Power or authority or any kind can be misused. Moreover, when urinating, it is possible that your penis suddenly turns upward and you start pissing in your eye. This may cause you to step backward, stumble and fall thus breaking your neck. The result is that you shit yourself and die. Contingencies of this sort pose acute dilemmas for analysts and actors who are busting for a pee.
Following on from my previous post, I look at Posner & Vermeule's claim that 'insider/outsider fallacies' arise when it comes to Presidential & Emergency powers.
Presidential power and emergency powers pose acute dilemmas for analysts and actors
If there is an emergency, who gives a fuck about the tender sensibilities of 'analysts and actors'?
who want government to have power to respond vigorously to emergencies, but who also fear that an imperial presidency will ride roughshod over legality and liberal rights.
Also, the President might press the nuclear button and blow up the world. That's more frightening than the notion that emergency powers might be misused.
A common reaction is to attempt to escape the dilemma by licensing presidential action that- the hope runs -will somehow remain outside the system,
It is perfectly acceptable to stipulate that an immunity for a particular action is temporary and sui generis.
setting no precedent for the future and maintaining the purity of the law and legal rights. We will trace that idea through three different arguments, and show that it rests on a conceptual confusion. Presidential action is always and necessarily action within the system;
in which case it is justiciable. But wrong actions- murder, rape etc.- are 'within the system' in the sense that they are punished by it. So is Presidential action. One check upon it is provided by the Cabinet. Another by the Legislature. A third arises from the Bench.
there is no way to prevent such action from setting precedents.
No. There is no way for a Presidential action- even if it is held to have established a 'tradition'- from acquiring the legal force of a precedent.
So too with judicial responses to presidential action; whatever judges do will create a precedent, either de jure or de facto, within the system.
The Supreme Court can overrule itself.
P&V display a tender concern for liberal
commentators (who) want government actors, especially the executive, to adopt a posture of "responsible illegality."
Feminist commentators, like myself, want POTUS to admit that he is a RAPIST because he has not undergone gender reassignment surgery. Furthermore, bleck activists, like myself, want him to confess to having enslaved millions of darkies because his own skin is white and the mere existence of white skinned people in positions of power dooms me and my kind to a wretched existence plucking cotton under the lash.
The president, for example, if faced with the need to take decisive action in emergencies that violates ordinary liberal rights, should do what needs doing, candidly admit the illegality, and throw himself on the judgment of the public.
Sadly, there is no illegality in being White or having a dick or doing anything for which you have a Hohfeldian immunity.
The public in turn may ratify his actions through legislation, retroactively immunize him from liability, pardon his excesses, or otherwise excuse him from the ordinary legal consequences of wrongdoing.
Very true. This is why all White peeps should immediately convict and incarcerate themselves on charges of having enslaved billions of darkies. You may say that Whites may not want to go to jail but the Legislature can always pass a law retroactively granting them immunity and ordering their release.
Although this sort of regime has been justified in part on grounds of accountability, the main impetus is to immunize ordinary law from the distorting effects of emergencies.
Or the fact that some peeps have dicks or are White or, like Kamala Harris, are fairer skinned and have a bigger dick than me.
There is no fallacy in reasoning of the sort I have given above. There is merely a paranoid type of stipulation- viz. that if, in an emergency, there is some departure from accustomed behavior that behavior is bound to involve POTUS enslaving and sodomizing trillions of dark skinned Socioproctologists or people almost, but not quite, as poor and stupid.
The diagnosis that underpins the argument from responsible illegality is that presidents, legislators, judges, and other actors have a set of motivations and beliefs that threaten to produce a cycle of ever-expanding executive power-a one-way ratchet.
No. The diagnosis here is similar to that of an elderly maiden lady, of startling ugliness, who asserts that young, good looking men, are constantly trying to get into her house in order to deflower her and sate their vile lust upon her quivering form. We nod our heads politely but clarify that they young plumber or delivery-man in question is perfectly trust-worthy. Also, he is as gay as fuck. Otherwise, he'd certainly ravish the fair damsel. The temptation would be too great.
Similarly, if some 'commentator' starts wailing about how Biden might turn into Hitler, we hold their hand and say 'you're terribly brave. Democracy needs vigilant guardians like you. However, in this particular case you needn't worry. Biden is perfectly trust-worthy. Also he is as old as fuck. He might wake up in the morning wanting to invade Poland but quickly gets confused and ends up sending more money to Israel.
P&V cite
Justice Robert Jackson's dissent in Korematsu v United States,
Korematsu had plastic surgery to alter the shape of his eyes. He claimed he was Hawaiian/Spanish and thus not subject to the internment order applicable to people of Japanese descent. The precedent stands though the Bench's ratio of 'military necessity' is not now believed to be justified on the facts of the case.
the notorious decision that licensed internment of Japanese aliens and Japanese-American citizens in a military zone along the West Coast during World War II. Justice Jackson's opinion attempts to square the circle of emergency powers by stepping outside the system from within the system-a conceptual impossibility.
This was not the case. Jackson was merely saying that the Court should discharge the young man but not interfere if he were rearrested by Military or other such authorities. As a matter of common sense, why intern Japanese-Americans if they really were dangerous? Let Congress vote to deprive them of their citizenship and then either deport or massacre them. Stuff like that was perfectly legal and not repugnant at all to a large section of the American population.
Jackson said 'But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it'
Jackson had a feud with Black, who wrote the majority opinion. Essentially, he and the other two dissenting judges were putting the onus on Black for a judgment which, frankly speaking, could have introduced an overt racial element into criminal law.
Justice Jackson adopted a seemingly paradoxical stance. He voted to discharge the detainee, on the ground that the courts should not themselves enforce unconstitutional military orders,
the majority opinion was that 'strict scrutiny' had been applied and the thing was constitutional
but he also indicated that the courts should not have attempted to interfere with the Army in carrying out its tasks.
He didn't say that that. There is a distinction between what is constitutional and what the Bench can certify, on the basis of strict scrutiny, as constitutional just as there is a distinction between guilt in a criminal case and what a court can certify as guilt beyond reasonable doubt
The only way to reconcile these two ideas is that, on Justice Jackson's view, the courts should simply refuse to exercise jurisdiction if a detainee sues for review of the military's extralegal behavior; Justice Jackson's hope is that the military will do what it needs to do, entirely outside the legal order, while courts refuse to intervene.
Courts refuse to intervene in all sorts of matters on a variety of different grounds. In this case, we might say that a Court decides that there is Executive immunity of some delegated type from the Commander in Chief.
In a nonobvious way, Justice Jackson's opinion falls into a version of the determinacy paradox.
There was no determinacy here because there were many ways to skin that particular cat.
The fear of creating a precedent is the fear that future actors will take a precedent that defers to the military and use it in ways Justice Jackson thinks harmful (the "loaded weapon").
Which the Bench was free to unload at any future time. In 2018 (in connection with Trump's travel ban) it was claimed that SCOTUS had overruled Korematsu (the actual conviction was overturned in 1983) though this is disputed.
That amounts to a diagnosis of the motivations of future actors; Justice Jackson's prescription is for the Court to decide nothing.
A minority prescription may be mere virtue signaling or politicking.
Yet the future actors, given the very motivations posited by the diagnosis, may also claim that the decision to issue no decision is itself a precedent, one that requires inaction by subsequent courts when asked to overturn military action.
Anything at all may be argued by anybody at all.
Justice Jackson's view turns out to be pragmatically self-defeating because of an inconsistency between diagnosis and prescription-the hallmark of the determinacy paradox.
They were pragmatically self-serving. He didn't like Black and, at a later point, blamed him for not getting the top job.
At bottom, Justice Jackson's Korematsu opinion is Delphic and his assumptions unclear.
They are clear enough. He was point scoring against a guy he didn't like.
There might well be ways of understanding or specifying those assumptions to make his argument cohere;
A dissenting opinion doesn't have to 'cohere'. It may impugn, in a particular context, ratios The majority opinion has to be more carefully drafted.
here are some possibilities. Justice Jackson might be making one of two assumptions about the motivations of future judges. First, he might assume that judges on future courts, like his own, will be motivated to avoid confrontation with the military.
Fuck the military. Had the Japs not been interned, local thugs would have attacked them till they either retaliated (in which case the military would have been called in to finish the job) or fled.
But if that is so, the prescription-avoid setting a judicial precedent-will have no effect on them whatsoever.
But refusing to hear a case itself sets a precedent.
Second, he might assume that judges on future courts blindly follow judicial precedents,
why on earth would he do that? To get his law degree he had to mug up the names of the various cases involved in 'judge made law'.
and if that is so, failing to set a judicial precedent may encourage them to rule against the military in appropriate circumstances. But if that is Justice Jackson's reasoning, he needs to explain why future judges will act differently from his own court. There is a third possibility, and that is that Justice Jackson hopes that the failure of his Court (and possibly future courts) to endorse a military action will at least force the military to justify its actions to the public,
they do so already. Generals hold press conferences or issue press releases saying 'we are killing lots of people so as to make you safer.'
so that a heightened level of public attention will substitute for judicial review. Only this last possibility escapes the inside/outside problem.
The public has the attention span of a goldfish. It can't substitute shit.
So we do not mean to deny that Justice Jackson's opinion might be reconstructed in a coherent fashion, only that there is a prima facie inconsistency in his view
just as there is in eating a four course dinner while gassing on about the very strict diet you are on. The strange thing is I seem to keep putting on weight. I think it has something to do with global warming.
and that attention to the inside/outside
problem is a necessary precondition for clarifying his argument.
Politics is done by Judges as well as politicians. True, some judges have a reputation for being non-partisan but, in America, this isn't generally the case.
More abstractly, if universal cooperation to promote overall welfare is unattainable,
It is. The best we can do is to have 'public signals'- e.g. laws or decisions in relevant court cases- which promote better 'correlated equilibria'.
a competitive system might function best overall if none of the actors attempts to consider the overall well-being of the system,
that is the case on open markets with no externalities or other sources of market failure
and instead all concerned pursue their private interests. This is a problem of partial compliance or second best, one that arises in many domains.
Public signals can promote 'second best' solutions- e.g. decide a particular market is 'repugnant' and should be banned. This helps redistribute income to criminals. This is good for rap music which will soon be the only thing the US can export.
Analogously, economists and political theorists have argued that even if an economy in which all agents are fully altruistic would be best of all,
only if there is perfect information and thus the Social Welfare function is 'common knowledge'.
an economy in which all agents are entirely self-interested might do better for all than an economy in which agents are somewhat altruistic (or only some agents are altruistic). Likewise, in an adversarial system of litigation, judges might obtain the most useful information from litigants if each party advocates relentlessly for its own interests, rather than attempting to consider the other party's interests from an impartial perspective.
No. There are disclosure requirements incumbent on parties to a suit. You must come to court with clean hands.
These are just possibilities, as is our parallel point about a Madisonian system. But it is a serious complication for "Madisonian" judging that judicial attempts to stand outside the system, as an impartial referee or antitrust regulator, might make things worse, not better, from the very standpoint of preventing aggrandizement.
There is always a risk that people empowered to make decisions might make bad decisions.
What is the correct economic analysis of
checks and balances among institutions in a system of separated powers?
The answer has to do with 'consistency'. Decisions of a 'mixed' type are separated out such that consistency- i.e. rationality- is displayed under different rubrics. This makes the system more predictable. Thus, the Executive sets fiscal policy for mainly economic reasons and the rationale of its economic policy can be separated out from political or judicial considerations. The Legislature represents the former constraint while the Bench represents the latter. However, there is also a National Security or military establishment.
Depending on what threats or opportunities a country faces, greater weightage would be placed on economic or military priorities or internal political considerations.
a
common modeling constraint is some rule that prevents Coasean
bargains among actors to carve up or reallocate powers on mutually beneficial lines.
Coasean 'internalizing of externalities' reduces the need for litigation or legislation. What we see in politics is a reluctance on the part of legislators or the Executive to take a position on 'wedge issues'. They prefer to kick the can down the road into the Courts. America is a bit unusual in that it has 'Dual Sovereignty' and so the Bench has greater salience.
Such a constraint is a necessary prerequisite to a functioning system of mutual checks among separated
institutions; if actors may costlessly bargain to reallocate powers
among themselves, then the Constitution's specification of powers and functions will be circumvented.
Bargaining isn't costless. What is costless is a 'common knowledge' based consensus which results in the spontaneous appearance of coordinated action. Thus, during a War, there is common knowledge that certain precautions must be taken which would be otiose in peace-time.
Low transaction costs
defeat the separation of powers across institutions.
No. such transactions are illegal. POTUS isn't allowed to slip SCOTUS a briefcase stuffed with cash. Indeed, even offering beejays to the Chief Justice is frowned upon.
Political parties illustrate the Coasean vulnerability of the
Madisonian system.
Nope. They solve a coordination problem and promote horse-trading so as to permit coalition stability.
Parties, on this perspective, are coalitions of
actors who implicitly bargain to reallocate powers among themselves, regardless of the long-run power or interest of the institutions they happen to temporarily control.
No. If you occupy a house- even temporarily- it isn't in your interest to set it on fire. What you try to do is to ensure your lease will be renewed. Shitting all over your house is unlikely to secure this outcome.
If, for example, Congress and the presidency are both controlled by the same party,
there is no reason to expect vigorous institutional competition
between the branches.
Because there are no internal power struggles within a party. The plain fact is that members of Congress need to show their constituencies that they either have a lot of power and influence with the administration or else are the country's best hope of corralling an out of control POTUS.
The individual interests of legislators will
be tied to the interests of their partisan coalition, not to those of
Congress as an institution; the "interests of the man" will come
untethered from "the rights of the place."
Nonsense! If you are renting a desirable property you want to keep it in good order so the landlord has an incentive to renew the lease.
There is no reason
to think that partisan interests will or will not systematically or
routinely correlate with long-run institutional interests, although they may do so fortuitously and in the short run.
If voters want to see an institution destroyed, they are welcome to elect crazy fools. Landlords too are welcome to hand over their properties to vandals. But why would they want to do so?
When Professors Levinson and Pildes say things like, "we might use legal rules and institutions to prevent strong parties from unifying government so thoroughly as to threaten Madisonian values," one wants to ask who this "we" is supposed to be.
Voters. It is obvious that there is 'agent principal hazard'. As voters we should be vigilant. Within any party, there are some 'good eggs' who want to protect institutions rather than throw wild parties and shit all over them.
We act principally through parties, or so Professors Levinson and Pildes have argued, and the question is why parties would have any incentive to listen to such advice or to adopt it.
Voters should be well informed enough to deny votes and donations to 'bad eggs'.
The point is not that such arrangements could never come about. In certain political configurations, certain mechanisms might explain why parties cede rights to legislative minorities, create agencies insulated from their own control, or otherwise act against their seeming short-run interests.
Vested interests may be able to secure the creation of agencies which they capture. Eisenhower famously condemned the 'military industrial complex' but voters saw that this complex created well paid jobs of a non-cyclical kind. Kennedy got elected by claiming there was a 'missile gap'. In other words, he would raise military spending. He also cut taxes much to Galbraith's chagrin.
Work in political science explores such mechanisms.45 But as is common in the legal literature, Professors Levinson and Pildes do not discuss such supply-side mechanisms in any detail, and their existence cannot by any means simply be assumed. We have lingered on Professors Levinson and Pildes because of the importance of their work on partisan competition and the constitutional order, but similar inside/outside problems crop up elsewhere.
There is a problem of lobbyists who are 'insiders' who help sustain rent seeking practices. However, what vitiates the Levinson/Pildes thesis is heterogeneity within parties. The liberal wing of one party might be identical to the conservative wing of the other. The median party member may be on one side or the other of the median voter and thus the degree to which mean and mode diverge from the median becomes the driver of the underlying electoral dynamics.
Another example is a recent and important paper by Professors Curtis A. Bradley and Trevor W. Morrison on acquiescence and historical gloss in separation of powers law. The traditional notion, captured by Justice Frankfurter's concurrence in Youngstown Sheet & Tube Co v Sawyer, is that a
long-continued pattern of executive behavior known to and acquiesced in by Congress can create a "gloss" on presidential
power that becomes part of the operating constitution.
Justice Clarence Thomas referred to Youngstown in his dissent from Hamdan v Rumsfeld. The upshot to the objection that the President did not have the authority to set up a Military Tribunal was the 2006 Military Commissions Act of 2006.
Professors Bradley and Morrison draw upon the political
science literature and related legal work to launch a devastating
critique of that idea.
Which isn't part of the Law. Youngstown & Hamdan limit the power of the President even if some think there is a 'gloss' of some sort. But Congress can always clarify matters.
Congress faces severe problems of collective
action; even if all legislators would benefit from defending the
long-run interests and prerogatives of Congress as an institution, individual legislators' incentives are political and partisan,
above all to seek reelection.
Legislators from the party opposite to that of the POTUS have an incentive to make out that the fellow is seeking to subvert the Constitution and do evil Nazi or Commie shit.
Given the public-good character of
legislative self-defense,
A public good is non-rival. If the power of the Legislature increases some other group loses out.
that good will be undersupplied
Only if voters don't back legislators who stand up to the Executive or who reverse decisions of the Bench- e.g. voting through more liberal abortion laws as a reaction to the recent SCOTUS decision to reverse Roe v Wade.
and
Congress as an institution will often fail to protect itself from
presidential aggrandizement.
This could happen if there is a charismatic POTUS whose endorsement is needed to get reelected. But such a POTUS may also be able to pick his successor and to pack the Bench.
The institutional presidency, by
contrast, suffers fewer problems of collective action because it
has a relatively unified and hierarchical structure and because
there is a standing executive bureaucracy, in the Department of
Justice's Office of Legal Counsel and elsewhere, devoted to protecting presidential prerogatives.
But that office may be shit. Ultimately, what matters is the popularity of POTUS. It must be said Nixon's 'Saturday Night massacre' of DoJ heads (he was angry that they were refusing to drop a subpoena) backfired. Impeachment proceedings began ten days later.
Although Professors Bradley
and Morrison do not use the term, their picture is in effect one of
asymmetric Madisonianism in which the presidency as an institution does a much better job of protecting its interest than does
Congress.
Nixon fucked himself. Against stupidity, the Gods themselves battle in vain.
It follows from this analysis that the acquiescence
doctrine is suspect, because Congress will sometimes or often
fail to take action to protect itself even when it should (from a
Madisonian point of view).
Congress is often sodomized by POTUS. It should learn krav maga.
The danger, in America, is not that Congress will sleep on its rights but that vested interests will gain control over it. Analysts need to 'follow the money'.
The analyst's first duty is to ensure that the combination of assumptions she adopts is consistent, across both
prescription and diagnosis.
The analyst's first duty is to have a good Structural Causal Model with predictive power. Money provides that. Talk of Madison- or even Ashley Madison- is useless.
Process Theory: Majority Prejudice, Official Self-Dealing, Interest Groups We have focused on Madisonianism and its variants, but structurally similar points apply to other theoretical frameworks in public law; we will treat these more briefly. Our catch-all label is "process theory," stemming from sources such as John Hart Ely's theory of judicial review and literatures in public choice and political economy. Process theories come in many shadings, but we will mention three main concerns: (1) majority prejudice that prevents the impartial representation of minorities;
Not a problem if there are a number of minorities with normally distributed preferences. By the Condorcet Jury theorem, for a large enough population, they cancel each other out.
(2) self-dealing by incumbent officials who choke off "the channels of political change," through institutional arrangements that in effect gerrymander the political system to perpetuate themselves;
which is the real problem with Congress. Nancy Pelosi has been a member since 1987. But that's one reason she can be quite effective as a check on, or rallying point for, opposition to, POTUS
and (3) vote buying and campaign financing by interest groups who cause legislators to act in ways that benefit the groups but reduce overall welfare.
This is also true of POTUS. Did you know both Kamala & her husband are gun owners? If the lady has inherited her mother's Tambram temper, that won't end well. Being hit with a rolling pin is one thing. Getting shot by .44 Magnum is a different matter. Still, that's what gives Kamala her big dick energy.
In all three contexts, theorists have proposed judicial review as a potential corrective.
Judicial review is expensive. It is likely to be used by vested interest groups to push-back on legislative remedies.
Ely justified a great deal of the Warren Court's work as an effort to promote representation of the interests of minorities in a pervasively prejudiced system of politics, or alternatively to prevent incumbent officials from insulating themselves against political challenge.
Warren was a Republican with strong anti-Communist credentials. If he championed African American causes, it was to harm the Democrats. You may say he opened the door to Nixon's Southern strategy.
A different matter has to with the Cold War which required a dilution of Dual Sovereignty so that the Federal government would be in a stronger diplomatic and military position. Jim Crow was incompatible with winning hearts and minds in the newly independent countries of Africa and Southern Asia.
A generation after Ely, public choice theorists argued that the role of interest groups in politics implied a need for expansive judicial review; facing no need for reelection, life-tenured federal judges would be less beholden to such groups and could deploy constitutional protections to block inefficient ("rent-seeking") legislation.
Maybe in a French style 'investigating Magistrate' regime. In the US, however, you could have a crusading Attorney General- e.g. Kamala Harris in California, who went after 'for-profit' College chains and crooked Mortgage companies. I suppose countries like India, which have no doctrine of political question, can have activist Judges who can take suo moto notice of specific issues- e.g. opening detention centers for illegal immigrants.
In America, Judges do recognize 'political question' and tread a fine line between pushing back on popular (or populist) initiatives and risking a backlash which leads to legislation of a more extreme type.
What is puzzling, and possibly paradoxical, is that Justice Scalia's argument
he is an 'originalist'
is reflexive. He argues that his commitments to originalism, textualism, and rule following also prevent him from implementing his policy preferences.
In other words, he can't usurp power or arbitrarily push back on 'political question'.
He urges other judges to adopt these methodologies voluntarily so as to curb their own instinct to implement their ideological preferences. The paradox can be seen from two directions. First, one can ask why a justice who seeks to implement his policy preferences would adopt a method that prevents him from doing so.
Because he has professional integrity. A banker may like money but may still refrain from stealing it from his customers.
If the account of motivation is correct, he would have no reason to adopt such a method.
Unless he has integrity or wishes to maintain a reputation for it.
Second, one can ask why a justice who is public-spirited enough to adopt a method to prevent himself from implementing his policy preferences would not be publicspirited enough to decide cases neutrally, case by case.
One of his 'policy preferences' is that public policy is made in the manner the framers of the Constitution intended. Presumably, it outweighs his preference that the poor be fucked to death.
Justice Scalia risks committing the inside/outside fallacy, as he asserts, from an external perspective, a theory of judicial motivation that is inconsistent with the premise of his normative proposals.
Integrity is considered an innate quality requisite for service on the Bench.
There may be a way out of the paradox.
There is no paradox. I may want to fart but I may also not want to stink up the dinner party. Thus I suppress my fart. I'm kidding. Not to fart at a posh dinner party is a faux pas.
Suppose that judges care about two things: (1) advancing their ideological preferences and (2) maintaining their individual reputation for impartiality. It is possible that if judges too obviously implement their preferences, they will harm their reputations so greatly that the reputational costs to the judge will exceed the ideological benefits.
Why not find really convincing reasons for implementing your preferences? The fact is everybody enjoys smelling my farts. If I don't get invited to dinner parties it's because I upstage everyone else.
Consider the standard pair of ideas
in the law-and-economics literature that government officials act
in their self-interest
Broadly defined- sure. Most people want to do their jobs with integrity or, at least, enjoy a reputation for doing so.
and that judges should maximize efficiency
or welfare.
No. They are welcome to take account of the public interest but it is equally, or even more, important that the Justice system be predictable. The classic example is 'rules based' vs 'discretionary' competition policy. When I was young. some argued that the American 'rules based' approach was more predictable and thus better. The 'Law & Econ' school helped change this which was cool in the context of new technology being able to gain tremendous scope and scale economies with the result that prices fell faster and quality increased more rapidly in highly concentrated markets. But economists had long known about the problem of non-convexities. Currently, the chickens are coming home to roost in the shape of huge inequalities of wealth which may have resulted in a distortion of the political process. Dem West and East billionaires are totes 'woke' and will force ordinary folk like you and me to get gender reassignment surgery.
Judges are government officials, of course, and so
then the question arises why judges acting in their self-interest
would ever accept the advice to maximize efficiency or welfare.
Speaking generally, judges don't get to make decisions on the basis of 'efficiency' or welfare. Thus if I appear before a Judge for being drunk & disorderly, he can't tell me to give up Socioproctology and take up toilet cleaning because that's what would most benefit society. Also, I should get gender reassignment surgery. Seriously, with my high cheek bones, I'd be the next Naomi Campbell.
Coase originally intended to become a solicitor. Researching how industry actually functions under Arnold Plant caused Coase to become an economist. His intention was to reduce the need for lawyers and expensive litigation. I should mention, what we now call the theory of externalities was flourishing not at the LSE but within the Worker's Education program. That's why Aneurin Bevan- a coal miner who left school at a young age- sounds weirdly modern. But Coase understood the danger of the Government intervening every time an externality is spotted. There were other problems- e.g. Abba Lerner's advocacy of Marginal Cost pricing for utilities (which would mean tax-payer subsidies)- which Coase wanted to nip in the bud.
The opposite approach is that judge's personal preferences do not matter because of structural features of litigation.
It is desirable that Judges have the preferences of the 'reasonable person'. They ought not to be 'Martians'. Interestingly, British Judges in India tended to adopt the view of the High Caste Hindu or Ashraf Muslim when judging issues cases where Hindu or Muslim law applied. That was one reason Indians did not disintermediate the Raj's courts despite the best efforts of Mahatma Gandhi.
If judges choose efficient legal rules, parties will settle; only inefficient rules will be subject to the pressures of the litigation process; and rules will eventually become efficient.
Nonsense! Inefficient rules or poor Judicial administration- e.g. in India- leads to more and more litigation- especially 'nuisance' suits or counter-suits. On the other hand there will be exit from the jurisdiction for higher value adding transactions- e.g. Indian Companies contracting with each other through branches in Dubai or Singapore.
These theories have been shown to rest on highly fragile assumptions, but even if these assumptions were robust, the theories would not avoid the inside/outside fallacy.
Not if it does not exist. The fact is, in social life we differentiate between our personal preferences and the choices we feel we have to make. Sometimes, this is disingenuous as when a sadistic headmaster assures a little boy that he does not enjoy beating him. Well, that's what used to happen when I was a kid. Nowadays, young people express distaste for having to knife their teachers but how else are they to get their credit in Critical Legal Studies?
If the evolutionary pressures of litigation ensure that the law will be efficient, then the advisor might as well keep silent. Efficiency arises in these models through an invisible-hand mechanism, not because judges intentionally seek to promote the public interest.
No. Exit from the jurisdiction leading to reform is an example of the 'invisible hand'. Streamlining Court administration and improving various rules benefits judges by speeding up case disposal.
P&V consider the highly consequential Bush v Gore decision. Though Florida's Supreme Court was appointed by Republican Governors, and the Governor was Bush's brother, they still ordered a recount. Did they do so because they knew they would be overruled by the Supreme Court? This way they got to eat their cake and have it to.
What mattered was the 'safe harbor' deadline under Title 3 of the US code. SCOTUS decided it couldn't be met and invoked the Equal Protection Clause on the somewhat questionable grounds that Florida had different methods of counting votes in different districts.
For the five-justice majority in Bush v Gore, the problem was how to ensure that Bush would prevail without establishing a precedent that any voting regime that relies on discretionary standards is constitutionally suspect
this is why 'safe harbor' mattered. Essentially, in certain discretionary contexts, it specifies that certain conduct will be deemed not to violate a given rule. In this case, what was important was that Bush be seen as having legitimately gained the Presidency.
- a precedent that might, in their view, have been unwise as a purely jurisprudential matter, or merely unpredictable, or possibly harmful for Republicans
It might undermine faith in the legitimacy of the Executive. In the context of Trump's refusal to accept defeat in the last Presidential election, we can see why this matters.
Bush v Gore has become a precedent even if this was not the intention of the majority who gave the decision. The key sentence in the judgment is as follows Our consideration is limited to the present circumstances,
which seems dispositive for the 'no precedent' camp. The problem is that the second sentence might mean 'this is a thorny subject. There is a precedent but it must not be applied without what in India is called 'application of mind'
for the problem of equal protection in election processes generally presents many complexities.
Ultimately, a precedent is only a precedent if subsequent Judgments rely upon it. This is one reason there can be no 'Science of Law'. It has no mathematical representation as a deontic logic. The difference between Physical Sciences which are 'Games against Nature' and thus decidable and the Liberal Professions is that though both may have Structural Causal Models, the latter, by reason of epistemic impredicativity, can point to no mathematical objects save 'revealed preference' or empirical outcomes which can at maximum display correlation or Granger Causality with the explanans they use. Thus, though you can have intensional fallacies (because 'extensions' are impredicative or arbitrary and non unique) you can't have a punctum Archimedes outside the system at least until all human life comes to an end.
It is reasonable for lower courts to assume that cases with facts legally indistinguishable from those of Bush v Gore
the facts are always different. The court has to decide which principle of law applies. They may be over-ruled, but if that happens the Legislature may be motivated to push through a law which goes further in that direction.
will be decided in the same way-unless, to be sure, the Supreme Court's decision was partisan, but lower courts could not ignore a precedent on those grounds, even implicitly. The Court could not suspend the rules of precedent for one case because the rules of precedent are rules of the system in which the Court acts.
They can and do decide which precedent applies. In Obama for America v Husted, Bush v Gore was used to roll back recent changes to Ohio's system for managing absentee balloting and early in-person voting. But, there was also an 'Equal Protection' argument for Ohio's original decision. It was the facts of the case which mattered.
The attempt by the
Bush v Gore majority to deny precedential effect to its own decision thus rested on a self-refuting theory of the motivations of
the actors it attempted to bind.
But the Equal Protection Clause would still have been there. The precedent had to do with its being applied to State voting law. I suppose in Husted there was a ' suspect classification' (i.e. poor blacks were more likely to lose out by the change) which triggered 'strict scrutiny'. Still, this was a case where the state's judiciary had placed an injunction on the state's executive and so there was no 'dual sovereignty' question.
Inside/outside fallacies also appear in debates about international law.
International law is enforced only through Nations. No contradiction arises if a party fails to enforce a law against itself. Hypocrisy is a 'bourgeois strategy' based on uncorrelated asymmetries. The law has no difficulty with recognizing that a person has a right not to incriminate himself but no such right when it comes to testimony against a third party.
International law bears more than a passing resemblance to constitutional law because, like constitutional law,
it establishes the norms that govern the behavior of institutions while depending on those institutions to enforce those norms.
The law assumes that Judges won't take bribes.
It is this double nature that provides fertile soil for inside/outside fallacies.
This assumes that people only break the law for high minded reasons.
The UN Charter forbids states to use military force except in self-defense or with the authorization of the Security Council.
Unlike the League of Nations, which expelled the Soviet Union, the UN does not, speaking generally, expel bad actors. Taiwan was a pussy cat compared to Mao's China but Taiwan was the only country to be expelled.
If the Kosovo intervention was legitimate, then any humanitarian intervention under similar conditions is legitimate.
If the Serbs had nukes there would have been no intervention. Ukraine's mistake was to get rid of its nukes.
In future cases, states that launch invasions will be able to point to Kosovo as a moral if not legal precedent, and be able to argue that since the Kosovo intervention was permitted, their interventions should be as well.
Why bother? Putin says Zelensky is a Nazi coz he is totes a Jew.
If the reason to avoid a legal precedent is that states can rationalize predatory interventions by pointing out similarities to past humanitarian interventions despite their different motivations, the same problem will apply to a moral precedent as well.
Rationalizations don't matter. Military interventions cost money and could cause, for Balance of Power reasons, a wider conflict such that the expected cost/benefit calculus changes adversely for the belligerent. It now appears that the 'War on Terror' benefitted Iran, the Taliban, and China most.
So while the legal system remains "pure,"
i.e. useless
the practical effect of its purity is nil. The rules of "legitimacy" or morality supersede the legal rules, reproducing the problem of ambiguity at a higher plane, and so one does not really escape the system; one just redefines it using different words.
The only way to 'escape the system' is to die. Most people aren't keen to do so any time soon.
An act that might seem obviously illegal under common law precedents may be deemed legal by a court that for policy reasons decides to overrule or distinguish those precedents.
Indeed, a test case may be brought for precisely this reason.
A lawyer advising a client who was thinking about embarking on this act would need to predict the court's ruling in order to advise the client, taking into account the policy considerations that might influence the court in a future case.
They may go further. Mahatma Gandhi was a lawyer who encouraged his people to break the law.
But international lawyers have resisted this understanding of change in customary international law, no doubt because they fear that this understanding would make it too easy for states to violate customary international law on the basis of pretextual justifications.
Not really. True, both the ICJ and ITLOS don't have a rule re. binding precedent, but as a 'subsidiary source' they are creeping in.
But then we are back to the fallacy, where one simultaneously insists on absolute compliance with the law
which doesn't happen in International law.
based on the premise that states act in a self-interested way, while encouraging states to deviate from bad law for public-spirited reasons.
States are encouraged to repeal bad laws, not deviate from them. Get rid of the sodomy ban, don't just deviate from it anytime POTUS meets up with the Chief Justice.
Across these examples, the common setting involves a system, that is, a group of agents who interact with each other according to a set of rules and produce some outcome.
The Justice system is different in that some of the agents get paid by the State. Others don't.
Someone standing outside the system (for example, an academic) proposes a theory as to why the agents interact as they do, observes that the outcome is socially undesirable or suboptimal in some way, and then makes a normative proposal as to how the agents should change their behavior so as to improve the outcome.
If that person's recommendations are accepted then he may become an 'insider' whose writings are cited in legal arguments or even in Court judgments.
The classic example is Madisonian judging. The analyst first argues that branches of government or the officials within those branches seek to maximize their power (the behavioral premise)
in which case the President would want to turn into a King while SCOTUS would try to turn itself into a Star Chamber without any 'due process' or transparency or accountability. Meanwhile the Speaker of the House should try to overthrow the Government and usurp power.
and then argues that judges should maintain a balance of power between the executive and the legislative branches (the normative proposal).
Judges can do nothing if the Legislature chooses to be subservient to the President or vice versa.
The contradiction is that if judges too maximize their power, then they will have no reason to produce a socially desirable outcome except in the event that the socially optimal outcome results from their power-maximization-in which case there is no reason to make a normative argument (except insofar as the analyst can give the actors advice or information about how best to pursue their own interests, an exception to be discussed below).
This is foolish. Judicial overreach could trigger the appointment of a Judicial Reform Commission which might set a mandatory retirement age or apply other sanctions.
A variation arises when an agent within the system makes the proposal. As we have seen, judges make the same Madisonian argument, first citing Madison for the proposition that branches or officials are power-maximizers
Madison never said anything so foolish. With power comes responsibility. The more you have, the more people blame you for anything that goes wrong in their life. The other problem is that assassination tends to temper autocracy. America has always had a lot of gun-owning maniacs.
and then arguing that they should balance the power of all branches rather than maximize the power of their own. The contradiction here is more acute than in the case of the analyst. For here, by accepting Madisonian premises, the judges are saying in effect that they are maximizing their power, even while they claim that they are acting in the public interest.
Judges only have the power to uphold the law. True, their judgments may create precedents which have the force of law. But they must be judicious in doing so for fear of triggering a bigger backlash from the Legislature.
External analysts might be making inconsistent assumptions but they are at least not refuting their own claim to sincerity.
They may be completely sincere and completely bonkers.
Another set of examples involves agents who seek to cabin the effect of their actions, in violation of the underlying rules of the system.
A good example of this is the principle of 'halachah vein morin kein' in Jewish law whereby knowledge of a precedent forbids the very action it would otherwise dictate. Yet, nothing is to stop such a person acting in that very way because G-d possessed them and compelled the action. Equally, some other legal principle may counsel the same action.
If people act on the basis of predictions as to how judges will make decisions, then judges cannot simultaneously make a decision and claim that it will not be repeated in the future.
No. People understand that those same judges will refuse to follow the precedent they say should not be a precedent. But other judges may do so. It's like I might say 'I'll never get drunk at the office party again. I really didn't want everybody to know I have a needle dick.' This does not mean I will object to others getting drunk and taking off all their clothes at such events. Indeed, the thing may become a tradition such that the new janitor is obliged to get drunk and wave his dick around.
Here, judges implicitly admit that people will be influenced
by their decisions, while attempting to assert that they should
not be influenced by their decisions.
Very true. I was influenced by other people who habitually consume alcohol. It is they who are at fault if I got naked at the office party and waved my tiny todger around.
Similarly, when constitutional and international law change, agents are simultaneously
arguing that everyone should follow the law and that a particular form of lawbreaking is justified because of its socially beneficial effects.
Your honor, their were mitigating circumstances. I'm a strict teetotaler but I felt I had a moral responsibility to protest against what is happening in the Middle East by taking off my clothes, waving my tiny todger around and pissing in the punch bowl. Also I shouldn't have punched my boss though she really is an evil cunt. She should have retired once she turned 85. I get that, as a Holocaust survivor, she had a personal reason for starting up the Charity at which I was formerly employed but, seriously, guys, have you seen what Netanyahu is getting up to? Should we really be sending Gandhian protestors like myself to jail when so many trillions of Palestinians are being raped and murdered by elderly Jewish women?
From an external perspective, people follow the law;
from an internal perspective, people should disregard the law
when an emerging new law would be superior.
No. The external and internal perspective coincide. People should disregard or repeal bad laws.
As we have seen, the literature on the determinacy paradox in welfare economics makes the same point, although in other settings. We understand the determinacy paradox
i.e. the notion that there is already an equilibrium carve out of economic rent and thus there is no point saying policy makers should do something different. This would be like a zoologist whose theory explains why tigers are carnivorous also spending time lecturing those animals on the benefits of a vegetarian diet. But this isn't a 'paradox'. It is just human psychology. The zoologist reduces cognitive dissonance by simultaneously theorizing why some beasts eat other beasts while affirming that no such thing would have occurred in the garden of Eden. As a matter of fact, it may be possible to find purely vegan substitutes for the meat which is fed to zoo animals. I don't eat vegans myself. They make me gassy.
to be analytically coterminous with the inside/outside fallacy;
which is just part of human psychology. We may really like being alive but have to accept we will die. Thus we might say 'this world sucks. Our next life will be better coz God is really nice.'
For positive economics, as Bhagwati suggests, 'free-trade' with political science may lead to normative economists- like Sen, whom Bhagwati hates- becoming unemployed. In other words one could have an expanded general equilibrium theory which includes rent-seeking behavior or 'directly unproductive profit-seeking' activities.
these are different ways to describe the same problem. We prefer the latter description because it underscores that, in such cases, the analyst confuses internal and external perspectives-traditionally a central issue for legal theory.
But both perspectives are brought together by the notion of 'public interest' or (in India, Pakistan, etc.) a 'basic structure' doctrine.
From the external perspective, the analyst seeks to explain the behavior of agents inside the system.
But the 'inside perspective' has a notion of wrong-doing as well as 'agent principal hazard'.
From the internal perspective, the analyst takes the viewpoint of the agents and asks how the agent should behave so as to improve outcomes. If the external perspective is correct, then it is hard to see how agents will act any differently from the way they do, in which case they will not heed advice as to how they should change their behavior-except insofar as the analyst can offer instrumental information or tactical advice about how actors should best pursue their interests.
Nothing wrong with that. Show how the cake can be made bigger and you gain the attention of those who are competing for a bigger slice.
The analyst should propose that the rules of the system be changed, not that agents within the system change their behavior; and the analyst must then confront the further question whether any relevant actors have both the capacity and motivation to change the rules of the system.
So this is 'mechanism design' for 'mechanism design'. Nothing wrong with that. As a matter of fact, economists from the time of Ricardo have taken account of 'political science'- i.e. coalition formation on the basis of economic interests. This might extend to allying with 'single issue' voters.
If the internal perspective is correct, however, then the behavioral premises of the external perspective must seem wrong or at least questionable.
Those premises are elastic. The fact is 'the public interest' is part and parcel of our own selfish interests. If the economy goes down the toilet or the country gets invaded, even 'insiders' may have to emigrate or take a haircut.
It is not possible to avoid the methodological problems by characterizing arguments of this sort as "ideal theory."
Not in Econ. The production production frontier represents the highest mix of outputs a Society can attain with existing technology and resources.
In these arguments, the very problem is that the analyst combines ideal with nonideal theory in an inconsistent fashion.
I don't understand this. It is obvious that existing arrangements afford opportunities for 'Pareto improvement'. One way of doing this is through 'public signals'- including laws of various sorts.
The analyst attributes nonideal motivations to the agents or actors within the system for purposes of diagnosis, and then attributes idealized motivations to those same agents or actors for purposes of advice giving and prescription.
The Doctor may be motivated by money but, for prudential reasons, may desist from prescribing in an unethical manner. She may lose her license or end up in jail.
Either an ideal or a nonideal approach would be coherent taken by itself, and applied consistently to both diagnosis and prescription, but the combination falls between two stools.
So long as some people get paid for scolding Society, fuck stools, there will be comfy Chairs in Ivy League Universities for useless tossers like Sen who got a Nobel for being a brown 'Mother Theresa of Economics'.
Are there ways out of this methodological dilemma? We can think of four. Aligning the perspectives. One solution is to stipulate that people in the system have the same public-regarding preferences as the outside analyst.
Why not also stipulate that they all fit into the same pair of underpants?
Consider a theory of judging, according to which judges are assumed to have public-regarding preferences, and the outside analyst appeals to those preferences in the course of urging judges to improve the law, constrain the executive, or take any similar action. Judges would no longer be able to cite Madison. Instead, they would simply assert that they can maintain the balance of power between the executive and the legislature because they, unlike the political branches, have the proper incentives.
This assumes POTUS is always screaming and soiling himself because Congress is being mean to him or vice versa. The Bench does have a responsibility to check the constitutionality of various laws and administrative practices. However, they can apply a less stringent type of scrutiny and interpret 'the public interest' in a more permissive manner. SCOTUS has just overturned Chevron. It looks as though Federal regulators are going to be on a tighter leash. The problem is that if Harris becomes President she might pull the trigger on judicial reform. Arguably, she would have that mandate more particularly if she wins big.
A more modest and plausible version of this argument is that even if judges do not have perfectly public-regarding preferences, the norms of judicial practice are different from those that govern legislative and executive behavior. Perhaps judges internalize the principle of judicial neutrality or fear reputational sanctions from the legal community, or from the public.
For SCOTUS the danger is Judicial Reform such that a mandatory retirement age is imposed.
Even though officials who appoint judges (or the voters that elect them) may have partisan motives for choosing particular judges, everyone may expect that, once in office, judges will respect norms of neutrality, at least to a greater degree than other political agents would.
At one time, this may have been a reasonable expectation. The question is whether the threat of Judicial Reform can act as a check upon an ideologically driven SCOTUS.
Thus, judges are receptive to public-regarding arguments made by outside analysts, at least some of the time. Both of these arguments avoid the inside/outside fallacy, but that does not mean they are correct. The first argument ignores the massive literature on judicial behavior, which provides empirical evidence of ideological or strategic judging at least on the margin.
I think SCOTUS thought it had a mandate to decide 'wedge issues' in one way in the Sixties and Seventies but that there was a 'Federalist' pushback which gathered momentum such that the Bench moved in the opposite direction. Take the case of Clarence Thomas. For a long time people wrote him off as a dim and silent bum. Then, quite suddenly, he came into his own.
The second argument incorporates that literature but in an ad hoc way. Indeed, the literature suggests that judges are most likely to be ideological in high-stakes cases
they are 'high stakes' because they are ideological
and among the high-stakes cases are those in which judges are called on to arbitrate disputes between the executive and legislative branches.
They each have sanctions of their own against each other. Impeachment is the go
Our point, however, is not that it is empirically impossible
for judges to act neutrally; it is, rather, that scholars typically
fail to make well-thought-out empirical assumptions.
So what? They are stupid. That's why they are 'scholars' rather than movers and shakers.
They instead proceed with unconscious assumptions about judges standing outside the system, assumptions that are inconsistent, or at
best not obviously consistent, with other assumptions those very
scholars make about the incentives of other officials.
I suppose the issue of the Bench's partisanship was a lot less salient when P&V wrote this. We now see that there has to be a check on the Judiciary. Perhaps, if Harris gets elected, a Judicial Reform Commission will get rid of life-time tenure or provide for an expanded constitutional bench which includes additional Judges who serve fixed terms.
.
Or consider yet another approach, according to which people
are "normally" self-regarding or power-maximizing but on occasion can be roused to take public-spirited action. Suppose, for
example, that people act in a self-regarding way 95 percent of
the time, and in a public-spirited way 5 percent of the time.
I suppose there are existential threats which compel public-spirited action at least some of the time.
One
might then argue that the analyst who assumes that people are
self-regarding but makes public-spirited proposals is on firm
ground, as even if the recipients of the argument ignore them 95
percent of the time, at least 5 percent of the time they will advance the public good.
The problem with this argument stems from the theory of
the second best, which we mentioned earlier.
I don't see how. The second best theorem says that market failures may cancel each other out. Thus, normally a monopoly is a good thing but, if we are dealing with a demerit good it might be better not to break up the monopoly. But this relates to market transactions not political or judicial decisions unless they are literally for sale. In that case, we might say it is better that officials get bribed to permit economic development rather than prevent development by rigidly applying stupid laws.
Consider the Madisonian theory, where it was regarded as urgent for judges to
maximize power
No. Judicial review is about preventing dispersal of political power. Obviously, if judges surrender judicial power, they can't perform this function. But this does not mean they can usurp Executive or Legislative power though it may appear that this is not always the case. Currently, Americans have to decide whether SCOTUS has overstepped its authority. Trump says no. This is about State's Rights. If a particular State wants abortion, they can have it. Harris says that this is the thin edge of the wedge. SCOTUS wants you to suffer incessant incestuous rape with the result that you will spend your life giving birth to deformed babies which you will be obliged to look after.
so as to oppose self-aggrandizement by the executive and legislative branches. If the Madisonian theory is
correct, then judges should power-maximize even in the periods
in which they are public-regarding-that is, public-spirited motives should cause them to act as if they were powermaximizing.
But, if they overstep the mark, the President will use ordinances while Congress may passJudicial Reform legislation.
In other contexts, there are other problems. Under
Professors Pildes and Levinson's theory, for example, we would
need to address all kinds of empirical complexities-whether, for
example, legislative and executive officials sometimes act in a
public-spirited way, and how that should affect the actions of
judges. We would need to explain why the balance of selfish and
other-regarding behavior exhibited by public officials favors the
Pildes-Levinson prescription (strict review by occasionally public-regarding judges of normally self-interested legislation when
government is unified) rather than the opposite (deferential review by occasionally self-interested judges of occasionally public regarding legislation when government is unified).
It is only worth 'addressing' problems with a theory if it has predictive power. Pildes/Levinson are merely saying that political parties matter. 'Separation of powers' does not. Thus has it always been. Still, we must admit that within any political party there will be some who worry about 'dispersal of power'. You may belong to the ruling party in your State while still being at the sharp edge of overzealous regulators.
As before, we
do not deny that some theory, some just-right stipulation of
premises, could revitalize these arguments; our point is that the
authors do not supply such a theory.
Sadly even Professors can't talk endless nonsense.
Another escape from the dilemma is to assume that people can temporarily exit the system for the purpose of evaluating and revising it.
Comparative jurisprudence does indeed look at different systems from 'outside'. The problem is that something which works in one place may not do so in another.
International law demands compliance from states,
In the sense that hobos demand beejays from super-models.
but from time to time states can disregard this demand so long as they take the proper attitude toward it, for example, one of disinterested criticism in the spirit of international cooperation.
No. States can tell 'International law' to go fuck itself. The US never admitted jurisdiction of the ICC and Trump withdrew from ICJ though it remains part of the Vienna Convention.
The analyst cannot influence judges within the system but can advocate a change in the rules of the system.
Judges can be influenced just like normal people.
A flavor of this idea can be found in Professor Bruce Ackerman's theory of constitutional moments, according to which constitutional change can take place outside the formal channels of amendment when the public is aroused by events and attentive to constitutional issues.
Sadly, 'hard cases make bad laws'.
Lawbreaking during extraordinary moments does not degrade the law during normal times.
But those extraordinary moments may become routine. Indeed, Revolutionary terror can turn into something greyer, more hideous, and seemingly eternal.
Within-system behavior occurs during normal times, when agents are assumed to act in their self-interest; outside-system behavior occurs during emergencies or other special periods, when agents are willing to act in a more public-spirited fashion.
Or they simply go crazy and stay crazy till, in a lucid spell, they decide emigration is the better option.
This approach avoids the inside/outside fallacy but at the price of invoking a deus ex machina. How exactly are people able to extract themselves from the system?
By making comparisons with similar countries which aren't going down the toilet.
A more satisfying account is one that explains how people are capable of acting both normally and extraordinarily.
There are collective action problems which most of us are hardwired to approach in a non-sociopathic manner. However, the leadership role may be taken by a sociopath.
One might argue, for example, that the small-c constitution (or body of international law) accepts lawbreaking that is subsequently validated by popular (or sovereign) consensus.
A law which is not enforced is no law. However Griswold v Connecticut was brought because of the dissenting opinion in Poe v Ullman which dismissed a challenge to law relating to contraception on the grounds that the case wasn't 'ripe'- i.e. no charges had been filed. The result was, as Robert Bork complained, that a constitutional right to privacy was created.
But this is just an awkward way of saying that such lawbreaking behavior is not lawbreaking at all, or is so only contingent on subsequent events turning out in a certain way. This approach forces one to confront clearly the risk that the inside/outside evasion was meant to avoid in the first place: that once people accept that lawbreaking may be normatively justified for consequential reasons, the law loses its authority, and people break the law more often for bad reasons than for good reasons.
There is a wide difference between refusal to prosecute and the repeal of a particular law. True, sometimes there is a 'slippery slope' to anarchy and sometimes that isn't the case. Law enforcement may have to pick its battles.
One can, as noted, also argue that any agent can advocate a
change in the system itself. A judge might argue that current incentives for judges are bad and therefore the constitution should
be changed. Many judges and other commentators make just
this argument about, for example, judicial elections or lifetime
tenure. But while this approach is superficially attractive, it
does not really overcome the underlying difficulty.
Which is that it is difficult to hire analysts from galaxies far far away.
If, for example, tenure enables judges to indulge their ideological preferences, then why should we expect them to do anything different
if they participate as citizens in the process of constitutional reform?
Judges have a vote same as the rest of us.
Won't they pursue constitutional rules that benefit them
even more?
Judges are few. The public is many.
Again, one must assume that during temporary periods agents can somehow overcome the incentives that animate
them during "normal times."
I suppose this is what happened during COVID. We all put up with all sorts of restrictions because, to be frank, we were frightened of dying. Also, I was sure, I'd come back as a zombie. Not one of those cool zombies who eat brains. I'd be one of those weird zombies who insist on chowing down on pancreas. I'm not quite sure what pancreas are but I do know there is a Christian Saint named Pancreas who is also a railway station. That's just messed up.
Perhaps that is true, but the assumptions underlying the claim must be carefully spelled out to
avoid the dilemmas we have mentioned.
also, don't eat railway stations even if they are Christian Saints. If you must be a zombie, be a normal brain-eating zombie.
The ad hoc stipulation. In Justice Jackson's opinion in Korematsu, and the per curiam opinion in Bush v Gore, the ad hoc
stipulation is used by an agent inside the system to attempt to
cabin the precedential effect of its behavior when it purports to
act outside the system.
I think, the effect was to restrict the application of strict scrutiny in the former case and to forestall a whole host of 'Equal Protection' based challenges to existing electoral laws in different States.
Justice Jackson purported to act outside
the system by claiming that a decision favoring the military
should be rendered so as to avoid establishing a precedent.
Actually, the effect would have been to massively increase the burden on the Judge Advocate General.
The
per curiam opinion in Bush v Gore purported to act outside the
system by asserting that a decision that would normally have
precedential effect would have no such effect.
In other words, the circumstances were unusual. SCOTUS decided there was no way Florida could do the recount in a fair manner within the required time frame.
Consider the theory that the Bush v Gore decision was a
kind of judicial coup d'etat.
The Dems were welcome to suggest this but it made them look like sore losers. Maybe if Jed Bush had refused the recount, they would have got some mileage out of this.
The court stepped outside its normal
role as constitutional adjudicator in order to hand the election to
Bush, or at least ensure that he would not lose on a recount.
I suppose Jed Bush and the Florida Court was aware that 'Equal Protection' could be pleaded because, for historical reasons, different counties in Florida had different counting rules.
Taking the most sympathetic view to the majority, we might
suppose that the court acted properly either to avoid a constitutional crisis or to prevent the Florida Supreme Court from
throwing the election to Gore.
Unless the fix was already in and SCOTUS saved Florida the embarrassment of having to stand by a tainted recount.
We might read the majority as
stipulating that it will act again only in a crisis-that is why it
would be improper to read the equal protection holding as precedent for future "normal" cases. But it could not say so explicitly without risking its own credibility-perhaps, people would accept the
Court's resolution of the crisis only if they believed the equal
protection rationale.
Could the case have been decided the same way on the basis of anything other than Equal Protection? Perhaps it could have done so on Article II jurisdictional grounds as suggested by Scalia. But once Equal Protection was made the ratio it became fair game for lower courts. SCOTUS itself only referred to Bush v Gore twice before 2020. Then with the possibility that Trump might be in the same position, suddenly Gorsuch, Kavanaugh & Alito started bringing it up.
If all this is true, one might interpret the inside/outside fallacy not so much as a logical conundrum as an illustration of the
constraints of public reason
SCOTUS ensured that America had a President who could take power at the appointed time. That was its job. Scalia thought that 'Equal Protection' was 'a piece of shit' precisely because it would open the door for lower courts to do things helpful to the Dems. In other words, there was no 'logical conundrum'. There was either a piece of shit or else a smaller piece of shit than would have been the case if Scalia's suggestion had been adopted.
It may be that public officials can
leave the system; the problem is that they cannot say they are
doing so without subverting their goals.
Judges are welcome to say that a thing isn't justiciable for some reason or another. The reason you can't have 'logical conundrums' in Jurisprudence the Law, in its totality, has no representation as a deontic logic. There are too many degrees of freedom. On the other hand, it is 'buck stopped' in a way that mathematicians might envy. SCOTUS gets paid to do the buck stopping and what matters is that it does so promptly, not whether it makes the best possible decision it could make.
The two international
law examples also illustrate this idea: states publicly declare
their allegiance to international law
just as Mafia bosses describe themselves as law-abiding businessmen
and then argue that law violations represent extreme and unrepresentative deviations that
are confined to their facts,
Your Honor, I killed the little old lady in self defense. I personally buried her so as to spare her Estate the cost and inconvenience of a proper funeral. I was planning to hand over her valuable jewelry to her designated heirs. Sadly, the Police beat and sodomized me before I could carry out my benevolent intention.
as lawyers would say, and do not undermine the system of international law itself.
Crimes don't undermine 'the system of the law' per se. It is law enforcement which is at fault if crime goes unpunished. The problem with International Law is that it has little in the way of powers of coercion.
The noble lie,
which we discussed in the context of Professor Issacharoff and
Pildes's defense of authorizing statutes, is a version of this problem.
Legal fictions are fine. As for lies, the notion that God is on the side of Justice is noble enough. It isn't really the case that 'the Son of Man' is a fan of Charlie Manson.
It seems to us questionable that noble lies can be maintained for any period of time,
The history of organized religion suggests otherwise.
especially in the case of international relations where states are both the speakers and the
audience; and it is difficult to defend them in a democratic system.
Defense worth a damn costs a lot of money.
Producing information. The most coherent and intellectually satisfying response to the inside/outside fallacy is to cut back
on the ambitions of the analyst.
Concentrate on learning to tie your shoe-laces.
Rather than claim (for example)
that agents are self-interested and that nonetheless they should
heed the analyst's public-spirited advice, the analyst can limit
himself to advice that agents will follow because it advances
their self-interest.
Why not do mechanism design instead? That's what the smart kids are doing. Also, they can wear proper lace-up shoes- the show offs!
For example, without succumbing to the fallacy, an analyst could instruct judges to neutrally balance the
executive and legislative branch, because if they instead followed the Madisonian prescription of expanding their power,
they would lose public support.
Sadly, Judges think they are smarter than 'analysts' who seek to instruct them- at least in the UK.
Power-maximizing judges
would heed the analyst's advice because it turns out that the
best way to maximize (or at least, maintain) their power is to
serve as honest brokers.
The main problem with this approach is the analyst's ability to
make public-spirited advice may be scaled down to such a degree as to cease to exist altogether.
Judges read the papers same as everybody else. A well written op-ed might catch their attention even if it is written by a Professor.
The opportunity to make such advice depends on a happy confluence of events-where it turns
out to be in an agent's self-interest to act in the public interest,
and, for whatever reason, the agent is unaware of this fact.
I imagine that Judges who make great decisions gain acclaim within the legal community. Some- like Britain's Lord Denning become legends in their own lifetimes.
Still,
it is easy to think of examples. Academic experts in constitutional design may be able to supply local actors with useful comparative information when those actors are engineering a new
constitution.
Constitutions don't matter. Amendments do.
Critics of the Bush administration's torture policies argued, among other things, that torture is self-defeating
because it causes the subject of interrogation to lie, or because
any advantage is offset by harm to the country's reputation.
America, at that point in time, wanted the reputation of kicking ass harder than a bunch of towel-head sand niggers. Torture has the great advantage of creating terrorists where none existed. Abu Ghraib led directly to ISIS. If anybody will push back against Iran, it is the crazy Sunnis.
All rule-utilitarian arguments have a flavor of this approach. An
act that benefits society in the short-term has negative long-term consequences; therefore, the government should comply
with a rule that forbids such acts, despite the sometimes overwhelming temptation to the contrary.
The problem is that 'utility' changes over time. Torturing Muslims made Americans feel good at one time but then people woke up to the fact that it costs a lot of money. People would have felt differently if Gulf War 2 had turned a profit.
The role of the analyst is
merely to remind the government of those long-term consequences, or to propose ingenious mechanisms of self-binding
that will allow officials to pursue their enlightened long-run
self-interests, rather than short-run interests.
Also it is important to remind the government to brush its teeth and wipe its bum.
The most important version of this approach is the argument that a legal or constitutional reform will produce a Pareto superior allocation of resources.
In which case there would be no need for a 'legal or constitutional reform' because no one would object to a different interpretation of existing law. Suppose there is a law which orders all people who make miaow miaow noises to be burned at the stake. Getting rid of this law would be a Pareto improvement because nobody really objects to the practice. But so would not getting rid of the Law if it is never enforced or is interpreted to mean people who make miaow miaow noises should be allowed to purchase a steak for a ten percent discount on Tuesdays from restaurants which choose to participate in the scheme.
Consider, for example, frequent proposals to reform the filibuster, which can be used by
the minority party in the Senate to block legislation that it disapproves of.
Since 2013, there is a nuclear option. However Filibuster reform is not Pareto efficient because some lose so others gain. We may say it is 'Hicks Kaldor' efficient. The complicating factor is two-fold- firstly inter-temporal preferences may feature high discount rates. The other problem is 'regret minimization' which is better than expected utility maximization under Knightian Uncertainty. This creates a 'Chesterton's fence' type bias. Don't get rid of a fence which does not currently seem to be serving any good purpose. You may regret it later on. Knightian uncertainty means there could be catastrophic consequences we can't even imagine to quite trivial actions we perform unthinkingly.
Filibuster reform usually fails because the minority
party has no reason to give up this power to protect itself, and
the majority party wants to retain the filibuster so that it can
protect itself next time it is in the minority. The best proposals
for filibuster reform argue that, in fact, both parties misperceive their interests and would benefit over time if they can legislate
more often (even if one side loses) than if they cannot.
No. The fact is legislators sometimes have to vote for stuff which they don't want to see passed. Filibuster is a piece of theater which gives them an alibi. A lot of politics is stuff of this sort.
This
could be the case if, for example, gridlock in the Senate hurts
both parties and clears the way for the rise of a third party.
Which is great for splitting the other's side's vote or permitting a takeover of the party by crazy people.
Whether this is in fact true or not is an empirical question,
Sadly, it is speculative because it is strategic and the relevant decision space or pay-off matrix is anybody's guess.
but
at least the reform proposal does not fall prey to the determinacy paradox.
The axiom of determinacy only applies to two person games where each takes a turn and the underlying set is closed (or clopen). Politics is not a game of this sort. There are too many degrees of freedom. Everything is multiply realizable. Thus, there can be no 'determinacy'. True, we may say there is a linguistic paradox but we merely mean that we are using words or metaphors in an inconsistent manner. But this is always the case in imperative as opposed to alethic discourse. Mum might say 'if you climb that tree I will break your leg.' What she means is 'don't climb that tree because you may fall and break your leg.' Similarly we may say to our spouse 'Don't mail the check to the insurance company. Just make sure to burn down the house before you leave for work.' This may appear to be 'Ross's paradox' but it really is no big deal. Quantum Physics or Set theory might have paradoxes. The Social Sciences- if mathematicised- may have intensional fallacies arising from treating something which isn't a set or a function as if it were indeed a set or a function. Politics or the Law have no such things. True, at one time you had historicists of various sorts who believed the future was already determined. The victory of the Nordic race or the Proletariat or whatever was inevitable. But if it was so fucking inevitable why the big hoopla?
CONCLUSION
The inside/outside fallacy results when analysts or agents
do not think carefully about whether their normative proposals,
offered from an internal perspective, are consistent with their
empirical premises, offered from an external perspective.
Empirical evidence can be gathered by 'insiders'. Indeed, many countries have official bureaus of statistics. Public authorities may commission independent research. Even some academics may not be wholly useless. True, such research may be an excuse for inaction or doing stupid shit.
We do
not argue that the inside/outside fallacy-legal theory's version
of the determinacy paradox-is a necessary feature of academic
research, or of real-world systems where agents within a system
are expected to improve the system as well.
We can have 'mechanism design' which is 'self-learning' on the basis of a multiplicative update weighting algorithm. Things like periodic redistricting is an example. Perhaps something like this happens anyway.
Nothing in our argument is substantive, or empirical; we urge no particular assumptions about the behavior of judges or other actors. Rather,
our argument is about consistency.
Which is important in lower courts. But the Supreme Court can overrule itself.
The fallacy occurs again and again in legal scholarship,
not if it has a type theory. It's easy to get rid of inconsistency if you get to decide what types exist and what belongs to each.
probably because it is so difficult to reconcile the tradition of
providing normative recommendations to judges and legislators
with the behavioral premises of economics, psychology, and political science, which have had such great influence in the last
forty years.
Be selective in the junk social science you quote. There's plenty out there. Or don't bother. Fake news works even better.
If one can predict how judges will decide cases based
on exogenous factors such as the party of the president who appointed them, then what is the point of urging them to strike
down or uphold Roe v Wade on the basis of impartial legal considerations?
You may provide an opinion a dissenting judge relies on. Equally it some future date, it might become the ratio of an important case. My own claim that Veronia School District v. Acton obligates public schools to provide drugs to all students obliged to take tests has not so far found favor with SCOTUS but I live in hope.
To be sure, one might want or might not want to
supply them with straight-faced, legally respectable rationales
for the view they will want to adopt anyway, but that is a different sort of enterprise.
Because it might actually be useful.
Judges are not machines, and it is empirically possible that
they will be receptive to certain types of normative arguments,
as we have argued throughout. But then the analyst must be
clear that those normative arguments are not based on empirical premises that are at variance with the analyst's own assumptions about judicial behavior.
The thing with normative arguments is that we may accept them even from people whose 'empirical premises' are very different from our own. There are plenty of atheists who are moved by the Sermon on the Mount. There are African American jurists who accept arguments made by slave owning legal luminaries. We can't throw the baby out with the bathwater.
Once again, we are making a methodological argument about how legal scholars frequently
make inconsistent assumptions; we are not making a substantive argument that "all judges are political" or "all people act in
their self-interest" and therefore that it is never worth making
public-regarding arguments to them. And thus we are not condemning all legal scholarship, but simply urging scholars to be
aware of the way the inside/outside paradox demands greater
methodological clarity.
Legal scholars shouldn't bother with trying to influence judges or future judges. They should concentrate on criticizing each other's methodology.
It follows from what we have said that political science and
law may have less to say to one another than many constitutional theorists currently suppose.
Bhagwati came to the opposite conclusion.
Or, less pessimistically, talk
across disciplines constantly threatens to descend into incoherence unless the conversational parties are careful to tidy up
their premises.
I think the bigger problem is that such talk tends to be based on obsolete ideas more particularly because this makes it easier to teach or to give rise to an academic availability cascade.
The enterprise of explaining the behavior of actors from the external standpoint is difficult to combine in a coherent way with the enterprise of offering those actors sympathetic advice internal to the morality of the roles the actors
adopt.
Yet, Doctors do it all the time. They can see I am a fat slob because I'm greedy and lazy and as stupid as shit. Yet, they can point me to ways by which I can indulge my passion for food and watching TV while doing just enough exercise to stave off becoming a shut in.
At a minimum, analysts who speak both as political scientists and as legal theorists must be careful not to switch their
hats so rapidly that they end up attempting to wear two hats at
the same time.
Why not? Carl Schmitt wore both hats, not to mention a Nazi cap
The demands of intellectual coherence are that
legal theorists must make clear, at any given moment, whether
they are adopting an external or internal standpoint,
If these guys can spot them switching those hats then so can we. Intellectual coherence requires having an intellect.
and must
ensure that their assumptions about the motivations, beliefs,
and opportunities of relevant actors are consistent across positive and normative arguments.
My Doctor is positive I'm a fat slob and always will be. They can still make normative arguments for my going on a diet and taking more exercise. It turns out that Pizza isn't the only food. There's something called salad. Also, if you put your exercise bike in front of a big screen TV, you can pretend to be a hamster. Come to think of it, if I'd been to a Collidge which catered only to hamsters, I'd have been valedictorian. I've just Googled 'Hamster University'. It has a Facebook page but I've forgotten my password. Story of my life, really.
I suppose, in my own cute and hamsterish way, the point I'm making is that normative arguments create positional goods which can be redistributed so as to change the incentive matrix. Praise or blame create utility. But even absent the receipt of such praise or blame the mere possibility of receiving either alters the pay-off matrix. Just knowing there is a Hamster University where, had I enrolled, I'd have been valedictorian is enough for me to think that maybe I could to switch to a higher IQ field than Socioproctology.
