = go go. Low-low = no no. What about low-high and high-low? I don't know! Maybe, go slow? Maybe, no go?
    But Wait! There's More . . . At this point, we have been looking at two dimensions of judicial decision making. The first dimension is constitutional value and ideology. The second dimension is partisan political advantage. But there is a third dimension. Sometimes one's ideology and values are supported by the law--by the text, history, and precedents. Sometimes one's ideology is opposed to those things. So we need to add yet a third dimension to our typology. Here we go.
    High High High and Low Low Low So there are actually two kinds of high high decisions. There are high high high decisions, where the law supports the constitutional value that leads to the outcome you favor. But there are also low high high decisions, those where you must bend the law to get to the values that lead to the results that you favor. And likewise, there are two kinds of low low decisions. There are high low low decisions--those where the law supports the value you don't endorse that leads to an outcome that favors your own party. Actually, high low low doesn't sound quite so bad. But that brings us to the really important category. This is where we are going to get to the "cash value" of all of these conceptual distinctions. Don't think I don't know that you are still here. But now I'm really serious. You don't want to read what comes next. It will be distracting, and you may not sleep at night. You need your rest. This time I really mean it. Stop reading now. Or else!
    Low Low Low As I was saying, the really important category is low low low politics. Low low low is when a judge decides contrary to the law and on the basis of values that the judge doesn't believe in, in order to reach a result that favors the judge's own party. The problem with Bush v. Gore is that it was low low low. Those judges were acting contrary to the law; they were acting on the basis of an equal protection theory they didn't believe in; and they did those things in order to favor their own party. That was bad. Real bad. And now, we have a set of distinctions that we can work with. High high high = go go go. Low low low = no no no. Low high high or low low high or low high low or high low high or high high low? It's hard to say. I just don't know. Maybe, go go slow? Maybe, no no go?
    Oops, I Forgot We Were Talking About Law How embarassing! Especially, with me being a law professor and all. What a bunch of absolute nonsense I have been spouting. We've just built a nice three-dimensional binary matrix, but only one of the binary pairs is worth the binary code its written in. What matters about judicial decisions in election law cases is not whether the judge was appointed by the winners or the losers. What matters about about judicial decisions in election law cases is not whether the judge believes in the ideology or value that supports her decision. Only one thing matters. What matters is whether the decision was made on the basis of the law. An ideologically consistent decision that runs contrary to the law is not somehow made virtuous by the fact that it disfavors the party of the judge who rendered it. An ideologically inconsistent decision that conforms to the law is not somehow made vicious by the fact that it favors the party of the judge who rendered it. The correct-making feature of judicial decisions is lawfulness.
    Back to Balkin Balkin's move in response to Non-Volokh was to invoke the distinction between high politics and low politics. But that was the conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics. And that leads to me to one more thing. Maybe the most important thing.
    I want to get high high high Don't we all? I want judges to make decisions that are legally correct, that favor my ideology, and that lead to the outcomes I want. I wish every judge would get high high high. But here's the deal. That's not the way that law works. Not all constitutional stories have happy endings. A whole lot of the time, the legally correct decision is inconsistent with my values or leads to a result that I don't like. I wish it were otherwise, but it's not. There are two responses to this tragic fact. You can try to wish it away. Or you can learn to live with it.
    I told you that you wouldn't like this part.
    Now you have to learn to live with it.

    Post Script: Jack Balkin responds on Balkinization. Jack's response is thoughtful and eloquent. I will post a rejoinder sometime tomorrow. In the meantime, if you haven't already done so, read the debate that runs back and forth:

Saturday, May 03, 2003
Update on Filibusters I reported recently on an Atlanta Journal Constitution story, which stated:
    Republicans have allowed other Senate business to continue while the filibusters percolate, but that is going to change, [Senator] Hutchison said. "We will force a real filibuster," she said. "We do not have a time yet." The tactic would be a gamble, forcing a parade of Democrats to continue speaking against the two nominees whenever the Senate is in session, effectively shutting down the chamber's business until one side runs out of patience and folds.
This is a bit misleading it turns out for reasons that are obvious once you start thinking about them. Suppose the Republicans try to break the Estrada filibuster by forcing it to go 24/7. Now imagine that it is 11 p.m. In order to muster a quorum, pretty much the whole Republican caucus has to be there. If they leave, the Democrats can suggest the lack of quorum and go home for the night. If they stay, then the Democrats are home sleeping while the Republicans grow progressively more tired and cranky. The basic point is that the filibustering party has a huge tactical advantage. Here is the analysis of Stan Bach of the Congressional Research Service (Filibusters and Cloture in the Senate):
    “… late-night or all-night sessions put as much or more of a burden on the proponents of the question being debated than on its opponents. The Senators participating in the filibuster need only ensure that at least one of their number always is present on the floor to speak. The proponents of the question, however, need to ensure that a majority of the Senate is present or at least available to respond to a quorum call or roll call vote. . . . This works to the advantage of the filibustering Senators, so the burden rests on their opponents to ensure that the constitutional quorum requirement always can be met.
Well, now we know why the 24/7 tactic is so rare. In fact, I'm told, no modern filibuster has been broken by the 24/7 tactic.

Fractured Opinions and the Virtue of Justice What are we to make of McConnell v. FEC? For analysis of the opinions, you should be very cautious about what the mainstream media is reporting. There simply hasn't been enough time to produce really good analysis. The first source of high quality analysis will be Rick Hasen's Election Law Blog. I posted earlier today on McConnell. In this post, I develop in greater depth a theme that was lurking in my earlier post. My reaction is not to the substance of the opinions, but rather goes to the style, form, and jurisprudential orienation of the opinions produced by the three judge panel. When three judges write 1,638 pages of opinions and feel impelled to produce a per curiam chart that outlines their decision, you know that something has gone badly wrong. Of course, this is not the first court to produce a badly fractured opinion. The Supreme Court has been issuing such opinions on a fairly regular basis for at least two or three decades. But why does this happen? And why has it happened more in the contemporary period? Let's begin with . . .
    Some Historical and Comparative Perspective Fractured opinions are a bad thing, but they are not quite as bad as they seem at first appearance. We should remember that in other common-law systems multiple opinions from appellate courts are the norm and not the exception. Historically, the Opinion of the Court is the product of John Marshall's tenure as Chief. Under Chief Justice Jay, the U.S. Supreme Court followed the English model. But . . .
    The Meaning of Fractured Opinions in the American Context But fractured opinions have a different meaning given our practice. Our practice is that the Opinion of the Court is the authoritative document that provides the decisional law which guides lower courts and those whose actions are guided by the law. Given that practice fractured opinions produce unpredictability and uncertainty--they undermine the rule of law. Of course, in theory it is possible to determine the narrowest ratio decendi on a particular issue--and to treat that as the holding. But American judges and lawyers are unpracticed at this technique. They have grown use to the legislative style of stating holdings. And so, not unsurprisingly, they do not do well with fractured opinions. In practice, fractured opinons mean fractured law.
    Why? The Causes of Fracture What follows is at best a general speculative hypothesis. Fractured opinons have many causes--sometimes highly particularized, sometimes fitting a general pattern. Nonetheless, it is useful to make the attempt to discern general patterns. Here is the pattern that I see. The fractured opinions of American courts result from their neorealist orientation. American judges believe that the law is an instrument, to be used by judges to enact their policy preferences into law. (Of course, this statement is sweeping--not all judges fit this stereotype.) American judges are ideological. The percieve the judicial resolution of politically controversial issues as a political activity.
    But why not compromise?, you may ask. Isn't politics the art of compromise? And so it is, when political institutions are designed for compromise! But the courts are not so designed. The courts are designed for a different purpose--the resolution of controversies according to law. Legislatures can roll logs--trading this bit of pork here for that vote over there. Despite the politicization of the judiciary, American judges are not ready for this. So far as I know, there is no documented case of logrolling on the United States Supreme Court, where the judges are long-term repeat players. Judges still have the sense that it would be wrong to trade votes. "I'll give you my vote on the 11th Amendment in exchange for your vote on the Establishment clause." Without logrolling, the incentives for compromise are weak. Why should I compromise my position when I will get nothing in return? This phenomenon is exacerbated by the binary nature of many legal questions. One can't say, "OK, you think liability should exist, and I think it shouldn't. We'll compromise and create a claim that entitles plaintiffs to 46% of their damages." Moreover, at the Court of Appeals level, the judges sit in three-judge panels. Depending on the size of the circuit, the chances that these particular judges will sit together on a regular basis can be very slim indeed. The chances of cross-decision compromise are dramatically reduced given that only a single sittings worth of cases are available for horse trading. In a single sitting, it may well be the case that only one or two cases present the kind of issues that get the blood of political judges racing. Most are likely to be quite dull--implicating only the rights of the parties.
    Law's Hypocrisy Here is one way of capturing the gist of the current uneasy situation:
      Neorealist judging takes place in a twilight zone, neither openly political nor truly principled. Neorealist judges are both certain that their decisions are inherently political, and simultaneously aware that they are constrained by the trappings of the rule of law. In other words, neorealist judging is inherently hypocritical.
    The three judge panel in McConnell v. FEC was, in this sense, neither better nor worse than many neoinstrumentalist judges. They did what they thought they were supposed to do. They voted their political preferences and that produced a mess.
    Another Way of Doing Business There is, of course, another way of doing business. Judges could decide on the basis of law and make an earnest effort to put their political preferences aside. That is, the judges in McConnell v. FEC could have done their very best to decide the case before them in the way that was maximally coherent with the decisions of the Supreme Court and the Court of Appeals for the District of Columbia Circuit. And the judges in McConnell could have done their very best to make those findings of fact that were most reasonable given the record--without regard to whether those findings would have supported the outcome they preferred. You may say I'm I dreamer, but I'm not the only one. This is not pie in the sky. Neorealism is not ordained by the fabric of the universe, nor is it the logical consequence of some conceptual truth. Legal instrumentalism is not a deep feature of cognitive psychology or hardwired in the human brain. Politicized judging is not mandated by the iron laws of history. Results orientation is not the end of history--ordained by the either the mysterious unfolding of the Idea or a mindless dialectical materialism. Neorealism is a human practice--a way of doing business, the product of human choice. And there is another way of doing business . . .
    Neoformalism and the Judicial Virtues . . . there is another way of doing business. Judges can decide according to law--if they want to. Judges can make findings of fact that are in accord with the facts--if they want to. In many legal cultures, the dominant practice of judging is much more formal than in the United States, while it others judging is even more politicized than here. How could we transform our judicial culture so as to restore the rule of law? That's a big question--far bigger than I can answer meaningfully here. But I can say that the most important step is to select judges who are committed to the rule of law. Or to put the point another way, judges should not be selected for their political ideology. Judges should be selected for their possession of the judicial virtues. What are these? Here is a short and incomplete list:
      +Judicial intelligence--judges should be smart and they should be learned in the law.
      +Judicial wisdom--judges need legal vision the ability to size up a case and see the important issue, and they need the ability to choose wisely from among the legal options available to them. Judicial wisdom is essentially phronesis, the ancient Greek for what we might call practical wisdom.
      +Judicial courage--judges need civic courage. A good judge must care more for getting it right than for the opportunity for promiton to a higher court or the rewards of lucrative practice after retirement.
      +Judicial temperment--judges should be neither too quick nor too slow to anger.
      +Justice--and most importantly, judges need the virtue of justice, the disposition to decide in accord with law and equity rather than on the basis of judges personal or political preferences.
    Unfortunately, in the current political climate, both the supporters and the opponents of nominees for judicial office seem focused more on ideology than virtue. If we select judges for their ideologies, we cannot be surprised when their decisions are political. Opinons like those rendered in McConnell are the price we pay for neorealism. Some believe this price is worth paying--that ideological judging is the path to justice. Others believe that this price must be paid--that ideological judging is inevitable. I believe neither of those things.

What Went Wrong?: McConnell v. FEC, the Politics of Judging and the Judging of Politics
    Introduction My colleague, Rick Hasen, has been laboring mightily to process the BCRA (McCain-Feingold) decision on his superb Election Law Blog. Go there now! But if you come back, read on. Whether you agree or disagree with the fractured outcome is really beside the point--the Supreme Court will control the outcome in the long run. The trial court had a job to do, and it failed to do it. The three-judge District Court did its job badly for at least three reasons: (1) the three judges produced a fractured opinion that neither guides nor persuades; (2) the three judges did little in the way of fact finding--their principal job; (3) at a more fundamental level, the outcome displays a lack of practical wisdom or phronesis--purchasing the time to write bloated opinions at the price of uncertainty for no real benefit.
    The Causes and Effects of Fractured Opinions Why do multi-judge courts in the United States produce fractured opinions? Neorealist judges want results that reflect their political ideologies. When there is political disagreement on a court, it is frequently difficult to produce a compromise. Many legal issues are binary--with few opportunities to split the difference. And with respect to lower courts, such as the special panel in McConnell v. FEC and the United States Courts of Appeals, the judges do not sit together on a regular basis, reducing the opportunities for working out systemic compromises. The effect of fractured opinions is to make the law less certain and more difficult to ascertain. Of course, in McConnell, the fracturing will have only a temporary effect--as the legal issues will all be revisited de novo in the Supreme Court.
    Fact Finding The three-judge panel evidently could not find many facts that they could agree upon. As my colleague, Rick Hasen puts it: "At the very least, at least two of the judges should have been able to make substantive factual findings to help guide the Supreme Court. Now we have a mess on both the facts and the law." Why the failure? I don't know, but I do have a guess. Once judging is politicized, fact finding easily becomes just as political as everything else. Before assuming judicial office, most judges are lawyers--accustomed to dealing with facts as an advocate. Those skills should not carry over to the role of judge, but they can carry over. It is a good bet that the judges on the McConnell panel were unwilling to support findings of fact that would undermine the outcomes they were seeking. As Rick argues, this problem would have been less severe if the case had been decided by a single judge, but in a sense, that would only have masked the problem. A single set of facts found for political purposes would, in a way, have been worse than three contradictory sets of factual conclusions. As it is, we at least know that the judges were not actually trying to find facts that accurately reflect reality. They were trying to find facts that would support the outcomes they wanted. Rick makes this point eloquently:
      Now, imagine if the BCRA would have been heard by a single judge. What would those factual findings have looked like? They might have looked like the factual findings of Judge Kollar-Kotelly, those of Judge Leon, or those of Judge Henderson. That's a big risk. If you like campaign finance regulation, you are doomed if you are before a judge like Henderson. If you take a strong first amendment free market position, you are doomed if you are before Judge Kollar-Kotelly. And if you are before Judge Leon, you might be doomed no matter which side you support.
    If Rick is right, and I would bet money that he is, then these judges simply failed to do their job with integrity.
    Practical Wisdom At yet another level, the 1,638 page opinion, the lack of factual findings, and the months of delay tell us that the three-judge panel was sorely lacking in phronesis, the Artistotelian virtue of practical wisdom. These judges simply didn't seem to see the salient features of the case they were called upon to decide. The monster opinion and the months of delay could do very little good. The Supreme Court will revisit the law de novo. The fractured opinions and the ridiculous verbosity will only reduce the efficacy of their efforts with respect to the predictability and certainty of the law. The one thing that the district court could have done would have been to lay ideology aside and to try to produce findings of fact that were accurate and politically neutral. That effort would have aided the Supreme Court in its task. The highly politicized nature of the factfinding that was done suggests that none of the findings that did manage to get the support of two judges are trust worthy. Indeed, if the real world harm generated by the panels delay were not so grave, the appropriate legal solution might be for the Supreme Court to vacate the judgment and remand for the panel to begin again.

Friday, May 02, 2003
BCRA Decision The Election Law Blog will be the place to go for the best analysis of the opinion (just issued) striking down parts of the BCRA (McCain-Feingold). Update: Rick has started to analyze the 1,638 pages of opinions & tenatative conclusions are going up on his blog. Much of the mainstream press analysis is suspect--wait until next week to form opinions unless you are going to wade through the mess yourself.

Some Correspondence About Filibusters and Recess Appointments I've recieved some interesting emails about filibuster. Update: Most recently from Marcia Oddi at the far too modestly title Indiana Law Blog pointing to a piece from Sarah Binder, then with Brookings, written in 1996 :
    More than 30 times in recent decades, majorities have written laws that severely cramp the minority's right to filibuster. The filibuster is banned on important budget and trade matters, as well as on much less visible international and domestic legislation. Senators from both parties have been willing to give up their right to debate endlessly when it seems to serve immediate and future policy interests.
And Brett Bellmore suggests a constitutional amendment that would provide for floor votes. Dylan Ramsey suggests that "one of the primary functions of the judicial branch has to be moderating the transition of one group from minority opposition to majority control," read his development of the idea here. Finally, Ed Unneland, a knowledgeable amateur historian, writes:
    I think people sometimes forget how "rough and ready" society was in the Founding period. That such a society produced documents like the Declaration of Independence, the U.S. Constitution, and the Federalist Papers makes the America of that period all the more remarkable. At the peril of lese-majeste, then, my suspicion is that people sometimes impute to that period a theoretical framework to the Constitution that wasn't on their minds at the time. Rather, they were pragmatists trying to put together structures for a place that had not been long before described as wilderness by John Locke (when he started one of his treatises with the words, "In the beginning, the world was America.").
    While the founders had rejected a standing council to the President, they wished to retain some of its features for certain powers that had been exercised by the King personally. Thus, for the treaty and the appointment powers, the President is obliged to receive the advice and consent of the Senate. This phrase, "advise and consent" is taken directly from the language of Orders in Council --- the sovereign and the privy council acting jointly. For certain purposes, but those purposes only, it seems as if the intention was that the Senate would function as the privy council to the President.
    The problem was that when President Washington went to the Senate for advice, no one seemed to know what to do. The President stood there, having read a number of proposals (I think related to relations with France), and asked "Do you advise and consent?" The Senate, having quickly come to its self-identity as a legislative body, was unable or unwilling (perhaps a mixture of both), to shift gears and act as an advisory council and after an awkward silence, someone spoke up saying that they would need to debate those matters for awhile. (It was then that Washington turned to the "principal officers of the executive departments," forming them into the Cabinet.)
    When the question of the appointment power came up, my suspicion is that the convention thought the Senate, while not being a patsy, would be reasonably agreeable to the President's wishes, as would a privy council. Thus, it was thought not to be problematic to have the President issue commissions to people the Senate was probably going to approve in any case. Also, we should remember that whoever was District Judge for New York was _the_ federal judge, and that other than the circuit-riding Supreme Court Justices, there was no one else to exercise federal judicial powers. This created a need for a fail-safe method of filling vacancies.
    In any case, these are just some first impressions in this regard. I think Washington knew full well what he was doing. Interestingly enough, Brennan was an Eisenhower recess appointment --- in the wake of which the Senate passed a sense of the Senate resolution asking Presidents not to do that again.

Farrell on the International Foundations of eCommerce Henry Farrell (Toronto, Political Science) uploads Constructing the International Foundations of E-Commerce--The EU-U.S. Safe Harbor Arrangement. Here is the abstract:
    Much recent international relations scholarship has argued that states are unable to control e-commerce, so that private actors are coming to play a dominant role. However, this body of literature fails to account for emerging 'hybrid institutions,' in which states create general frameworks of rules, which are then implemented by private actors. This article examines a prominent example of such an institution, the EU-U.S. Safe Harbor arrangement in the field of privacy, and sets out an alternative explanation of state-private actor relations in the sphere of e-commerce. It shows how Safe Harbor had its origins in efforts by the European Union (EU) andUnited States to mitigate problems of interdependence that threatened to undermine the principles of order on which their regulatory systems were based. Safe Harbor reflects neither the EU nor U.S. approach, but rather a novel blend of state and private regulation. The article demonstrates the vital role of argument and persuasion in identifying Safe Harbor as a solution, and in negotiating its particulars. It finds that conventional game theoretic accounts of bargaining are unable to explain the negotiation of Safe Harbor, and argues that constructivist approaches should pay more attention to how argument can disclose new possibilities of action.
Henry also does the excellent Farrellblogger (with Maria).

Thank You Department Thank you for all of the nice email and blogospheric recognition for my post on the constitutionality of recess appointments. How can you not be thankful for emails calling one's post "a masterpiece" and "sufficient for tenure here at [censored]." And I am sure I do not deserve the blog posts that said things like: tour de force, [i]f you read nothing else on the Web today: Be sure not to miss . . .," should be required reading for every member of the Senate, and my personal favorite, The finest post I've ever seen, period. And my thanks to Nate Oman for being so good natured about his cameo role.

New Papers on the Net Here is the roundup:

Confirmation Wars: The Filibuster
    Introduction The Democrats' most powerful weapon in the confirmation wars is the filibuster. I have to confess that I know much less about the filibuster than I ought. Here is a very good short explanation courtesy of Brandt Goldstein in Slate:
      A filibuster is allowed because the Constitution gives each house of Congress the right to "determine the Rules of its Proceedings." That means the Senate can run itself however it sees fit. With one short-lived exception, the Senate had no rule until 1917 to halt discussion on anything—reflecting the body's long-standing commitment to unlimited debate. A single senator thus had the power to hold the entire body hostage on an issue, so long as he was prepared to keep talking about it. Hence the term "filibuster," derived from the Spanish filibustero, or freebooter, meaning "pirate." (That word ultimately goes back to a pair of Dutch words that mean "free" and "booty"—which may or may not be relevant to goings-on in the Senate.)
    Is there a Republic counter move to the Democratic filbuster strategy? Rick Hasen posts on an AP report, to the effect that Republicans are considering two possible solutions to the Democratic filibuster of Owen and Estrada: (1) a change in Senate rules, and (2) a lawsuit:
      Stymied now on two of President Bush's judicial nominees, Republicans are considering an attempt to change Senate rules or suing to ban judicial filibusters, even against long odds. "It certainly could be taken to court," Senate Majority Leader Bill Frist, R-Tenn., said after Democrats on Thursday successfully blocked Texas Judge Priscilla Owen from getting a federal appeals court seat.
    How might these two options play out? Let's think about the lawsuit first.
    The Legal Option Who knows what the Courts might do these days? But I completely agree with Hasen's assessment:
      Besides the fact that a court should view this as a non-justiciable political question (the Constitution textually commits the Senate to making its own rules, and there are serious prudential concerns related to the separation of powers, as Prof. Goldman says in the A.P. article), there is also a substantive response to the Kmiec point: the Senate views itself as a continuing body, where only about 1/3 of its membership overturns every two years. So when the Senate continues its rules from earlier Congress's, it views itself as the same body using the same rules. In contrast, the House rules are recast every two years when the entire body turns over. So it is not, as Kmiec put it, a prior legislature binding the hand of the current legislature--or at least it is permissible for the Senate to so see itself.
    The second point may be right, but I think the first point is the knock-down argument. This would be a gross interference with the internal operation of the Senate. For 200 years the judicial branch has avoided interfering with the internal voting rules of the House and Senate. The Constitution gives each House power to make its own rules:
      Article I, Section 5, Clause 2: Each House may determine the Rules of its Proceedings. . .
    The filibuster is not the only internal organizational and voting practice that could be subject to judicial challenge. Don't you think that federal judges would like to keep that door firmly shut? If you are interested in the counter argument, see this post by Rick that quotes extensively from Doug Kmiec's Wall Street Journal piece arguing that the filibuster is unconsittutional.
    A Change in Senate Rules More interesting is the possibility of a change in the rules. I don't think I can make much progress on this topic in this post, but here are some points:
      --You can read Senate Rule XIX until you are blue in the face, but you won't find anything that looks like a filibuster rule. The filibuster is is inferred from Rule XIX.1.(a):
        When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.
      --Cloture is provided by Rule XXII.2, which is rather long winded, but the relevant bit is:
        "Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
      --Doug Kmiec wrote, "Senate Rule V provides that the rules of the Senate shall continue from one Congress to the next unless amended by two-thirds of those present and voting." But that is not the actual text of Rule V. It reads:
          1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules. 2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.
      The 2/3rds rule actually comes from Rule XXII, as quoted above.
    From Rules to Norms Which leads me to the main point of this post. I don't think the filibuster rule is really a rule at all. It would be interesting to hear from someone who is familiar with the Senate rules from the inside. I suspect that there are a variety of parliamentary techniques available for busting a filbuster--but that there is an informal agreement that such techniques shall not be used. [Update: But I email from those directly involved in the controversy convinces me that this suspicions is either wrong or way too simplisitic. At the least from the inside, it seems, this really is viewed as a matter of rules.] One possibility that occurred to me relates to the procedures that can be invoked by the chair in the event that a Senator violates the Senate debating rules. The chair seems to have the option simply to make the Senator sit down. My suspicion is that the filibuster is not really entrenched by the rules; it is really entrenched by a norm. Making noises about lawsuits and rule changes is a way of communicating that the norm is being stretched. What is the point of the filibuster norm? The filibuster gives each and every Senator enormous power, and hence, although it may be frustrating, most Senators realize that it is in their long-term self interest to preserve the filibuster. But the point of the filibuster is not to swing the balance of political power. The point of the filibuster is rent-seeking. The filibuster gives each Senator enormous powers of patronage and pork. When the filibuster is employed for ideological purposes it streches the norm, and hence the disadvantaged majority begins to make noises. Thus, I hypothesize that if a Democrat were to filibuster a judicial nominee for anything short of the Supreme Court on the basis of a political or personal greivance, the nomination would quietly die, without a fuss. It would be interesting to think more about the internal logic of the filibuster norm, but that's all for now.
    Further Reading If you are interested in this topic, you must read Catherine Fisk and Erwin Chemerinsky, The Filibuster, 49 Stanford Law Review 181 (1997).
    Post Script: Howard Bashman has an update on Filibusters. If you follow Howard's link to an Atlanta Journal Constitution story, you will find:
      Republicans have allowed other Senate business to continue while the filibusters percolate, but that is going to change, [Senator] Hutchison said. "We will force a real filibuster," she said. "We do not have a time yet." The tactic would be a gamble, forcing a parade of Democrats to continue speaking against the two nominees whenever the Senate is in session, effectively shutting down the chamber's business until one side runs out of patience and folds.
    A real filibuster means that the Democrats must speak day and night, with only water or milk.

Thursday, May 01, 2003
Workshop Today Joseph Sax (Berkeley) workshops The Barnes Collection, The Dead Sea Scrolls, And Other Proprietary Puzzles at the Kadish Center. Here is a taste:
    In all the voluminous literature on property, relatively little has been written about the constituent elements of a property right. The general understanding is that a property right consists of all those elements of use and control that dominion can embrace. For example, an owner can possess, exclude, use, sell, give, devise, destroy, etc. The full list is a long one. Two general exceptions are recognized to this notion of dominion: The state may restrict uses that are harmful to others, however beneficial they may be to the owner; this is the police power. And there are some things (in many societies) that cannot be owned at all or at least are outside the usual conceptions of property, of which the usual examples are other people (slavery and children, even one’s own), sexual services, atomic bombs, etc. A question that has been a subject of little attention is whether there are some elements of the usual property list that should be either eliminated or generally qualified from ownership (e.g., the asserted right to destroy, or as it has been classically described, the right to abuse, the jus abutendi).

Gaming Recess Appointments The Confirmation Wars have prompted several sources to suggest the use of recess appointments to break the logjam caused by Democratic use of filibustering (the Patricia Owens filibuster started today) and blueslipping. The most ingeneous (some would say diabolical) of these suggestions was made by Randy Barnett in a piece for National Review Online that dares to suggest that Bush Bring Back Bork, although for political reasons the President would be more likely to focus on the politically more feasible idea (which is the real point of Barnett's essay) of using highly qualified conservative and/or libertarian law professors as the talent pool. I've recently posted on this idea--Going Nuclear. A well informed source on The Hill has raised some interesting questions about the idea. In particular, my source--whom I shall call Deep Roberts (after Roberts Rules of Order, of course)--has the following thoughts:
    The first question is what constitutes a recess. Apparently, Teddy Roosevelt got away with a recess appointment where the Senate was in recess for just one day. But it seems that the courts haven't addressed this question. A Clinton era DOJ memo said that the recess must be longer than three days. This is what I assumed [before looking into the question more deeply], because there is a constitutional provision regarding adjournments greater than three days. But there is no real connection between these two clauses and in fact they use different terminology: recess versus adjournment.
    In parliamentary jargon - a recess is used to describe a short break in a meeting whereas adjournment is used to end a meeting. However in Senate practice a motion to recess is often used to end proceedings on a given day rather than a motion to adjourn. The result is that Senate legislative days often last for several calendar days. It is difficult to imagine that this meaning of recess is what was meant in Article II. As this is a question that hasn't been resolved in 200+ years - I'm not going to try to resolve it here.
    If a less than three day recess is sufficient to make a recess appointment -- then I don't think there is anything a Senate minority could do to prevent a recess appointment. A priveleged motion to adjourn would if approved give the President his opportunity to make the appointment.
    If the recess needs to be longer than three days, then I think the minority may be able to prevent an adjournment of that length. A motion to adjourn cannot be used to circumvent the contsitutional prohibition on adjourning for more than three days without the consent of the other house. To adjourn for more than three days -- the House and Senate must both agree to the same Senate or House Concurrent Resolution therby authorizing a recess. I do not believe that such a concurrent resolution is in anyway privileged in the Senate and thus it could be filibustered.
    Are there any laws that would give privilege to a constitutional motion to adjourn for more than three days? 2 USC 198 provides for adjournment to end the session (sine die) on July 31. I have no special insight into this, because Congress never adjourns sine die at the end of July - so I've never had to worry about it in practice. First in order to adjourn sine die in July the Senate leadership would have to be willing to stay out until the beginning of the next session in January. It would probably be a good thing for the Senate to be in recess for 6 months out of a year but in the modern context it would be an extreme move for the Senate leadership to take.
    Especially if you consider that the Senate minority could easily filibuster the appropriations process beyond July 31 making an adjournment sine die equivalent to shutting down the government. In fact a filibuster would hardly be likely as Congress in the best of years doesn't finish appropriations until well into October. My judgement is that it is not politically possible for the modern Congress to adjourn sine die that early.
    Also, it is less than clear to me what 2 USC 198 really does. It seems to provide constitutional cover for one house to adjourn sine die without the agreement of both houses. But I'd like to know how this provision worked when it was really used before I made a judgement. As you probably know, the House and Senate aren't constrained by the law when it comes to their own proceedings and rules - so any change to Senate rules since this provision was enacted (1970) in regard to sine die adjournment might override it.
    Finally, the President pursuant to Article 2 Section 4 may adjourn the House and Senate in the case of Disagreement between the houses over adjournment. To my knowledge this has never been tested. Disagreement in parliamentary parlance is a formal term with a specific meaning where it is used in the context of a bill passed both by both houses but where they have agreed to differing amendments. I don't know if this formal meaning has any relevance in the constitutional context. But it is safe to say that such a move would really be extreme and would be contested in the judiciary.
    At any rate if the Senate minority upped the ante this much -- it seems likely that the Majority would try to respond by doing away with the filibuster rules. And I think it is at least possible that the public would be supportive of such a move if the Senate was really as gridlocked as we are imagining. The result could then be that the minority couldn't block floor votes on nominees. On the other hand, I'm pretty confident a determined Senate Majority in opposition to the President could prevent the opportunity for the President to make recess appointments.
    I guess my bottom line point was that in considering *function* you might want to consider possible Senate responses (majority or minority) and their consequences to a perceived abuse by the President of recess appointments to the judiciary.
The last point concerns my analysis of the constitutional function of the recess appointments clause in my prior post. Fascinating!

Confirmation Wars Just few short items:
    Via Howard Bashman of How Appealing, an NRO piece discussing Sentator Schumer’s idea for bipartisan commissions to select judges.
    The White House Press Briefing had several exhanges on judicial nominations, but the most interesting one concerned the theory that the Senate has a constitutional "responsibility" to provide an up or down vote on Presidential nominees, link here and for more links, go to this Bashman post.
    And the Owen filibuster is officially on. The first cloture vote failed. See How Appealing here.
    From yesterday, my post on the Constitutionality of Recess Judicial Appointments, or as I put it: Going Nuclear.
    And from Monday on National Review Online, the Barnett plan, or Bring Back Bork?

Schwarzschild at Brooklyn My temporary landlord (and all around nice guy) Maimon Schwarzschild (University of San Diego, Visiting Brooklyn) will be presenting Peasants With Pitchforks: Putting Direct Democracy In Its Place at a Brooklyn Law School roundtable today. Here is a taste from the introduction:
    The idea of direct democracy conjures up sharply conflicting images and feelings. There is the positive, almost idyllic picture, which might be set in ancient Greece: the Birth of Democracy, the assembly of citizens under the acropolis, Pericles’ oration, Aeschylus’ furies tamed by democracy and the rule of law. Or think of a New England town meeting. Or of sturdy Swiss democracy. It is the hopeful vision of direct democracy: free and equal citizens governing themselves, open politics openly arrived at, public decisions that are truly of, by, and for the people. But set against all this is a negative, even lurid picture: in Athens itself, the trial and execution of Socrates, soon followed by Aristotle’s suggestion that democracy is a perversion of constitutional government, a degeneration into mob rule. Or in the twentieth century, the spectacle of plebiscites that reinforced dictatorship and fascism: torchlit scenes of Hitler’s plebiscites, to take the most gruesome example. Or more prosaically, H. Ross Perot in the 1990s calling for government by populist referendum. It is a dystopian vision: decisions made by vote of an often ill-informed public, polarised by “yes-or-no” questions, manipulated by demagoguery and special interests; the rights and interests of minorities put in peril, representative and republican institutions weakened.

New Papers on the Net Here is today's roundup:
    Shubha Ghosh (SUNY Buffalo) and David Driesen (Syracuse) upload The Functions of Transaction Costs: Rethinking Transaction Cost Minimization in a World of Friction. Here is an excerpt from the abstract:
      This article critically examines the goal of minimizing transaction costs, including the costs of legal decision-making. This goal permeates the law and economics literature and has profoundly influenced public policy. While most transaction cost scholarship has focused upon private law, this influence has been especially pervasive in public law, where it has contributed to a variety of legal changes aimed at reducing public transaction costs, often through privatization. We argue that transaction costs perform useful functions. They frequently enable those engaging in transactions to obtain information needed to correct for information asymmetries or inadequate information. They facilitate efficient transactions, allow the avoidance of bad transactions, and serve important equitable goals.
    Samuel Issacharoff (Columbia) posts The Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections, forthcoming in the Texas Law Review. Here is a taste:
      This article explores the preconditions for the transfer of power within democratic regimes. Invariably, constitutional discussion of the necessary preconditions for a successful, peaceful transition to power focuses primarily on rights guarantees to the defeated minority. The minority must be assured of the ability to proclaim its views in the future, the ability to assemble and to organize itself, the ability to be secure in their person and property—in short, much of the formation of rights associated with democratic liberties. But just as surely as the rights domain is necessary for a rudimentary formulation of democratic legitimacy, it is also incomplete. Just as central are the structural protections, which include the obligation to stand for election anew at some fixed or relatively fixed interval, the limitations on the powers of office, and the accountability of the governors to the structures of office, as exemplified in this country by the divisions of powers among coordinate branches of power. This article focuses on the structural components of constitutionalism as a necessary constraint on democratic politics. This precommitment necessarily thwarts or limits deliberative choices after constitutional enactment, yet serves as a precondition for the functioning of democratic politics. The article focuses on the work of political theorists Jon Elster and Stephen Holmes to argue that current constitutional scholarship underestimates the importance of constitutional obduracy. The article concludes with a reexamination of the Florida electoral crisis of 2000 from the vantagepoint of the entrenchment of ex ante constitutional procedures.
    Konstantin Sonin (New Economic School - CEFIR) offers Why the Rich May Favor Poor Protection of Property Rights. Here is a taste:
      In unequal societies, the rich might benefit from shaping economic institutions into their favor. This paper analyzes the dynamics of institutional subversion focusing on one particular institution, public protection of property rights. If this institution is imperfect, agents have incentives to invest in private protection of property rights. With economies of scale in private protection, rich agents have a significant advantage: they could expropriate other agents using their private protection capacities. Ability to maintain private protection system makes the rich natural opponents of full protection of property rights provided by the state. Such an environment does not allow grass-roots demand to drive development of new market-friendly institutions (such as public protection of property rights). The economy as a whole is stuck in a 'bad' long-run equilibrium with low growth rate, high inequality, and wide-spread rent-seeking. The Russian 'oligarchs' of 1990s, a handful of politically powerful agents that controlled large stakes of newly privatized property, we re the major motivation for this paper.
    Maureen O'Rourke and Joseph Brodley (Boston University) provide Antitrust Implications of Patent Settlements: An Incentives Modifying Approach, forthcoming in the Minnesota Law Review. Here is a tidbit:
      Recent patent settlement agreements in pharmaceutical cases have involved payment of large sums by branded drug producers to generic challengers to abandon or delay entry. While the law generally favors settlements, patent and other intellectual property settlements can become powerful vehicles for antitrust abuse when patent rights are invalid. Some have called on antitrust courts to resolve the validity of the patent rights in antitrust cases, but such an approach is impractical. It would burden antitrust courts with intractable complexity and require litigation of an issue where the parties with the best information - the patentee and the alleged infringer - are both aligned against the antitrust plaintiff. We urge that a better approach is to modify the incentives of the economic actors to align them with the public interest in competition. This can be done in three ways: (1) changing patent law in ways that would reduce the number of invalid patents issued, (2) requiring disclosure to public antitrust agencies of heretofore undisclosed patent settlements, and (3) limiting the terms of settlement agreements to the date of entry by the alleged infringer and the royalty to be paid to the patent holder.
    Jamison Colburn (Columbia) unveils 'Democratic Experimentalism': A Separation of Powers for Our Time?. Here is the abstract:
      The separation of powers became the ambivalent, largely rhetorical tradition it is today as a result of the plasticity of its core concepts, power, authority, and liberty. Throughout the Progressive and New Deal eras its basic meaning was complicated by an experimentalist reinvention of its traditional institutional faces. This experimentalism resulted in new institutional forms and new theories of legitimate legal rulemaking. But these eras built from the doctrine's past more than they departed from it. Moreover, the experimentalist attitude was perhaps most important for the reaction it engendered: a legalist attitude of critique and opposition to the very premises of experimentalism. The tensions between these two, in fact, are what set the stage for the specification of administrative law's core construct separating powers/authorities and protecting liberty in the administrative state - the APA. This is most evident in its creation of notice and comment rulemaking.