My argument is in Slate.
Mitu Gulati, the world’s expert on the odious debt doctrine, writes in:
It is a treat to guest post here at ericposner.com. It is an even bigger treat to be invited to disagree with Eric on the pages of his own blog! Eric has been blogging about the Ukraine situation, but has yet to engage the question of what is to become of the Ukraine’s debt, a large portion of which is likely owed to Russian entities. Of particular interest are the debts owed by Ukraine directly to the Russian state. This includes Ukraine’s most recent Eurobond issue (December 2014) for roughly $ 3 billion that was purchased entirely by the Russian state as part of its subsidization of the prior Ukrainian regime.
However, Ukraine may have an argument for escaping liability on that last $ 3 billion (and likely more). That argument comes from an antiquated doctrine of international law, the doctrine of Odious Debts, that briefly got resuscitated about a decade ago in the context of Iraq’s post-Saddam era debt restructuring. The relevant bit of international law here is the doctrine of state succession. Under this doctrine, democratic governments that succeed dictators are not allowed to disclaim the debts of the prior regime, no matter how odious it may have been. There may be a narrow exception, however, for what one might call Corrupt Debts.
That is where the lender knew or should have known that the money it was lending was going to line the personal coffers of a state leader. There, the lender can fairly be said to have made the loan to the personal account of the corrupt leader, rather than to the state. In the case of Ukraine, the current regime has vociferously accused Mr. Yanukovych and members of his regime of stealing the proceeds of prior state borrowings.
Assuming that is true, it should not be difficult to argue that the Russian lenders knew or should have known of the kleptomaniacal tendencies of Mr. Yanukovych’s government. In that case, Uncle Vlad would no longer be able to collect from the Ukraine; instead, he would have to look directly to his friend, Mr. Yanukovych, for recovery of the $3 billion.
The case law is sparse. But there is a famous case on point, involving a 1923 arbitration between Great Britain and Costa Rica. Cribbing now from an article with the godfather of sovereign debt, Lee Buchheit, “The Dilemma of Odious Debts”:
In 1917, the government of Costa Rica was overthrown by Frederico Tinoco. Tinoco’s government lasted two years. Before he left the country, Tinoco borrowed some money from the Royal Bank of Canada. That money also left the country . . . in the company of Mr. Tinoco.
In a subsequent arbitration, Great Britain claimed that the successor government of Costa Rica was bound to honor the loans. US Supreme Court Justice (and former President) William Howard Taft refused to order Costa Rica to repay the Tinoco loans. These were, Taft said, not transactions “in regular course of business” but were “full of irregularities.” Taft explained that “[the] bank knew that this money was to be used by the retiring president, F. Tinoco, for his personal support after he had taken refuge in a foreign country. It could not hold his own government for the money paid to him for this purpose.”
Sounds an awful lot like Uncle Vlad’s purchase of Ukrainian Eurobonds a couple of months ago. The question may eventually come down to this — will the new administration in the Ukraine feel itself obliged, as a matter of law or morality, to repay a loan extended to a prior regime that they have already branded as kleptomaniacal by a lender (Russia) that they have already accused of lopping off a large part of Ukrainian territory (the Crimea) in violation of international law?
Eric, what do you think? You’ve been skeptical of the doctrine of odious debts in the past. Would you consider the scenario above to be an exception? One where that doctrine should apply to excuse the Ukrainians?
[Since you asked: Without knowing more facts, it is hard to know what will happen, but my guess is that Yanukovych skimmed off only a part of the proceeds, most of which ended up in the Ukrainian treasury—if so, the bill must be paid, while Ukraine would have a (no doubt unenforceable) claim against Yanukovych personally. – EP.]
No. The U.S. government claims that annexation would violate international law and the Ukrainian constitution because Ukraine has not given its consent to the referendum. But Russia is not bound by the Ukrainian constitution. Nor does any international law prohibit two countries from merging together.
The real question is then whether Crimea’s secession–which you might think of as a legally separate act that (conceptually) precedes the annexation–violates international law. As I explained before, there is no law against one territory seceding from another. In fact, the right to self-determination is enshrined in the UN charter and several human rights treaties. Ukraine could certainly try to stop its territory from seceding–just as the United States fought to prevent the South from seceding–but if it fails, it can’t complain that the secession violates international law. Ukraine’s best argument is that the secession was driven by Russian meddling–Russia’s invasion of Crimea did violate international law, and the occupation violates Ukraine’s sovereignty. But if the referendum is free and fair, that argument will lose much of its force. Perhaps, Ukraine is owed some remedy by Russia (good luck), but that remedy could not be an injunction on Crimean secession, which would injure the Crimeans themselves.
U.S. officials note that Scotland’s secession vote was approved by the UK government. But the more pertinent analogy is Kosovo. Kosovo’s declaration of independence was not approved by the Serbian government. Kosovo’s secession was abetted quite significantly by the United States through military and diplomatic means.
In our last class, we discussed Jack Balkin’s paper, Why Are Americans Originalist?, which I interpret as a sly debunking exercise. Balkin’s most interesting argument is that the turn to originalism in the 1980s was akin to Martin Luther’s repudiation of the Catholic Church’s monopoly over Biblical interpretation, with the Supreme Court playing the role of the Church. (You might think of the habit among libertarians of carrying around a pocket-sized constitution as the modern version of biblical translation into the common language.) Originalism is a political strategy that became attractive because the founding-era meaning of the text coincided (very roughly) with the political goals of conservatives while at the same time appealing more broadly because of the patriotic, anti-elitist message that the Constitution contains the wisdom of the founders and we can all read the Constitution for ourselves. The students were pretty skeptical.
But I do sympathize with conservatives of the 1970s and 1980s who saw the Warren Court as an ideological apparatus, and were contemptuous of the law professors at the time who sought to rationalize its liberal holdings with phony constitutional theories. The problem was that the alternative they came up with rests on a mythical self-image, or at least encourages people to treat mythology as fact, with all kinds of weird consequences for constitutional law. It’s as if the Germans repudiated their Basic Law and decided to derive constitutional norms from the myths of the Nibelungen. Or–to be fairer–from whatever archaeological research might reveal about the customs of Germanic tribes at the time of Tacitus.
We polled students again–they polarized, which makes sense since they are more informed about what originalism means now than they were at the start of the course. But it bodes ill for the project of originalism itself since originalism can prevail only if that is what the people want.
The Crimean parliament has scheduled a referendum for March 16 asking whether Crimea should secede from Ukraine and join Russia. From the standpoint of international law (Ukrainian law may be different), it is not illegal for a territory of a country to attempt to break away and form a new state. But there is a great deal of controversy over when a breakaway territory should be considered a state, which entitles it to enter treaties, join the UN, and so on. One view is that Crimea becomes a state just when other countries regard it as a state. So even if Crimea achieves de facto independence and has a government that controls it, the United States and other countries could block it from being a state just by refusing to recognize it as a state.
On another view, a breakaway territory is lawfully a state based on objective facts–basically, whether it has a government that controls the people who live on it, and is not itself subject to a superior government, as in a federalist system. In practice, these two views tend to converge. Sooner or later, foreign countries will recognize a de facto state as a de jure state because if they want to deal with the people who live in the territory (for example, trade with them), it must go through their government. That’s what happened with East Germany, for example. The west refused to recognize it as a state for many years because they considered its creation illegal but eventually gave in.
In the Crimea case, there are a number of relevant considerations. Favoring secession, one can point to the fact that the Crimea has long enjoyed a great deal of autonomy from Ukraine; that Crimea has long been part of Russia (or the Soviet Union) and was handed over to Ukraine only in 1954; and that, if the referendum succeeds, then the Crimean people themselves wish to secede.
Going the other direction, Crimea is currently occupied by Russian troops, and the question of secession was (as far as I know) put on the agenda only because of Russia’s illegal intervention. Unlike places like Quebec, the Basque Country, and Scotland, the question of secession is entirely new; there was never a live secession movement that sought reunification with Russia. Ukraine itself does not appear to favor secession of Crimea. The world ought to be skeptical about the Crimean Parliament’s intentions, but if a fair referendum is held, and there is overwhelming sentiment in favor of unification with Russia, then a major geopolitical victory will be within Russia’ grasp.
Update–maybe for this reason, President Obama has declared that the referendum would violate international law. On what basis? Perhaps that it would violate Ukrainian sovereignty, especially if the Russians are behind the scenes. But it wouldn’t be a violation of international law for Illinois to hold a referendum on whether to secede from the Union, and so I don’t see how it could be a violation of international law for Crimea to vote to secede.
1. Douglas Cox discusses the Panama analogy.
Consent was a central U.S. justification for intervention in Panama that was just as, if not more, thin than the paper on which Yanukovych’s invitation to Putin is written. The U.S. position was that it had never recognized the Noriega regime as the legitimate government in Panama and, just before Operation Just Cause began, the U.S. government purported to swear into office — on a U.S. military base — Guillermo Endara as the President of Panama, who then invited U.S. forces into his country. As the U.S. Army’s Law of War Manual later described “concurrent with the invasion, Mr. Endara was sworn in as President of Panama in the U.S. Southern Command Headquarters one hour before the invasion occurred; forces were already airborne en route” (see p.82).
2. Ryan Goodman argues that Ukraine should join the ICC because that will deter Russian troops from committing war crimes on Ukrainian soil, assure the Russians that the Ukrainian government will not massacre ethnic Russian civilians who live in Ukraine, and provide a forum in case the legitimacy of the Ukrainian government is ever questions. But ICC involvement so far has made governments pretty unhappy–countries that have invited it in and western governments who dislike its interference. The institution is too new, too unpredictable, too hard to control–and it eliminates the valuable option of amnesty. An ICC prosecution of, say, a Russian soldier who was captured in Ukraine and sent to the Hague would create a completely unnecessary global crisis.
Russia’s UN ambassador, Vitaly Churkin, apparently cited a 1997 treaty between Russia and Ukraine as a source of authority for Russian troop movements in the Crimea:
We have an agreement with Ukraine on the presence of the Russian Black Sea fleet with a base in Sevastopol, and we are acting within the framework of that agreement.
The treaty, called Agreement Between the Russian Federation and Ukraine on the Status and Conditions of the Russian Federation Black Sea Fleet’s Stay on Ukrainian Territory, was extended in 2010. Through the heroic efforts of the University of Chicago law librarian, Lyonette Louis-Jacques, I have gotten my hands on an English translation of that treaty. (The Russian version is available on the web, and you can use Google translate on it if you dare.)
As has already been reported, the treaty unsurprisingly does not give Russia the authority to conquer the Crimea. Nor does it give Russia the discretionary authority to move troops around the Crimea. It gives Russia the authority to locate troops on its bases in the Crimea, and to move them between those bases and Russian territory. But the troops must follow Ukrainian law and respect Ukrainian sovereignty. I paste some of the relevant articles below.
Taken from J.L. Black, ed., Russia & Eurasia Documents Annual 1997: The Russian Federation, vol. 1, p. 129 (Academic International Press, 1998).
Will Baude says there is:
At an empirical level, I think it is certainly possible for constitutional change to occur through mini-revolutions or political evolution. But there remains the question of one, whether those changes are valid under our current legal rules, and two, whether they really occurred. I would say our current legal rules honor an important relevant principle in the text: government agents are not authorized to make constitutional change. They take an oath, and it is an oath to apply “this Constitution” that we have, and that reflects an important limit on the power that we the people have delegated to them. The people may well have a right to ignore the Constitution, but the government officials who happen to be their agents do not.
I can’t make sense of this passage. How can constitutional change through a mini-revolution or political evolution occur and not be “valid under our current legal rules”? Doesn’t constitutional change of this sort just mean that the rules aren’t valid or are incomplete? Isn’t that what happened in 1789? No one cares that the 1789 text is invalid under the Articles of Confederation.
Will then goes on to make a distinction between the “people” ignoring the Constitution and government officials. But this brings us back to 1789. Should government officials have declined to obey the 1789 text because they are “officials” rather than “the people”?
It may be that Will is focused on government officials acting without the people’s blessing. But what if they in “good faith” (quoting Will again, as he suggests in another passage that justices act in good faith) believe that the people have chosen to change the Constitution? Aren’t they then obligated to defer to the will of the people? And note on this view limited government prevails: government officials can change the Constitution (or, I would say, recognize a change in the Constitution) only if they believe in good faith that the people have changed the Constitution. The oath clause argument is circular: the question is whether it refers to an unchanging text or evolving norms.
Will’s first sentence is a large concession that is hard to square with originalism. Even if he thinks that no such evolution has occurred, he seems constrained to acknowledge that if it can occur, justices and other government agents should be on the lookout for changes in the people’s constitutional understandings, and should act accordingly if such changes occur.
Source: Kristian Skrede Gleditsch & Steve Pickering, Wars Are Becoming Less Frequent (2013).
Burcu Bayram at Duck of Minerva echoes Peter Spiro’s skepticism about my skepticism:
Yet mere breach does not mean international law is epiphenomenal. The international community has condemned Russia’s action. Sanctions from the U.S. are already in effect. G7 suspended preparations for the G8 meeting in Russia. Eurozone countries seem committed to isolating Russia if a diplomatic solution cannot be found promptly even though they-especially Germany- are particularly dependent on Russia for gas and oil. All this indicates that international law is consequential.
As I explained earlier, I have never claimed that international law is inconsequential. For example, trade law seems to matter. But it is always an empirical question whether a specific rule affects state behavior or not, and in a meaningful rather than trivial way. Anecdotal evidence gets one only so far.
To address this problem, scholars use statistical methods–basically, event study methodology, to test whether state behavior changes in the predicted fashion after the state ratifies a treaty. This approach has been productively used in the area of trade (yes) and human rights (generally, no). It helps in these areas that different states ratify the treaties at different times. Unfortunately, the use of force rules came into effect all at once for everyone in 1945, so there is not enough variation to do a real test. (Many countries joined the UN system later, but usually when they came into existence, or for other unusual reasons that cannot be controlled for.)
Still, I thought it would be interesting to take a look at the incidence of interstate war, and I found the graph I reproduce above in Kristian Skrede Gleditsch & Steve Pickering, Wars Are Becoming Less Frequent (2013), which seems like a carefully written paper. The bars show the number of interstate wars (excluding civil wars) with at least 1,000 battle deaths in a given year. Note that the 2011 Libya war is excluded because the data set ends in 2010, and the 2008 Russo-Georgian war is excluded, presumably because of insufficient battle deaths.
One can certainly detect a decline in the frequency of interstate wars (as shown by the various trendlines). But it would be very hard to attribute any causal influence to the 1945 UN charter. If you trust the linear time trend, 1945 just falls in the middle of a long-term decline. If you take one of the nonlinear time trends, it falls before an increase in the number of wars. If one is looking for causes, the end of the cold war with the onset of U.S. hegemony seems like the most plausible–the infrequent warfare over the last 20 years pulls down all the time trends. However, all in all it is hard to find any causal pattern at all.
If you want to, you can find reasons for giving causal effect to the 1945 law. You can say that it took a while for the a new norm to work itself through the system, or that the cold war or decolonization was an anomaly that interrupted what would otherwise have been a smooth pattern of causal influence. Maybe. But it seems to me that if one makes such claims, one needs to acknowledge a low level of confidence.
We are often told our actions are illegitimate, but when I ask, “Do you think everything you do is legitimate?” they say “yes”. Then, I have to recall the actions of the United States in Afghanistan, Iraq and Libya, where they either acted without any UN sanctions or completely distorted the content of such resolutions, as was the case with Libya. There, as you may know, the resolution only spoke of closing the airspace for government aircraft, while it all ended with bomb attacks and special forces land operations.
Our partners, especially in the United Sates, always clearly formulate their own geopolitical and state interests and follow them with persistence.
The U.S. military intervention in Afghanistan could be defended as self-defense on the theory that the Taliban government harbored Al Qaeda, and it was later ratified by the Security Council. But Putin is right that the 2003 Iraq intervention was clearly illegal, and that the military intervention in Libya went beyond the terms of the Security Council authorization.
Tu quoque (“you too”) defenses are not recognized in international law; but they can be effective as appeals to fairness and ground arguments that the law is unjust and should be abandoned. But Putin does not go on to argue that because the United States violated the use of force rules, Russia can as well. Instead, he says:
Our approach is different. We proceed from the conviction that we always act legitimately. I have personally always been an advocate of acting in compliance with international law. I would like to stress yet again that if we do make the decision, if I do decide to use the Armed Forces, this will be a legitimate decision in full compliance with both general norms of international law, since we have the appeal of the legitimate President, and with our commitments, which in this case coincide with our interests to protect the people with whom we have close historical, cultural and economic ties. Protecting these people is in our national interests. This is a humanitarian mission.
And so it turns out that even if the United States is an international lawbreaker, Russia chooses to take the high road and comply with international law, or so Putin claims. The reason for this approach is surely that Putin sees an advantage in the current system that grants Russia a veto in the Security Council even if this means that Russia must gin up a feeble legal rationale for its unilateral intervention in Ukraine.
Sending troops into a foreign country does not violate international law if that country gave its consent. Is this Russia’s legal justification for its incursion on Ukrainian territory? According to Bloomberg:
Vitaly Churkin, Russia’s ambassador to the United Nations, said today the crisis is creating serious risks to Russian security and to the safety of millions of Russian-speaking compatriots in southeastern Ukraine. Former Ukrainian President Viktor Yanukovych wrote to Russian President Vladimir Putin requesting a military deployment, Churkin said.
“It’s completely legitimate under Russian law, and given the extraordinary situation in Ukraine, this threat and the threat to our compatriots, Russian citizens and the Black Sea Fleet,” Churkin told a meeting of the UN Security Council in New York, reading out loud the March 1 letter from Yanukovych.
[Update: and here is Putin: "As you may know, we have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the Armed Forces to protect the lives, freedom and health of the citizens of Ukraine."]
It’s a unclear whether Churkin is making a consent argument, a humanitarian intervention argument, a self-defense argument, or all three. But assuming a consent argument is involved, is it valid? After all, Yanukovych was the elected president of Ukraine, and he was never unelected. He was driven out of office after being “impeached” by the Parliament. My understanding is that the impeachment did not follow constitutional procedures. If so, he was removed by a coup. That is, in fact, his view and Russia’s position.
Suppose that is the case. The international law is murky but the rule in these situations is that even when a government is illegally deposed, the successor government inherits its legal authority under international law as long as it controls the territory–the basic idea being that if foreign governments want to trade or otherwise deal with the population, then they must go through whatever entity controls them. There is some doubt about how much the government in Kiev controls the territory, but it certainly exerts greater control over it than Yanukovych does, whose whereabouts are unknown. The new government is also treated as legitimate by many (most?) foreign governments (in contrast to the government that came to power after the controversial coup in Honduras in 2009), and that too contributes to its authority under international law.
Russia disagrees, but even if we therefore conclude that Ukraine currently lacks a legitimate government under international law, it doesn’t follow that Yanukovych, who is now a private citizen, has the authority to invite Russia in. He doesn’t.
And here is Chris Borgen on this topic.
Peter Spiro (and/or someone else operating the Opinio Juris twitter account) accuses me of “gloating” about the military intervention in Ukraine, being a “realist,” committing something called the “perfect compliance fallacy,” and believing that “international law is a chimera.” These accusations are false.
1. I am not a “realist” in the political science sense. I believe that countries cooperate when they can achieve mutual gains; that cooperation can benefit from sophisticated institutional arrangements; but that cooperation must be self-enforcing, meaning that it must be in the individual interest of the relevant countries not to defect from their arrangements (what economists sometimes call the “participation constraint”). Although few (albeit an increasing number) law professors take this approach to international law, many (although certainly not all or even most) political scientists do. Realism, as I understand that term, emphasizes security competition among countries; it has little value for understanding international law.
2. Spiro is right that you can’t infer anything from a single data point if that’s what he means by the “perfect compliance fallacy.” However, I never said that because Russia violated international law in Ukraine, international law is a “chimera.” Nor did I say anything that could be construed in such a way.
My writings about international law have been devoted to explaining it, not denying that it exists like the mythical beast invoked by Spiro. However, I am more skeptical than most international law scholars, who are frequently advocates, cheerleaders, or aspiring diplomats. The arguments I have made in The Limits of International Law, Economic Foundations of International Law, and elsewhere implied that international law is most effective at solving coordination games and managing bilateral cooperation, and not so good at solving collective action problems. So I have expressed skepticism about some types of international law–including collective security and human rights–but not others (trade law, for example). I have also argued that some areas of international law work under certain conditions but fail under other conditions–claims that are resisted by legal scholars but are familiar in political science (for example, James Morrow’s examination of the laws of war).
3. The evidence for the weakness of the use of force rules has been gathered and analyzed by many people, including Michael Glennon. The debate is too complicated to reproduce here. All I will say is that it is sufficient neither to point out that countries sometimes violate the law nor to point out that countries sometimes comply with the law. One needs to imagine the counterfactual world in which the UN system does not exist and ask how states would act differently. In such a world, would Russia have also invaded Armenia? Would the United States have invaded Canada? Countries have reasons other than law not to attack each other.
Erik Voeten writes in The Monkey Cage that “international law and institutions look pretty weak now, but they will matter a lot down the road.” Let’s take a look at some of these institutions.
The Council of Europe and The European Court of Human Rights. If Russia commits human rights violations in Ukraine, the victims can brings claims before the ECHR. Russia has already lost many cases before the ECHR, paid the tiny awards, but has not brought its laws into conformity with the ECHR’s interpretations of the European Convention on Human Rights. Indeed, Russia has steadily deprived its people of their freedoms since it joined the Convention in 1998. The Council of Europe “enforces” the Convention and the Court’s judgments but actually has no coercive power, as Erik notes, and history amply demonstrates.
NATO. NATO is an institution, of course, but not in the sense that law professors mean. It does not have any legal powers. It is simply an alliance of countries. NATO can certainly put pressure on Putin, far more than any legal institution like the ECHR. But Ukraine is not a member of NATO, and NATO’s own charter would thus not compel countries to come to its aid. It seems unlike that NATO will become a vehicle for countering Russia’s move to Ukraine because it’s a military alliance and no one wants to go to war with Russia.
The laws of war. Erik thinks the laws of war will influence the way Russian soldiers prosecute military hostilities if such hostilities occur. Maybe if the Ukrainians put up token resistance, but not otherwise. Russia committed numerous atrocities–the clearest possible violations of the laws of war– during the two Chechen Wars. What reason would they have for acting differently this time around if Ukraine put up stiff rather than token resistance? And don’t say those were internal conflicts and therefore not governed by the Geneva Conventions. Russia (unlike the United States) ratified Protocol II in 1989, thus subjecting itself to the laws of war for “non-international” armed conflicts. If it can disregard this international treaty with impunity, why couldn’t it disregard the rules that would apply to the interstate conflict with Ukraine?
International Criminal Court. Russia is not a member of the ICC; Ukraine seems to be thinking about joining it. But the fact is that the ICC is an extremely weak institution, and if it ever hands down any indictments, this means at most that some Russian soldiers, officers, or politicians will be unable to travel to European countries. If you read David Bosco’s fine book on the ICC, you will see that even the west would not welcome the ICC blundering into this conflict.
The European Union and multilateral sanctions. Erik is right that the EU could imaginably exert meaningful economic sanctions on Russia. I don’t know whether this is plausible; maybe it is. But the main point here is that the EU, like NATO, is not a legal institution but an alliance (or something closer to a confederation) that may be able to aggregate the power of its members so as to counter Russian influence.
Erik is right that foreign countries, acting individually or in cooperation, can make Russia pay a price for violating international law. Whether or not they do so depends on their power and interests. If they are divided, or don’t care much about Ukraine, then Russia will get away with its illegal act. I am skeptical that any free-standing international legal institution with the responsibility for enforcing international law will “matter a lot down the road.” But only time will tell.
So far, Russia has not (as far I have been able to find) made an official legal argument to justify its incursion in Ukraine. As I explained in exhaustive detail yesterday, it doesn’t have an argument, at least not a good argument. But that won’t stop it from making the best argument it can; what will it be?
In searching for precedents, the best one I can think of is the Kosovo intervention in 1999. Then, NATO forces led by the United States attacked Serbia in order to rescue Kosovo from “ethnic cleansing” by Serbian troops and paramilitaries. The United States, like Russia now, lacked UN authorization. The United States, like Russia now, refused to provide an international-law justification at the time of the intervention. Later, a quasi-official justification was ginned up: the invasion was “illegal but legitimate” (according to one source) because of its humanitarian purpose. Still later, some efforts (mainly by the UK) were made to create a customary-law exception to the UN use-of-force rules, one that permits humanitarian military interventions despite the absence of UN authorization. These efforts failed to change the law but nonetheless helped reconcile westerners to the idea of unilateral humanitarian interventions, helping George W. Bush to elicit liberal support for his intervention in Iraq in 2003, which also lacked UN authorization. Yet it is also clear that part of the motivation for the intervention was geopolitical: the U.S. and Europe sought to enhance control over the Balkans and in the process diminish Russian influence.
Another semi-precedent was the not-quite intervention in Syria by the United States in 2013. President Obama was prepared to use military force to punish Syria for using chemical weapons against civilians, again based on a mix of legal and interest-based motivations–to strengthen a norm against using chemical weapons, to protect civilians, and to weaken the Syrian government. Putin famously scolded the United States for disregarding international law, and Obama abandoned the plan–most likely because of the absence of domestic and international support, not because of the absence of a legal justification which he knew of in advance.
Putin could thus argue for an implicit or “evolving” exception to the rules against use of force when humanitarian concerns are at issue. To avoid contradicting his position on Syria, he can argue that the distinction is that he is responsible for protecting ethnic Russian inhabitants of Ukraine, and that the mixture of populations in Ukraine could fuel a civil war unless Russia moves quickly and firmly. In Syria, the civil war was already in process, and the United States did not even pretend that its intervention could end it. Punishing the Syrian government to deter other states from violating the chemical weapons taboo in the future was remote from the humanitarian goal of protecting civilians in Syria, and thus provided a weaker justification than was advanced in Kosovo. Moreover, the U.S. has frequently justified interventions in foreign countries to protect Americans. No Americans in Syria needed our military protection; millions of Russians live in Ukraine. And while we mean American citizens while the “Russians” in Ukraine are ethnic Russians who are citizens of Ukraine, this distinction may be lost on those with strong nationalist feelings. There is a long if somewhat disreputable history of countries claiming the right to protect co-ethnics who live as minorities in foreign countries, which draws on powerful nationalist emotions.
All that said, the factual basis for the Russian argument does not exist: as far as we know, no one is ethnically cleansing Russians, and if civil war occurs, it will mostly likely occur because of the Russians not despite them. So Putin may want to hold off on this justification for the time being and, like Bill Clinton, keep his mouth shut until the facts are more amenable to a legal justification. If atrocities against Russians ever take place, he can claim that he anticipated a humanitarian crisis. If they don’t, he can claim to have prevented one.
These thoughts were stimulated by this piece by Chris Borgen.
The international law commentariat has been pretty quiet about the most important geopolitical event so far this year. Hello? Anyone want to offer an opinion? Let me fill in the silence:
1. Russia’s military intervention in Ukraine violates international law.
2. No one is going to do anything about it.
This is a very good book, which milks insights out of two dead-ish fields–torts and contracts–and one that has never come to life–restitution. I’m impressed by the creativity of the authors. My favorite of their many ideas is “anti-insurance”–where two contract parties agree that if the promisor breaches, he must pay damages to a third party (who pays for the privilege) rather than to the promisee. This mechanism prevents the promisee from relying excessively on performance while preserving the promisor’s incentive not to breach unless efficient to do so. It’s called anti-insurance because it eliminates the promisee’s right to damages (a kind of insurance) in case of breach.
Will argues that the distinction between sense and reference rescues originalism from the charge that it can’t account for change. This strikes me as an interesting but odd argument. Odd because some defenders of originalism tout it precisely because it cannot account for change. If change is necessary, then Article V (or, as Will cheerfully observes, revolution) provides the mechanism.
Moreover, one of the chief normative justifications for originalism is that it binds judges. In making this argument, Scalia cites the “reference” of the cruel and unusual punishment clause–the practice of capital punishment at the time shows that the ratifiers could not have been thinking about (“referring to”) the death penalty when they wrote down that clause. Thus, we know that the death penalty is not cruel and unusual. I don’t think Scalia made a philosophical mistake: the reference is obviously relevant when we are trying to figure out sense (or the “test,” as Will puts it) even if it does not exhaust the meaning. If following Will, we agree that reference should be discounted or ignored, then originalism loses some of its determinateness. Indeed, I don’t see the founding-era “sense” of “cruel and unusual” as being any different from what non-originalists think it should mean.
Well maybe this doesn’t matter, and if it doesn’t, the dispute between originalists and non-originalists reduces almost to a question of what rhetorical flourishes we should ask supreme court justices to attach to their opinions. I say “almost” because some modern constitutional rights (for example, abortion rights) are impossible to reconcile with the sense of any provision in the Constitution. Or take the commerce clause. So, in the end, I don’t think the sense/reference argument–which is really just an argument that we give less weight to founding-era understandings than we might otherwise–saves originalism from its inability to account for change. I think Will’s argument is rather simply that originalism requires interpreters to interpret reasonably rather than unreasonably, and at least on that issue we find common ground. But I remain puzzled why, if Will believes that constitutional change can occur through revolution, it can’t occur through “mini-revolutions,” like Ackerman’s moments or even ordinary political evolution that results in new constitutional norms but does not repudiate the existing system altogether.
The implosion of Mt. Gox exposes a paradox about bitcoin, which I have been groping for in some writings. Assume that the bitcoin software works perfectly (though there is some question about this) or can be made to work perfectly (as advocates argue). Bitcoin still has a problem with the “joints”–the gap between the network itself and the ordinary (non-expert) users without which it could never be more than a marginal phenomenon. Ordinary people will need to rely on institutions–exchanges like Mt. Gox and other services–and they will not rely on them unless they can trust them. But, unlike bitcoin itself, these institutions are run by human beings who can make mistakes or engage in fraud. Hence the need for regulation. Thus, bitcoin will prosper only if it is integrated into the regulatory infrastructure, but that means that it cannot operate as a decentralized currency outside of government control. Yet it is that feature that makes bitcoin so attractive to its most ardent supporters. I expect that legitimate investors and merchants who may benefit from it will push the government to normalize bitcoin by regulating the intermediary bitcoin institutions, at which point it will no longer be an autonomous currency but just a useful piece of software.
N.B.: journalists reflexively describe bitcoin as a means of transferring value without using an intermediary, but for ordinary consumers that is the case only in the sense that it is true for currency as well. You could put a bunch of dollars into a wheelbarrow and wheel them to the store. Banks exist because this is impractical, and in the same way bitcoin intermediaries like Mt. Gox exist because it is impractical for most people to wheel around bitcoins on their own.
Some revolutions take place with a bang. The empirical revolution in legal studies–and by this I mean rigorous data analysis–was hardly perceptible at first but now empirical work is everywhere. Much of the most interesting work being done right now in the legal academy–in such diverse fields as civil procedure, bankruptcy, international law, and constitutional law– reflects the rigorous statistical methods that Ted championed. At least 5 members of my faculty are trained in statistical methods, and several others do statistical work via collaborations. Twenty years ago hardly anyone did. Ted provided important institutional support for empirical legal scholarship but, most important, served as a model for those who followed him. I’m not sure he received sufficient recognition for his important methodological contributions to legal scholarship in his lifetime. Our paths crossed only a few times but each time it was terrifically rewarding for me. He will be sorely missed.
Jeffrey Gordon has posted a paper arguing that applying cost-benefit analysis to financial regulation is a “serious category mistake.” He makes the arresting claim that CBA works best for the real economy, which is governed by the laws of chemistry and physics, but not for the financial economy, which is a “constructed system.” The bulk of the paper is devoted to showing the law of unintended consequences in action. Rules developed in the 1970s to permit money market mutual funds ended up harming S&Ls, which could not compete for funds, with the result that they were deregulated, whereupon they self-destructed. Etc.
Gordon is strongest in showing the sheer unpredictability of financial regulation. But is this problem worse than in other areas of regulation? Perhaps. Possibly connected to the idea that the financial economy is a “constructed system,” arbitrage seems to be a great deal easier in the financial world–limited only by imagination and computer power–than in the real world, where it can be hard to retool factories and move power plants. Still, I remain optimistic. Gordon’s is a nice companion piece to Coates’ paper, which I discussed here.
At The Monkey Cage, James Fearon checked to see whether political science has become increasingly relevant to public debate, as measured by the number of mentions in the New York Times. It has. The trend for law professors (I searched for “law professor” or “professor of law”, but the trend is similar for “law professor”-only searches as well) is even stronger. You can read his post for the various caveats–he’s the social scientist, not me.
This image is from a paper by Fried, Coates, and Spier. They surveyed employers of Harvard Law School alumni, and found that employers believe law students should take accounting and corporate finance above all (5 is extremely useful for an associate to have taken; 1 is not at all useful)–even students who go into litigation. This chimes with my experience. I tell students that they should take as many finance-related courses as possible, including advanced courses in the business school. Math-anxious law students normally shy away from classes like these, only to find that they are expected to understand what a collateralized debt obligation or credit default swap is on the first day of practice. And, unlike the case of, say, antitrust, a good understanding of finance is not something one can pick up from practice. One might learn to fake it, but one needs a deep understanding. Every other big case these days seems to have a large finance component, and lawyers who are comfortable with finance can contribute more than those who aren’t.
*As several people rightly pointed out, law students who plan to practice in a large law firm in New York, Chicago, or other big city.
We read papers by Bruce Ackerman, David Strauss, and Jeremy Waldron. I was familiar with this work, but rereading these articles after the originalism pieces, it was easier to appreciate Ackerman’s argument that common-law constitutionalism doesn’t come to terms with the role of popular sovereignty in American political culture. Who ever talks about the common law anymore? Or of great common-law judges? But then Ackerman’s “originalism,” according to which public deliberation takes the place of the Article V process, founders on ambiguity as to what counts as an amendment. I tend to think that the justices implement their ideological preferences subject to some real but hard-to-specify institutional constraints about which they are (sometimes) willing to hear argument, above all precedent. If that is common-law constitutionalism, I suppose I’m on board.
But I prefer Waldron’s view that judicial review should be junked altogether, a view that has the happy consequence of making it unnecessary to take an interpretive stance toward the text. Some students thought that under such an approach, rights would no longer be protected, but it is plain that Congress and state legislatures do far more to protect rights than the Court does. Alas, Waldron’s position is as remote from American reality as Mars. For we could add to the four empirical premises of his argument (1–democracy, 2–responsible judiciary, 3–people care about rights, 4–people have good faith disagreements about rights), a fifth: 5–people think courts should resolve those disagreements.
Ariel Porat and I have posted a new paper to SSRN, which discusses how courts should determine damages when a wrongful act that harms someone also creates a benefit. Consider two examples:
- A driver causes an accident that injures a pedestrian who then writes a bestseller that details her recovery. Should damages equal medical expenses and the like, or should the court offset the royalties, which, after all, would not have been generated but for the accident?
- A driver causes an accident in the course of swerving to avoid another pedestrian or while rushing an injured person to the hospital. Should the gains to the third party be offset from the damages the driver owes to the victim?
These are not easy questions, and courts give inconsistent answers. We argue that if one focuses on the social costs of the behavior in question, it will often be appropriate to net out the benefits. However, complex problems of causation, measurement, and related issues often suggest that the general bias against offsetting benefits in the law is justified.
Glen Weyl and I have posted a revised draft of Voting Squared on SSRN. We argue that quadratic voting can and should play a role in democratic decisionmaking.
Quadratic voting is a voting procedure where people are allowed to buy votes for or against a proposal (or candidate) by paying the square of the number of votes they cast (e.g., 3 votes cost $9). The votes are totaled up and the majority prevails. Quadratic voting enables people with strong interests in an outcome to exert influence in proportion to the strength of their interest, so a passionate numerical minority of voters may be able to outvote an indifferent majority. Weyl shows in another paper that with a sufficiently large population (say, a few dozen), a proposal will win a quadratic vote if and only if the aggregate gains to the winners exceed the aggregate losses to the losers in willingness-to-pay terms.
The main point of our joint paper is that conventional voting rules (for example, one-person-one-vote with majority rule) do a very bad job because they provide people with no way to exert influence on outcomes in proportion to the intensity of the effect of those outcomes on their well-being. This leads to the familiar tyranny-of-the-majority problem. We then discuss all the ways that have been developed to address this problem–judicial review, cost-benefit analysis, supermajority rule, and so on–and show that they do worse than quadratic voting would if it were implemented.
Finally, we address the objections to quadratic voting for democratic politics, including:
- It would favor the rich.
- It would violate a taboo against vote-buying.
- It would lead to political instability.
We show that these objections are mistaken.
A meditation on our political culture.
This book, edited by Cary Coglianese, Adam Finkel, and Christopher Carrigan, is out. My copy arrived and I have been paging through it. I became interested in this topic several years ago, and wrote a paper with Jonathan Masur arguing that regulators should monetize the expected costs from job loss caused by proposed regulations when they conduct cost-benefit analyses. Agencies have never done this, perhaps because in standard economic models, a job loss is not actually a social cost–the unemployed worker just gets another job, or capital shifts to a less regulated sector of the economy where new people are hired. But recent empirical work suggested that the social costs of a job loss could be high–in the neighborhood of $100,000–because human capital is destroyed, among other effects.
So we wrote this paper and were subsequently invited to participate in this conference, where a very strong group of people delivered papers collected in this book. Many papers dealt with the important but age-old question of whether regulation itself destroys jobs (maybe). I was more interested in whether people thought it would make sense for regulators to treat job loss as a cost in cost-benefit analysis . It looks like a maybe-to-yes with a great deal of cautious skepticism. One worry, which is a real one, is that agencies just can’t handle it. Agencies aren’t very rigorous in their existing cost-benefit methodology, and requiring them to look at job-loss effects may be too much. Still, I hope to see some experimentation in government. OIRA asked for comments on this topic a while back; I don’t know if anything came of it. There will be resistance from people who fear that our approach would reduce the amount of regulation.
Will’s position on the role of normative arguments in the debate is unclear. He seems to think that they play some role, but what exactly? If the “conceptual” argument for originalism is strong, are the normative issues irrelevant? Are they some kind of tie-breaker? I would like to know more.
Let us turn to the conceptual argument. Will likes Alexander’s and Lawson’s argument that courts are supposed to enforce the Constitution, and so they need to interpret the Constitution so that they know what they are trying to enforce, and interpreting the Constitution means figuring out what the original understanding was. But this is merely a semantic argument. Alexander, Lawson, and Will just define “Constitution” to mean “the text” rather than the set of norms that structure and restrict the government. That’s like saying that antitrust law is the Sherman Act rather than the body of norms that courts have created under the authority of that Act. This statement is either plainly wrong or based on idiosyncratic definitions.
Steve Sachs’ argument is more sophisticated. Sachs is a positivist and he believes that, as a purely empirical matter, we Americans believe that our constitutional law consists of the original understanding, and any legal norms that appear to deviate it are invalid unless they can be derived from continuity rules that existed at the founding. If that’s what we believe, that’s the law, and if the justices have a duty to obey the law, then they should be originalists.
Sachs does not actually cite any evidence about Americans’ beliefs, and for this reason stops short of claiming that originalism is right. Will does think that such evidence exists. Yet Americans seem to think that they have constitutional rights that protect all sorts of things that are not part of the original understanding. Will thinks that if forced to confront these inconsistencies, people would choose the original understanding over their favorite rights, just as people accept legal judgments about statutes and common law that turn out to violate strongly held moral intuitions about what the law is or should be. My view is that people continue to accept the authority of the Constitution and the Supreme Court precisely because the Court has recognized popular rights. In Sachs’ terms, our “continuity rule” recognizes the power of the Supreme Court to effectuate “amendments” to the text under certain conditions. I would add that it recognizes the authority of the other branches to do so as well.
If Will’s position has any force, it derives from the fact that the public does seem to venerate the 1789 text and the founding generation; and, moreover, that Supreme Court justices do not openly acknowledge that they have the power to amend the text on their own. I have two responses:
First, there is an important ceremonial aspect to our political and legal culture. Common law judges also say that they “find” law rather than “make” law, even though all sophisticated observers know that the opposite is true. Justice Roberts says that he calls balls and strikes, and again no sophisticated person believes him. When Justice Breyer says that he enforces the “spirit” of the 1789 text rather than that he makes pragmatic judgments or enforces precedents (though he says that also), he is giving a ceremonial bow to the founders, and not committing himself to the original understanding. (The ceremony is a strong, persistent, but strange part of our political culture, and is temporarily suspended when we remember that many founders were slave owners but otherwise remains in full force.)
Second, I think Will gets our legal culture wrong. Originalism is a minority position supported by only two justices on the Supreme Court who practice it inconsistently, and hardly any others throughout our entire history. Continuity-to-the-last-generally-accepted-change-in-constitutional-norms is not the same thing as continuity-to-the-founding. Numerous justices and judges–Breyer is just one–have criticized originalism in the clearest of terms and have suffered no adverse consequences, no blast of public outrage of the sort that would occur if a justice said (to use Sachs’ examples) that we are bound by the French constitution or Klingon law or the Articles of Confederation. When President Obama said that he wanted an “empathetic” Supreme Court justice, everyone understood what he meant, and while plenty of people criticized him, his two choices have been confirmed.
My last point is if we really think that the case for originalism is empirical (I have my doubts, but for another time), then there must be an empirical way to test it. There are all kinds of confounding problems–who is the relevant audience, for example, and how much do they need to know, and how large does a consensus have to be. But a simple starting point is a survey question that forced the respondent to choose between an originalist outcome and a popular one. Here’s one.
In the course of searching a person’s home pursuant to a valid warrant, the police discover that the person owns birth control pills. The legislature of the state in which the search took place has recently passed a law making it a criminal offense to own birth control pills. This statute conflicts with Supreme Court precedent; however, the precedent itself is inconsistent with the original understanding of the Constitution in 1789, which does not mention contraception. Should the police arrest the owner of the birth control pills based on probable cause that she violated the statute? Should she be tried and convicted?
I realize that some originalists believe that precedent matters. But under the continuity version of originalism described by Sachs, this seems like a straightforward test case. Or if not, I’d be pleased to hear a better one.
I argue for such a statute here.
Will accuses me of setting up a false dichotomy by focusing on two extreme versions of originalism–originalism that requires judges to ignore precedent and originalism that licenses living constitutionalism. His response:
Originalism sometimes produces living constitutionalism, depending on how abstract a provision is, how clearly its meaning is known, and how much that meaning was intended to evolve. Originalism sometimes permits precedent, depending on how clearly a precedent can be shown to conflict with original meaning, certain forms of reliance, etc. When originalism permits precedent, the original meaning sometimes “plays a role” by helping judges figure out whether the precedent should be extended or distinguished in future cases. In each of these cases, the originalist answer can only be figured out by actually doing the work.
Well, okay, but this pretty much eliminates one of the major defenses of originalism–advanced forcefully by Scalia among others–which is that it dictates determinate case outcomes. This is crucial for Scalia because he fears that otherwise judges will allow their ideological preferences to influence interpretive outcomes.
It is ironic that in the next paragraph Will argues precisely that what is distinctive about originalism is that the interpreter doesn’t always get what he wants. But if the decision to overturn precedent on originalist groups relies on judgment–a weighting of competing factors that are often elusive and difficult to articulate–then the kind of cognitive dissonance reduction that Scalia worries about will creep back in. We saw this with the Printz case. Scalia might have been right to dismiss originalist arguments because of the strength of precedent, but he certainly did not provide much of a defense. I suspect that this was because he did not want to acknowledge that this is what he was doing. (N.B.: Scalia’s statement in Originalism: The Lesser Evil that he would never hold that flogging is a constitutional punishment, regardless of the original understanding of the eighth amendment, is at variance with this idea that the interpreter doesn’t always get what he wants, isn’t it? [It was subsequently pointed out to me that Scalia revoked his earlier statement about flogging. Maybe that is tied to his statement in the same interview that he doesn't care what his intellectual legacy is.])
Finally, Will says that his theory of originalism offers “safety valves,” including amendment and illegality. I hope to learn more about why one should think that the Article V procedure offers an acceptable safety valve. What are the criteria for determining whether a safety value is acceptable or not? His endorsement of “illegality”–presumably the idea that the justices or other political actors should simply disregard the original understanding when it produces unacceptable outcomes–suggests that Will doesn’t think that Article V is in fact adequate on its own. The illegality safety value raises anew the question of determinacy: how, except by falling back on discretionary and contestable judgments about moral and political values, can one justify ignoring the original understanding? How can originalism ever rule anything out if illegality remains a morally valid option for interpreters and other agents?
That is, for Will Baude, one of the major virtues of originalism, which distinguishes it from other interpretive theories. And he says that this is the fundamental disagreement between him and me:
Originalism suggests that somebody other than the interpreter gets to make important policy decisions, even if that other somebody might sometimes choose to delegate back to the interpreter in the end. Hence, there is no guarantee the interpreter will like the answers, though it is also a mistake to assume that the interpreter will hate them.
He has made this argument before, and I’m afraid I disagree. All alternative interpretive methodologies I can think of provide no guarantee that the interpreter will like the answers. This was one of the points that Randy Barnett made in his debate with Sunstein, who was trying to debunk originalism by showing that it would permit racist and sexist laws. Barnett responded that Sunstein’s preferred approach, minimalism, also does not guarantee (for example) that the Supreme Court will order the government to provide welfare to poor people, an outcome that Sunstein presumably would approve of (according to Barnett). Another appealing interpretive methodology–Thayerianism–obviously would give the interpreter no recourse if Congress decided to abolish the national bureaucracy.
Originalism is itself a choice. Proponents of originalism must make arguments on behalf. And this creates a paradoxical problem for its defenders like Will, who says “if you are intellectually honest, signing on to originalism is signing on to a theory of authority where you can’t be guaranteed in advance that you’ll like what you find.” He’s right that originalism won’t get off the ground if it just advances the political preferences of a small group of people. As I said, the same is true for other methods. The question is what does it get us beyond that? And to answer that question, he must show that it is superior to other methods, presumably by advancing institutional values that everyone or nearly everyone shares. In this respect, originalism is no different from other methods.
This graph shows the ratio of federal (civilian, non-post office) employees to legislative employees (Congress and its staff) from 1815 (executive = 938, legislative = 243,) to 2010 (executive = 1,360,000, legislative = 31,000), or from a ratio of 3.9 to 43.9.
The rise in executive power is inexorable; you’ll see the same pattern in the states and in foreign countries. It reflects deep forces that are unresponsive to ideological swings. It shows that with the passage of time the executive’s influence on policy outcomes increasingly outstrips that of Congress.
What is the committed originalist to make of this pattern? I can see two responses. The formalist will say that it doesn’t bother him as long as the rules were obeyed. If they weren’t, then the entire edifice of the modern legal-bureaucratic state must be dismantled, whatever the cost. (I realize now that there are moderate originalists who don’t take such a position, but I am at a loss to understand the practical implications of their originalism.)
A non-formalist originalist might argue that, regardless of whether the rules were obeyed, the legal-bureaucratic state must be dismantled if it is inconsistent with whatever substantive goals the founders sought to achieve for government structure. I find it impossible to believe that anyone at the founding would have believed that our system is consistent with their goals. (They did not express admiration for the centralized national bureaucracies of the time like France’s, or historical bureaucracies in Imperial Rome and Byzantium, as far as I know.)
Most critics of originalism focus on the problems that this methodology poses for current equality-related values, e.g., race relations. The problems that originalism poses for government structure are even greater.
Let me anticipate Will’s response, which I expect will be that originalism doesn’t necessarily preclude modern government structure. That is something to be determined. But my view is that any methodology that could even possibly entail that we must return to a government structure appropriate for a small agrarian society, a structure that exists nowhere in the world today, is off the table.
Here is a response from Michael Ramsey to my earlier post on precedent.
Will misses the point of my graph, though that’s my fault, as I didn’t supply much of an explanation. My point was not that it’s a shame that 3 NLRB members don’t get appointed, or an NLRB order is vacated. Nor is it my view that the government should be as large as possible. My point was instead that the rules that the founders developed to address government structure reflect a different world, and hence are unlikely to be reasonable for our purposes.
The founders tried to establish what they called a “republican form of government,” in which most policy would be made through public deliberation and debate. Whatever the merits of such a position in the 18th century, it is completely wrong today. We live under what might be described as a bureaucratic-legal system. Nearly all policy is determined by the bureaucracy subject to very general control by elected officials and judges. This is inevitable in any large country. I can’t think of a single historical or modern example of a large country (aside from failed states) that does not use a vast bureaucracy to determine and implement policy. The only real exception is the U.S. federal government in its first few decades, and that is because in the early years local interests were not yet ready to yield power to the center, and a largely agrarian with mostly local markets did not need national regulation. It may be reasonable to believe that the U.S. government is too big today. But does anyone think the right size is 938 employees (actually the 1816 figure, the earliest I could find)?
Will says he’s “inclined to say that [originalism] provides a benefit by giving us a baseline set of institutions from which we can depart if we marshal sufficient consensus.” But we have marshaled such a consensus; it is reflected in 200 years of institutional development that has been ratified over and over by different configurations of political interests.
It is not my view, contrary to Will’s suggestion, that I know best how the government should be structured, and my views should be implemented by the Supreme Court. My view is that as between the originalist baseline (which Will is confident is correct) and the status-quo baseline, the status-quo baseline is a better one. My position does not require any special “confidence.” Will is just smuggling in a bias for originalism by arguing otherwise.
Will criticizes Cass Sunstein for attacking an extreme form of originalism that Will says that no sophisticated originalists believe. Sunstein says that originalism threatens to destabilize the U.S. constitutional system by throwing into doubt apparently fundamental principles that are inconsistent with the original understanding (in such areas as equal protection, freedom of speech, and takings, among others). Or if it doesn’t–if one is a “faint-hearted” originalist who accepts precedent–then one isn’t an originalist at all. Will responds that sophisticated originalists do give weight to precedent, and thus Sunstein is attacking a straw man. Similarly, in response to an earlier post of mine, he said that an originalist might believe that the original understanding requires courts to defer to precedent; thus, originalism is not necessarily inconsistent with stability.
I’m skeptical of Will’s defense. For one thing, there is a confusion here between originalism-as-justification and originalism-as-interpretive-methodology. The debate–to the extent it has any practical relevance–is over the latter. If you persuade yourself that the original understanding justifies the methodology of the “living constitution,” and then you want to decide cases like Justice Brennan, Sunstein is not terribly worried about you. It’s like a theologian who argues against science by claiming that God chooses to make everything act according to the laws of physics and otherwise never intervenes. He preserves God but otherwise gives away the game.
Similarly, Sunstein will have little problem with originalists who give weight to precedent for other reasons, as long as they give enough weight to precedent that the original understanding itself rarely or never plays a role in actual judicial decision-making. Will is never very clear who the originalists are who take such an approach, but I, at least, haven’t found very many. Will himself appears to believe that the Supreme Court should revisit settled doctrine if new evidence of the original understanding emerges. If so, and he is certainly a sophisticated originalist, then Sunstein is not criticizing a straw man.
Will has a “big tent” theory of originalism that allows originalism to survive attacks like Sunstein’s because within that tent there is always a moderate version that critics like Sunstein have no problem with. (For another example, see here.) Since they remain standing, “originalism” survives. Will himself commits the fallacy of mood affiliation by suggesting that the extreme versions are unobjectionable because they occupy the same tent as the moderate versions that lack the features that Sunstein objects to.
Noel Canning is the cleanest test for originalism you could ask for. The class (or most of it) seemed to agree that the most natural interpretation of the recess appointments clause, in founding-era context, is that the president can fill an office only if the vacancy opens up during a recess, and probably an intersession recess. I would qualify this point in the following way. In the years after ratification, government officials who sought to make sense of this clause thought of it in this way; at the time of ratification, there is little evidence that anyone gave it much thought. In any event, it seems likely that the Supreme Court will rule for Noel Canning.
If so, that’s a shame. For my reasons, see the graph above.
In The New Republic, Noam Scheiber advocates price regulation and subsidization of legal services, so as to counter the advantages that the rich enjoy in our legal system. I criticize his argument here. My argument begins:
In days of old, litigants would hire champions to assert their claims in trial by battle. The rich could afford more skilled warriors, and so were more likely to win their lawsuits (and less likely to lose their heads). One could imagine proto-liberals at the time proposing, quite sensibly, that everyone receive a champion of equal quality. Whether this would have improved justice is another matter.
I comment at The New Republic on allegations that President Obama is acting like a monarch. Incidentally, I thought the debate about whether George W. Bush was Hitler or merely Caesar or perhaps Napoleon was also phony, so maybe I lack credibility.
Via a helpful review by Daniel Farber, I found out about this book, which is a much-needed one. I have searched in vain for some time for an overall assessment of deregulation in the United States. Unfortunately, if the remit of McGarity’s beloved Consumer Protection Safety Commission extended to books, this one would have to be recalled.
McGarity argues that the deregulation movement arose from a conspiracy between business interests and right-wing intellectuals, who hoodwinked Congress and the public. In fact, deregulation was largely a bipartisan movement that started in the Carter administration, and reflected an emerging consensus that many (but not all) regulations did more harm than good–in particular, rate regulation. McGarity barely discusses or discusses not at all airline, trucking, and railroad deregulation of the 1970s, which generally has received high marks, or the resistance of business interests to some forms of deregulation–all of this contrary to this thesis. He is certainly right that a lot of deregulation went too far–notably financial deregulation–but because he refuses to provide a realistic baseline for determining whether deregulation benefits or harms the public, he provides no reasonable method for distinguishing between good deregulation and bad deregulation or, for that matter, good regulation and bad regulation.
Instead, he resorts to anecdotes. One of the weakest chapters discusses transportation safety, and he includes some distressing anecdotes of terrible accidents that he blames on deregulation. But transportation safety has greatly improved over the period of deregulation. Numerous studies show that railroads, airlines, passenger vehicles, and other modes of transportation are vastly safer today than they were in the 1970s. McGarity acknowledges some of these statistics at the beginning of the chapter, but by the end he has forgotten them, and instead pronounces deregulation a disaster for safety. Nor does he acknowledge the economic benefits from transportation deregulation, which have been extensively documented by economists.
Similar points can be made about other chapters, for example, the chapter on workplace safety, which provides a tendentious picture of mine safety being utterly neglected, when in fact safety has steadily improved (as shown by the graph above). The fatality rate dropped from 0.200 (1970) to 0.059 (in 1980) to 0.016 (in 2010) fatalities per 100,000 workers in coal mines. Certainly, stricter regulation would have caused the fatality rate to drop even further, but would it have been worth the cost? No answer is provided.
Another lurking question is the extent to which deregulation actually took place. As Farber notes, the evidence is often equivocal. The sheer number of rules has greatly increased; budgets are a more complex story, but private rights of action have also become more important. When rate regulation in the railroad and telecommunications sectors were eliminated, it was also thought necessary to introduce regulations to ensure free entry, leading to quite complex regulatory regimes. Airline safety was never deregulated; the fear was that price competition would lead to less safe airlines. What exactly deregulation is, and whether it has had good or bad effects, are important questions. We’ll need to wait for another book for the answers.
Will’s post is here.
1. Will has on several occasions argued that when a critic points out a particular defect X or Y in originalism, the critic must also show that some other interpretive methodology does not suffer from that defect, or is not otherwise inferior to originalism. It takes a theory to beat (or outrun) a theory.
This is not exactly right, though it contains an element of truth. Some theories are so bad that one can condemn them without comparing them to others. The theory that justices should consult the Zodiac in order to resolve disputes is one. At some point, we will need to examine alternative theories and see how they measure up to originalism. But in the meantime, it is pragmatically implausible to insist that one must constantly juggle all the theories at once (how many?) in order to be justified in pointing out a problem with one of them.
2. Will says “I see our government strictly following the founding-era document a huge amount of the time.” The modern system of governance in this country is vastly different from what existed in the eighteenth and nineteenth centuries. If it is consistent with the text, that can only be because the text is so vague and full of holes, undefined terms, and so on. Any style of originalism that can accommodate the current system of government has hardly any constraining force at all.
3. Will says “I think many (though not all) invocations of originalism are sincere.” Frank Cross’ book is the most rigorous effort to test this hypothesis and he finds no evidence that originalism constrains justices. It may be, as Cross suggests, that this reflects motivated reasoning rather than insincerity, but the effect is the same. This is also a problem for Will’s claim in a more recent post that originalism can constrain judges.
I received an email from a former student with the promising subject line “entrails.” It reads:
You mentioned in your post on Originalism class 4 that Roman priests would examine bird entrails in preparation for great political events. Actually, a Roman haruspex would examine the entrails (usually the liver) of any particular sacrificial animal, which could have been poultry if the offeror was poor, but was most commonly sheep. An augur’s method of divination, by contrast, involved watching the skies and interpreting the birds’ flight paths– most famously, when Romulus and Remus determined that Rome was to be founded on the Palatine hill rather than the Aventine when Romulus saw twelve auspicious birds in the sky, while Remus saw only six.
In one of his lesser known letters, Cicero told of an augur who complained that haruspices lacked empathy. A haruspex who overheard the comment angrily dismissed augury as “legalistic argle-bargle.”
As Andrew Rudalevige notes, in response to fellow Monkey Cage inmate, Erik Voeten, presidents do not exercise power only through executive orders. Moreover, many executive orders are trivial while others are important, so one can learn only so much from their absolute numbers. For that reason, it is important to look at other measures of executive power. The graph above shows the number of pages in the Federal Register each year to provide a rough sense of regulatory activity of the executive branch. For many reasons, this measure is extremely crude, but it reinforces two important points: that executive power has increased dramatically since World War II, and that in recent years any particular president such as Obama or Bush does not act much differently from his predecessors.
Will says that he’s not sure whether Brown is right or wrong as a matter of original meaning, and even if it is wrong, this kind of problem–a popular case being inconsistent with an interpretive theory–is not unique to originalism. Moreover, it is a mistake to judge an interpretive theory by its moral goodness, he says.
The last point is in tension with the first, and the first point is in tension with one of originalism’s supposed advantages–that it produces determinate results. But time and again, the original meaning turns out to be obscure, and so either courts must be willing to continually reevaluate precedents as new historical research is produced (which is unacceptable from the standpoint of judicial economy and legal stability) or the original meaning loses its ability to exert influence on legal outcomes as precedent accumulates. Will says in response to Klarman’s criticisms of McConnell that it’s really hard to determine what the original meaning of the 14th Amendment is, and new evidence and analysis constantly appear more than a century later, so maybe eventually we’ll agree that Brown is consistent with the original understanding after all. But this is a defect of originalism, not a virtue.
An interpretive method that can’t account for Brown, or treats it as an epicycle, is useless. It provides no guidance to people as they decide what laws to pass and how to plan their lives, or any guidance to judges who seek conscientiously to extend the constitutional tradition.
And this is why originalism must be based on moral considerations, as all constitutional theories must be–at least, if the goal is to persuade justices to overturn precedents and citizens and politicians to support those goals. A successful constitutional theory must appeal to institutional values that people (or enough people) share; otherwise, it is a purely theoretical construct with no practical relevance. (Originalism has done as well as it has because of the support it receives from conservatives and libertarians, who find the quasi-libertarian political culture of the founding era appealing.)
I’m not sure how otherwise one derives a justification for an interpretive methodology. From some readings and some of Will’s comments, I see two possibilities. First, originalism is right just because Americans are originalists. I don’t think that’s true. Americans support Brown and will continue to do so regardless of what historians eventually show.
Second, originalism is right because we are bound by a written constitution; it’s simply the consequence of a larger commitment to constitutionalism. But the constitution in practice is just what the various branches of government agree are the rules of the game at any given time. In their hands, the founding-era document is little more than a rhetorical flourish, used strategically. That is our political culture, one that happens to require ritual obeisance to the founders. Thus would the Roman priests examine the entrails of birds in preparation for a great political event. How long would one of those priests have lasted if he really thought he could discover in those entrails the will of the gods?
As I note in a comment on NYT’s Room for Debate, the “executive order” imbroglio coming out of the State of the Union speech is strange. The White House told newspapers before the speech that the president planned to sling about executive orders like Zeus with his thunderbolts, and they duly reported it on their front pages. Republicans duly exploded with outrage. The speech itself has a single mention of executive orders (“I will issue an executive order requiring federal contractors to pay their federally-funded employees a fair wage of at least $10.10 an hour”). The president continues in this vein, saying that he is going to do a bunch of other extremely minor things using his existing statutory authority, though it would be better if Congress would chip in with some legislation. The resulting controversy about presidential power is entirely manufactured–by both sides. Maybe the president’s strategy was to look fierce to his supporters while not actually doing anything that might get him in trouble with Congress.
In my response to their thought-provoking paper, I argued that the supposed fallacy that Eric and Adrian identify depends on empirical claims about judicial behavior in a way that they denied. My point was that although the targets of their critique may make different assumptions about what motivates judges and what motivates political actors in the other branches, those assumptions are not necessarily “inconsistent” if the different treatment is justified by the different institutional norms and constraints that operate on judges, as compared to other political actors (which I consider to be at least in part an empirical question). Neither this point – nor any other one I made – depends on controversial claims about the nature of truth or logical consistency, postmodern or otherwise.
In their brief rejoinders, Eric and Adrian continue to insist that their argument does not depend on any empirical claims about what motivates judges. But in so arguing, each of them contradicts himself and concedes my original point in the process.
Adrian first says of the kind of argument they were examining that “it is caught in a dilemma — it can survive filter (1) only by taking a form that causes it to be weeded out by filter (2).” I take Adrian to mean here that the argument can avoid the charge of inconsistency (filter (1)) but only at the cost of making implausible empirical assumptions about how judges act (filter (2)). But then he goes on to say that by the time we are considering the empirical question (filter (2)), “the fallacy has already dropped out by that point; it is not affected at all by whatever happens in the debate at the second stage.” But how can it be that the fallacy is “not affected” by what happens at the second stage if, as he has just said, it can “survive filter (1)” by making empirical claims that filter (2) then “weeds out”?
Eric makes the same error in even more efficient fashion. He says, “we sometimes argue that they escape the problem only by making implausible arguments. But the inside-outside problem does not depend on our skepticism about these specific arguments being correct.” Eric’s second sentence contradicts his first. He acknowledges that the targets of their critique can “escape the problem” (of inconsistency) by making what he considers to be implausible empirical arguments. But then he insists that their charge of inconsistency does not depend on those empirical arguments about judicial behavior being implausible. But how can that be the case if, as he has just said, the scholars can avoid inconsistency if those empirical arguments are correct?
I don’t think I’m the postmodernist in this debate.
I generally follow Johnson’s advice never to respond to critics, but this is the season for breaking resolutions. So let me offer a brief rejoinder to Charles Barzun’s response to the Posner/Vermeule paper on the Inside/Outside Fallacy; both are recently published by the University of Chicago Law Review.
Eric and I suppose that successful arguments (in constitutional theory, inter alia) must pass through two separate, independent and cumulative filters: (1) a requirement of logical consistency (the inside/outside fallacy is one way of violating this requirement); (2) a requirement of substantive plausibility (not ultimate correctness).
With respect to some of the particular arguments we discuss in the paper, we say that the argument is caught in a dilemma — it can survive filter (1) only by taking a form that causes it to be weeded out by filter (2). Now in some of those cases, I take it, Charles disagrees with us that the argument fails the second filter. He is of course entitled to his views about that. But the inside/outside fallacy — which is the first filter — is strictly about the logical consistency of assumptions, not their plausibility. Thus the fallacy has already dropped out by that point; it is not affected at all by whatever happens in the debate at the second stage. It’s just a muddle to say that because Eric and I do happen to have substantive views about what counts as plausible for purposes of the second filter, we are therefore smuggling substantive content into the first filter. Not so — unless one subscribes to the postmodern view that logical consistency is itself a substantive requirement, thereby jettisoning the distinction between validity and truth. (In some passages, Charles seems willing to abandon himself utterly to that hideous error, but for charity’s sake we ought not read him so, if we can help it).
So when Charles says that the inside/outside fallacy smuggles in substantive assumptions, I think that’s a confusion that arises from failing to understand the distinction between the two filters. The reader of Charles’s piece should be alert for skipping to and fro between these distinct questions of logical consistency and plausibility.
(And see Eric’s earlier reply.)
I examine the grudging case at Slate.
International organizations use a bewildering variety of voting rules. Courts, commissions, councils, and the General Assembly use majority rule. The WTO, the International Seabed Authority, the IMF, the World Bank, and the Security Council use various types of supermajority rule, sometimes with weighted voting, sometimes with voters divided into chambers that vote separately, sometimes with vetoes. The voting rules in the EU defy any simple description. Al Sykes and I try to bring some order to this mess in our new paper.
This book provides a nice history of the evolution of voting rules, with emphasis on supermajority rules, but is less successful in its attempt to argue that supermajority rule should presumptively be replaced with majority rule. Schwartzberg simultaneously argues that majority rule is superior to supermajority rule because the latter creates a bias in favor of the status quo, and acknowledges that a status quo bias is justified so that people can plan their lives. Her solution–what she calls “complex majoritarianism”–is the manipulation of majority rules so that they are applied to favor–the status quo. For example, she favors constitutional amendment requiring a temporally separated majority vote in the legislature (plus subsequent ratification), but the effect is just bias in favor of the status quo except in the unlikely event that preferences don’t change. She argues that this approach advances deliberation but deliberation can be encouraged in other ways and in any event the status quo bias is not resolved.
The book is right to emphasize historical, empirical, and institutional factors as opposed to the sometimes tiresome analytics of social choice theory–as emphasized by this enthusiastic review here–but Schwartzberg’s argument against supermajority is ultimately analytic itself, based on abstract considerations of human dignity, rather than grounded in history or empiricism. The empirical fact that the book doesn’t come to terms with is that supermajority rule is well-nigh universal, not only in constitutions but virtually every organization–clubs, corporations, civic associations, nonprofits–where people voluntarily come together and use supermajority rules to enhance stability and to prevent situational majorities from expropriating from minorities.
Simon Caney argues, in a welcome departure from the usual claims in this area of philosophy, that negotiating a climate treaty is not just a matter of distributing burdens fairly, but also requires a climate treaty that countries are actually willing to enter–”feasible,” to use the word that David Weisbach and I use in our book Climate Change Justice.
But he rejects our argument that the only feasible treaty is one that makes every state better off by its own lights relative to the world in which no treaty exists, and that if advocates, ethicists, and (more to the point) government officials insist that a treaty be fair (in the sense of forcing historical wrongdoers to pay, redistributing to the poor, or dividing burdens equally), there will never be such a treaty.
He says that if a government refuses to enter a fair but burdensome treaty because it knows that voters will punish it for complying, then that just means that voters have a duty not to punish the government, and instead to compel the government to act according to the philosopher’s sense of morality. But because voters don’t recognize such a duty, we are back where we started. His underlying assumption seems to be that voters will cause governments to act morally; ours is that voters will (at best) acquiesce in a treaty that avoids harms that are greater than the costs of compliance. So while, unlike many philosophers, he recognizes a feasibility constraint, he waters it down beyond recognition.
The EU’s recent backpedaling on climate rules shows once again that feasibility, not ethics, should be a necessary condition for proposals for distributing the burdens of a climate treaty.
Source: Cingranelli-Richards Human Rights Dataset (0 (bad) to 2 (good)).
Charles Barzun argues that Adrian Vermeule and I smuggled substantive assumptions into what we characterized as a methodological criticism about legal scholarship and judging. I don’t think he’s right. Our major example is the judge who says that he may settle a dispute between the executive and legislature based on the Madisonian theory that “ambition must be made to counteract ambition.” In appealing to Madison, the judge implicitly puts into question his own impartiality, as Madison was referring to the judiciary as well as the other branches. We didn’t argue that judges should never resolve disputes between the executive and the legislative, just that the judge (or, more plausibly, an academic) must supply a theory that does not set the judge outside the system.
Barzun thinks that we make “controversial claims about the nature of law and how judges decide cases,” in particular, that we make excessively skeptical assumptions about judicial motivation. I don’t think we do, but the major point is that our argument in this paper does not depend on such claims.
For example, suppose the judge responds to our argument by saying that he is in fact public-spirited, and only presidents and members of Congress are ambitious. That may well be so, but then he must abandon Madison’s argument and make his own as to why these are plausible assumptions about political behavior. If one shares the judge’s optimism about human nature, one might believe that the president and members of Congress are also public-spirited, in which case judicial intervention in an inter-branch clash may not be warranted. The judge can also, of course, make arguments about different institutional constraints, public attitudes, and so on, which may justify judicial intervention. But that is a different theory, different from the Madisonian theory that he and many scholars propound.
In the course of describing the various ways that scholars respond to the inside-outside problem, we sometimes argue that they escape the problem only by making implausible arguments. But the inside-outside problem does not depend on our skepticism about these specific arguments being correct, and our real point is that most of the time scholars and (especially) judges do not try to make such arguments but instead ignore the contradictions in which they entangle themselves.
David Bosco‘s new book tells the history of the International Criminal Court. It is nicely done and will be a reference for everyone who does work in this area. The conclusion will not surprise any observers: the ICC survived efforts at marginalization by great powers but only by confining its investigations to weak countries. Thus, the ICC operates de facto according to the initial U.S. proposal, rejected by other countries, to make ICC jurisdiction conditional on Security Council (and hence U.S.) approval.
Bosco seems to think this equilibrium can persist, but the book only touches on (perhaps because it is too recently written) the growing resentment of weak countries, above all African countries, which have woken up to the fact that the Court is used only against them, and have begun to murmur about withdrawing. The Court now faces political pressure to avoid trying not only westerners, but also Africans. Meanwhile, the Kenya trials are heading toward debacle, while the ICC is unable to address international criminals like Assad. The Court’s room to maneuver is shrinking rapidly, and one wonders whether it can sustain its snail’s pace (one conviction over a decade) much longer. The book might have been called “Just Roughness.”
What should originalists do about precedent? If they respect it, then the original meaning will be lost as a result of erroneous or non-originalist decisions that must be obeyed. if they disregard it, then Supreme Court doctrine is always up for grabs, subject to the latest historical scholarship or good-faith judicial disagreement (as illustrated by the competing Heller opinions). One can imagine intermediate approaches: for example, defer only to good originalist precedents, or defer only when a precedent has become really really entrenched. But while such approaches may delay the eventual disappearance of original meaning behind the encrustation of subsequent opinions, they cannot stop it, sooner or later. Our readings–Lawson, McGinnis & Rappaport, Nelson–provide no way out that I can see. (Lawson dismisses the problem, while the others propose intermediate approaches.) Originalism has an expiration date.
Another issue is raised by McDonald–the gun control case. In Heller, Scalia disregards precedent in order to implement what he thinks was the original understanding of the Second Amendment. In McDonald, he writes a concurrence that cheerfully combines Heller with the anti-originalist incorporation decisions. Why doesn’t he feel constrained to revisit those decisions? Instead, he joins a holding that generates constitutional doctrine that in practical terms is more remote from the original understanding (gun rights that constrain the states) than he would have if he had gone the other way in Heller (no gun rights at all), given the greater importance for policing of the state governments both at the founding and today. This is akin to the second-best problem in economics: partial originalism–originalism-and-precedent–may lead to outcomes that are less respectful to original understandings than non-originalist methodologies would.
All originalists acknowledge the “dead hand” problem, and so all agree that the normative case for originalism depends on the amendment procedure being adequate for keeping the constitution up to date. Or at least all of the originalists I have talked to (n=1). Yet it can be shown that the Article V amendment procedure is unlikely to be adequate, and the probability that it is adequate across time is virtually nil.
The reason is that outcomes produced by voting rules depend on the number of voters (and also the diversity of their interests but I will ignore that complication since it only reinforces the argument). An easy way of seeing this is to consider the strongest voting rule—unanimity—and imagine that people flip a coin when they vote (the coin flip reflects the diversity of their interests, not a failure to vote their interests), and can agree to change a law only when all voters produce heads. The probability of achieving unanimity with a population of 2 is 1/4 (only one chance of two heads out of four possible combinations), with a population of 3 is 1/8, and so on.
For a more rigorous formulation, consider a spatial model from 0 to 1, with a 2/3 supermajority rule. The status quo is chosen randomly (on average 1/2), and the population chooses whether to change it. If the population is 3, voters will change the outcome with probability of (near) 1, because 2 of the 3 people will draw an outcome greater than or less than 1/2 with probability of (near) 1. If the population is 6, there is now a non-trivial probability that 3 of the 6 people will be on one side of 1/2, and 3 people on the other side, so a 2/3 majority (4 people) will be unable to change the status quo.
The U.S. population has increased from 4 million at the time of the founding to 300 million today. If the amendment rules were optimal in 1789, they are not optimal today. If they are optimal today, then they won’t be optimal in a few years. Originalism with a fixed amendment process can be valid only with a static population.
There is a related argument that one can make based on the Buchanan/Tullock analysis of optimal voting rules. Thanks to Richard for a helpful email exchange.
The data source is the new Comparative Constitutions Project website. Compare to the growth of international human rights:
The graph shows increases in the number of human rights as recognized by the various human rights treaties when they went into force.
As I argue in Slate.
This short, good draft by Balkin (with a very high ratio of ideas to words) seeks to explain the rise of originalism. A starting point is that originalism is (virtually) uniquely an American phenomenon, and a national (not state) phenomenon. Next there is the central role of the founding as a unifying origin myth; the huge impact of the founders in our cultural memory; and the Protestant tradition with its preoccupation with sacred texts and yearning for a purifying return to the fundamentals. But why now? Jack thinks that originalism avant la lettre got started after the New Deal when Justice Hugo Black felt that he needed a justification for overcoming the New Deal quasi-tradition of judicial deference, and took off when conservatives realized that they could use it to bash Warren Court precedents plus Roe v. Wade. Maybe also it is a reaction to modernist anxieties about political foundations provoked by the radical constitutional innovations of the twentieth century.
I like this piece but my initial reaction is that Jack treats originalism as too much of an idiom–a cafeteria meal from which one may pick and choose–and doesn’t take seriously its constraining power in legal argument. While it’s true that Scalia and Thomas invoke it selectively, and the historical materials are frequently ambiguous, there is a reason it took off in the 1980s rather than the 1950s, and that is that originalism really is conservative, whereas the Supreme Court in the 1950s was liberal. The founders were conservative by today’s standards. They cared a lot about property rights, for example, and very little about discrimination against ethnic groups, sexual freedom, and so on (to say nothing of slavery). So I do not think originalism is as malleable as Jack does; it’s not like speaking Italian rather than French but exerts a right-wing gravitational pull. There is a reason (as the data show) that conservative justices are more likely to cite The Federalist than liberal justices are.
Adrian Vermeule’s new book, The Constitution of Risk, argues that much constitutional thinking follows a model of “precautionary constitutionalism,” where doctrines are designed to avoid worst-case outcomes. A better approach is what he calls “optimizing constitutionalism,” where such “political risks” are traded off rather than minimized. The Court of Appeals in Noel Canning, for example, appeared to be driven by a fear that if it upheld President Obama’s recess appointments, then presidents could tyrannize by avoiding the Senate altogether. It ignored the countervailing risk that if the recess appointment is limited, important offices would go unfilled. As Cass Sunstein has written in the area of regulation, the precautionary principle makes little sense on its own terms since there are always risks on all sides, and leads to pretty unattractive outcomes even when it can be applied. It’s as if we should all stay in our basements rather than take the risk that flower pot will fall on our heads if we go outside.
Among the many excellent insights, the one I found most striking was the claim that much traditional constitutional thinking and doctrine has a precautionary-principle cast to it, and is thus vulnerable to the same criticisms as that principle is.
John Coates recently posted a paper on SSRN entitled Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications. This topic has been important ever since the D.C. Circuit struck down an SEC regulation for failing CBA in Business Roundtable in 2011. Glen Weyl and I held a conference on the topic last fall, and have written several papers arguing that, whatever one thinks of the reasoning in the (justly criticized) Business Roundtable case, CBA is the way to go.
The core of Coates’ paper is a description of efforts by agencies (and other institutions or persons) to perform CBAs of six major financial regulations. Coates persuasively argues that the existing CBAs fall flat and expresses skepticism that it is even possible, given the current state of knowledge, for meaningful CBAs of financial regulations (or certain financial regulations) to be conducted. What valuation should we assign to an avoided financial crisis? Hard to say. Coates concludes that while it makes sense for agencies to engage in cost-benefit balancing using rough guesstimates, their efforts should not be subject to judicial review.
Coates’ argument is sensible, but I am more optimistic than he is about the capacity of agencies to come up with numbers. This criticism–and many others that Coates makes–could be (and have been) made about other forms of CBA, for example, CBA of environmental regulation, which has improved greatly over the last 30 years but remains far from perfect. The fact is that when an agency proposes a capital adequacy rule, it is using an implicit valuation for an avoided crisis. The agency should be required to make that valuation explicit, and defend it. We can agree that a wide range of valuations is acceptable and also believe that public discussion of the range is useful.
I have mixed feelings about his criticisms of judicial review. On the one hand, it seems likely that if courts rigorously applied CBA to new financial regulations, we would not have any new financial regulations (a bad thing), at least not for some time. On the other hand, I’m not sure what will encourage agencies to perform CBAs properly–and this means paying money to consulting firms to generate valuations–if judicial review does not take place. OIRA has encouraged non-financial agencies to use CBA, but OIRA has more limited authority over the financial agencies–none at all in the case of the Fed.
Will asks whether originalists should be heartened or troubled by Campbell’s debunking of Justice Scalia’s historical analysis in Printz. However, the majority opinion is not originalist at all. Scalia doesn’t address the historical materials with any rigor; he argues (quite candidly) that the anti-commandeering principle is consistent with the historical record, not that it emerges from the best reading of the historical record. Where does that principle come from? Precedent: “Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court.” Scalia thinks that New York v. U.S. controls, and the weak foundation-era history provides no basis for overturning it. Would Scalia have switched sides if Campbell’s work had been before him? Hard to know, but I would not advise Congress that it is now free to commandeer.
On The Federalist Papers, given the specific political use for which they were written and published, there is little reason to believe that they represent a general account of the original understanding as it existed in all 13 states. The reason that The Federalist has fetish-value today is simple: it has been cited over and over by the Supreme Court, and so has become a source of constitutional law that supplements the text and other materials.
Source: Westlaw, Supreme Court Compendium (thanks Lee and Bill). N.B.: I’m not distinguishing majority and other opinions. I suspect JM appears in more majority opinions as time passes. (The y variable is the number of cases in which at least one opinion cites JM divided by total number of cases for that year.)
This is the title of a new book edited by Cary Coglianese, Adam M. Finkel , and Christopher Carrigan. The book contains a chapter by me and Jonathan Masur, which builds on, and responds to criticisms of, our earlier article, Regulation, Unemployment, and Cost-Benefit Analysis. In the chapter and article, we argue that when agencies conduct cost-benefit analysis, they should take into account the effects of regulations on job loss.
The book has a broader scope. It focuses also on the larger question on whether regulation kills jobs. The answer, unavoidably, is sometimes. Our view is that even when it does, regulations are justified when the benefits are large enough, and agencies need to make sure this is the case by conducting cost-benefit analysis properly.
Here is my Slate piece criticizing the originalist argument for ruling that President Obama violated the recess appointments clause. A while back I criticized the “the” argument. (Slate used the genius-level headline “Indefinite Articles”). Will Baude co-authored an interesting amicus brief that makes the originalist case for affirming and further argues that if you’re not an originalist, you should defer to the Senate’s right to define what a session is, so either way the president loses.
New paper on SSRN:
The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of judicial performance, that competence seems to matter in promotions in that the least competent judges do not get elevated. But the judges who score the highest on our competence measures also do not get elevated. So, while there is no loser’s reward, there may be something of a winner’s curse, where those with the highest levels of competence hurt their chances of elevation.
Will says that the Supreme Court could have held in favor of Heller on simpler and more intuitive grounds than those laid out in Scalia’s opinion. The purpose of my earlier post was not to argue that a well-reasoned originalist opinion could not be written but to point out that the actual opinions (by Scalia and Stevens) were poorly reasoned and written, and to raise the suggestion that originalism, as practiced by judges, lends itself to bad historical reasoning because judges are not historians but lawyers, and (by necessity) do law-office history rather than real history. Indeed, this very point about the difference between history and law-history is Will’s (“what seems like an intractable historical debate is really solved by a legal or interpretive question about what kind of history matters”). But if Will is right, this disconnects originalism from one of the theoretical reasons for its appeal.
The very reason identified by Michael Rappaport, who says that originalism is appealing because the “idea that a written law should have the meaning that it had at the time of its enactment seems extremely intuitive and part of how we understand legislation and other written enactments.” Exactly: the real understanding, not the understanding that is constructed from legal rules that permit some types of evidence and exclude others–the presumptions, fictions, and tie-breakers that are necessary to facilitate decision-making and enhance the predictability of law. But this is in tension with his statement “the ordinary person is usually an originalist.” Maybe a historical originalist but not a law-office originalist.
But I’m not so sure that the ordinary person is any kind of originalist, because it’s pretty clear that the ordinary person has all kinds of ideas about what his constitutional rights are that cannot be traced to the original understanding—for example, that the national government cannot discriminate on the basis of race, or that government can’t censor artistic expression that offends community standards. In fact, the direction of causation probably goes the other way: people read into history whatever constitutional rights they think they should have now. Our constitutional culture is the residuum of a struggle to reduce the cognitive dissonance between reverence for the founding generation and commitments to modern-day rights and government structure.
Suppose you agree with Madison’s theory that the government should be divided into three branches so that the ambition of each counteracts the ambition of the others. Now a case like Noel Canning arises, in which the executive clashes with the legislature. You ask the Supreme Court to resolve the dispute by enforcing the original understanding of the Constitution, tradition, or whatever other relevant factor under your favorite constitutional theory. Is your prescription consistent with your diagnosis of the problem? Can a (by hypothesis) ambitious judicial branch be expected to resolve a dispute fairly between the other two branches? Wouldn’t it instead resolve the dispute in a manner that maximizes its own power? In which case, why should you bother to argue that it should do otherwise?
These questions are the topic of a new paper I wrote with Adrian Vermeule, just published in the University of Chicago Law Review.
Speaking of originalism, in Slate I criticize originalist arguments made in amicus briefs for the Noel Canning case, which will be argued next Monday. I fear that the Supreme Court’s Noel Canning opinion will be another Heller.
For our first meeting of the originalism seminar tomorrow, we’re reading Heller, the Sunstein/Barnett debate, and the Brest article. Here are some (possibly leading) questions for students to think about ahead of class. If time permits, I will provide my own answers in a later post.
Does this case represent the triumph of originalism because both sides dwell on the original understanding of the Second Amendment or a failure because they don’t agree on what it is? One argument for originalism is that it constrains judicial discretion; well, does it?
Does Scalia or Stevens provide the better account of the meaning of the Second Amendment? One thing to ask yourself is how carefully you think the drafters of the Constitution chose these words, and whether the people who approved the Constitution thought about them as carefully as the Court implies. In this connection, my eye was caught by Scalia’s statement that “the fact that the phrase [‘bear arms’] was commonly used in a particular context does not show that it is limited to that context.” Sensible way to interpret a clause?
Do you think a historian who was conscientiously trying to figure out how people understood the Second Amendment would write the way Scalia and Stevens do?
Justice Scalia says Miller does not control the Court because it was not a thorough examination of the Second Amendment. What if it had been—but had come out the other way, like Stevens’ opinion? Would Scalia have decided Heller differently?
What are the politics of originalism—and the politics of those who criticize originalism? Is originalism “conservative,” or, as Sunstein argues, “radical” (or “fundamentalist”), or neither? Note the disagreements about rhetoric as well as politics and law. Is it unfair to refer to a “Lost Constitution” or a “Constitution in Exile”?
What is their core disagreement about originalism? Notice that Barnett returns again and again to the question of judicial discretion, and Sunstein to the question of good outcomes (do we want to live under a Constitution that permits the government to discriminate on the basis of race and sex?). Do they engage? To what extent does the argument for originalism depend on the argument against its alternatives?
“The interpreter’s understanding of the original understanding may be so indeterminate as to undermine the rationale for originalism” (p. 222). Comment.
What entrenched and/or popular constitutional doctrines does originalism rule out? See p. 224 and refer back to Sunstein and Barnett.
What are the “ends of constitutional government” that a good theory of constitutional interpretation must serve, according to Brest? Do you agree with Brest that those are the ends of constitutional government? And how do they connect up with the Ely/Bickel approach that Brest commends?
This quarter I co-teach a seminar on Originalism and Its Critics with my new colleague, Will Baude. I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing to so many people (but mainly conservatives), and why it plays such an important role (at least, as a matter of rhetoric) in constitutional politics. If you are interested, here is our syllabus (Originalism and Its Critics syllabus dec. 12). I will post reactions to the articles as I read them, and perhaps Will will post his own reactions at the Volokh Conspiracy where he blogs.
Adam Liptak likes to torment law professors by regularly quoting judges who do not read law review articles. However, a more rigorous test of Liptak’s hypothesis that legal scholarship has no social value is called for, and so below I report some early results from a test that uses event-study methodology familiar from securities class action litigation.
My starting assumption is that if legal scholarship has social value, the publication of any major piece of legal scholarship should be visible in stock market returns. I start with one of the most prominent law books of all–Ronald Dworkin’s Law’s Empire, which was published on January 1, 1986.
Alas, there is no evidence that Law’s Empire had a favorable impact on stock market returns. Thinking that this was perhaps anomalous, I checked Freedom’s Law, which was published on February 27, 1997.
Again, nothing. A possible explanation is that Dworkin was a lefty, and so his scholarship would most likely have a negative impact on the economy. Accordingly, I also checked the stock-market impact of Antonin Scalia’s A Matter of Interpretation.
Another discouraging result. Yet I take some comfort in the thought that I have not fully controlled for endogeneity. Maybe, for example, Dworkin timed the release of his books to coincide with declines in the stock market, when a despairing public would seek refuge in philosophical contemplation. Or maybe stock prices incorporated the impact of Scalia at the time of his birth in 1936, as the Efficient Capital Market Hypothesis implies. I believe that these possibilities should be investigated in future research conducted by others.
The x-axis shows the five years before and after a country ratified the CAT. Year 0 is the year that the country ratified the CAT. For example, year 0 for the United States was 1994, while year 0 for Nicaragua was 2005. The line shows the average torture score for countries during the five years leading up to ratification and the five years following ratification (where 0 refers to frequent torture and 2 refers to no torture). If the average country had reduced torture during this period, then the line would have sloped up. The data source is Cingranelli-Richards.
Or so I argue in Slate. Moreover, I believe that advances in Internet communications, data storage, data analysis, search, video surveillance, drones, and sensor technology will eventually render obsolete legal and constitutional privacy protections as they are currently understood. That, in the long run, the “assumption of risk” fiction of Smith will expand, not (as everyone believes) contract. That people will voluntarily give up information to the government in return for security against crime and foreign threats, in the same way that they give up information to Google in return for marginally better search results. That they will not think of themselves as compromising their independence or privacy, just as no one (aside from a tiny minority of privacy advocates) who uses Google really thinks of himself as giving up his independence or privacy. That the resulting society will not resemble 1984 in any meaningful sense (though it may resemble a Philip Dick novel).
Tim Wu argues that they should. Survey or review articles, which summarize the state of research but do not make original contributions, are common in other fields, and as Wu explains, there are good reasons for them.
The problem with Wu’s proposal is that law reviews already publish survey articles. They are the first 40 or so pages of nearly every law review article, with the original contribution starting on p. 41. Scholars in other fields do not write articles in this way because they do not need to explain to editors–who are experienced scholars and also rely on referees who are experts on the topic–why their article is a contribution. Because law students screen law review articles, and law students do not know any legal scholarship, every author must start anew with yet another redundant survey that sets the stage for his contribution. So there is no demand for survey articles–if you want to read a survey of customary international law, just find the latest article on this topic and read the first forty pages–and so no reason for people to produce them.