58 research outputs found
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Conventions in Court
In the Commonwealth nations, a constitutional “convention” denotes an unwritten but obligatory constitutional custom or norm. The question I will address is whether public law in the United States should be understood to permit, require or forbid federal courts to incorporate conventions into their decisions. My major claim is that public law should adopt an approach that has achieved consensus status in the United Kingdom and Commonwealth – what I will call the “modern Commonwealth view.” This approach holds that while courts may and should recognize conventions, they may not and should not enforce them. The main strength of the modern Commonwealth view is that it is not either of two other leading views, which I will call the “classical Diceyan view” and the “incorporationist view” respectively. I will argue that the two competing views are untenable and undesirable, and that the modern Commonwealth view triumphs faute de mieux – for lack of a better, or even any feasible, alternative. Moreover, I will claim that in important cases, especially recent cases, the U.S. Supreme Court has implicitly moved toward just this approach
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The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division
In the theory of constitutional and statutory interpretation, dynamic arguments point to the beneficial effects on legislative behavior that will result if "judges" or "courts" adopt a particular approach to interpretation. In this paper I claim that such arguments are conceptually confused, and thus do not count as valid arguments at all. Dynamic arguments commit the fundamental mistake of overlooking the collective character of judicial institutions - of overlooking that the judiciary, like Congress, is a "they," not an "it." That mistake produces the critical, and erroneous, assumption that coordinated judicial adoption of some particular approach to legal interpretation is both feasible and desirable.
That assumption commits two logical fallacies simultaneously. The fallacy of division arises when a claim that is true of, or justified for, a whole set is taken to apply to any particular member of the set. The fallacy of composition arises when a claim that is true of, or justified for, any particular member of a set is taken to apply to the whole set. Both fallacies infect dynamic interpretive arguments. First, the claim that a given approach would be best for the whole court or judiciary does not entail that it would be best for any given judge taken alone. The inference from the group-level claim to the individual-level claim fails if judicial coordination on a particular approach is infeasible or unlikely. Second, the claim that a particular approach is best for any given judge need not entail that it would be best for the whole court (or judiciary). If a diversity of approaches is desirable for systemic and institutional reasons, then it would be an affirmative bad for all judges to coordinate on a particular approach. To overlook the first point is to commit the division fallacy; to overlook the second is to commit the composition fallacy. The same reasoning applies from the standpoint of every judge in the system.
In the language of moral philosophy, dynamic theorists have overlooked essential questions of non-ideal theory, which asks what obligations people have when others will not or cannot comply with their (identical) obligations. In the language of economics and consequentialist political theory, the interpretive theorist has overlooked essential questions of the second-best, which arise when a general or collective equilibrium cannot be attained. It is an irony of interpretive theory that so much emphasis has been given to exploring the consequences of the legislature's collective character, while inadequate attention has been paid to the same problem in judicial institutions
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No
Philip Hamburger has had a vision, a dark vision of lawless and unchecked power. He wants us to see that American administrative law is “unlawful” root-and-branch, indeed that it is tyrannous -- that we have recreated, in another guise, the world of executive “prerogative” that would have obtained if James II had prevailed, and the Glorious Revolution never occurred. The administrative state stands outside, and above, the law.
But before criticism, there must first come understanding. There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target
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Optimal Abuse of Power
I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall.
There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about “private” misrule -- misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing power under the rules of the 18th-century common law of property, tort, and contract. The administrative state thus trades off governmental and “private” misrule. Second, the rate of change in the policy environment, especially in the economy, is much greater than in the late 18th century -- so much greater that the administrative state has been forced, willy-nilly, to speed up the rate of policy adjustment. The main speeding-up mechanism has been ever-greater delegation to the executive branch, accepting the resulting risks of error and abuse. Third, the costs of enforcing legal rules against executive officials are necessarily positive and plausibly large, in part because any institutional monitors created to detect and punish abuses must themselves be monitored for abuse.
The architects of the administrative state believed that a government that always forms undistorted judgments, and that never abuses its power, will do too little, do it too amateurishly, and do it too slowly. In that sense, the administrative state constantly gropes towards an institutional package solution that embodies an optimal level of abuse of power
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The Facts About Unwritten Constitutionalism: A Response to Professor Rubenfeld
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Introduction: Political Risk and Public Law
On December 15-16, 2011, Harvard Law School convened a conference on “Political Risk and Public Law.” A special issue of the Journal of Legal Analysis will be devoted to publishing papers on this topic by Jon Elster, Edward Glaeser, Eric Posner, Fred Schauer, Mark Tushnet, and myself. The overall aim is to introduce a new set of questions about public law and a new analytical framework for thinking about those questions.
The premise of the enterprise is that constitutions and other instruments of public law may fruitfully be viewed as devices for regulating political risks. Large literatures in law, economics, political science and policy studies examine first-order risks that arise from technology, the market, or nature. By contrast, constitutions and foundational statutes, such as the Administrative Procedure Act, may be understood as devices for regulating second-order risks. These are risks that arise from the design of institutions, the allocation of legal and political power among given institutions, and the selection of officials to staff those institutions.
This perspective employs the framework of risk analysis elaborated by many disciplines across the social and policy sciences. The framework promises new insights for public law. Constitutional actors have often spoken the prose of risk regulation without knowing it, offering arguments about constitutional and institutional design that implicitly posit second-order risks and offer institutional prescriptions for managing those risks. By bringing the analytic structure of those arguments to the surface, political risk analysis promises to allow a more intelligent description and evaluation of the major problems of public law
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A New Deal for Civil Liberties: An Essay in Honor of Cass R. Sunstein
A central, organizing motif of Cass Sunstein's work is the effort to spell out the consequences of the New Deal for American law. I suggest that anyone who shares Sunstein's premises can and should go even farther in this direction. The logical consequence of Sunstein's views is a New Deal for all civil liberties and personal liberties. Criminal law and procedure, and cases growing out of the Global War on Terror, should be approached through New Deal lenses. All civil and personal liberties will ultimately have to justify themselves at the bar of cost-benefit analysis. This essay is prepared for a symposium on "The Scholarship of Cass R. Sunstein" to be published by the Tulsa Law Review
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