Category Archives: MISC.

Uber and the law of large numbers

An interesting article here in the NYT about the “Uber model.” Uber drivers enjoy flexibility–they can drive whenever they want–partly because the app connects them to customers but mainly because there are so many drivers. People who want rides can get them because of the high probability of a nearby riderless Uber car. The author argues that this model can be applied to many other settings, including legal services and medicine. A doc with a bit of spare time can make himself available via app and you might consult him if you happen to be nearby.

The relevant law here is not the law of taxi or doctor licensing but the law of large numbers. It’s what ensures that someone is nearby when you need him, even though drivers and doctors have all kinds of other unpredictable commitments, given a large enough pool. I tell my students that the most important law in banking regulation is the law of large numbers. It’s what makes it possible for a bank to offer money in a steady way to borrowers when the bank’s own lenders–short-term depositors–might need their money on a moment’s notice. The Uber model is, at bottom, the bank model.

If torture can ever be morally justified, why should the ban on it be absolute?

In the NYT, the philosopher Jeff McMahan argues that torture is almost always morally wrong, but he believes that in certain cases–when it is used to prevent a greater evil like killing or mass killing–it is morally permissible or even morally obligatory. Yet he believes that torture should be banned even then. That doesn’t seem to follow. If McMahan’s moral position is correct, shouldn’t the law permit torture just in those conditions when it is morally permissible, and otherwise ban it?

As far as I can tell, his answer is that morally justified torture may be so rare that it can be safely ruled out by an absolute ban. That may well be right; maybe that is the lesson of the Bush torture debacle. But it does seem puzzling. Consider shooting-to-kill. Shooting-to-kill is also a horrible thing to do to people (worse than all but the most extreme forms of torture), and it is rarely justified. Yet police officers are permitted to shoot-to-kill in order to prevent greater evils. Even after recent events suggesting abuse  and discrimination in police shootings, no one wants to impose an absolute ban on them.

McMahan, like other philosophers (such as Henry Shue, who is mentioned in the piece) who both want to ban torture but believe that it is sometimes morally justified, can’t bring himself to enforce the absolute ban with absolute strictness. Instead, courts should be allowed to exercise leniency. Yet McMahan appears to believe that the agent cannot be excused. Some punishment (a very light punishment?) must be imposed.

But why exactly? Why would you punish (even lightly, as in this famous German case) someone for engaging in a (by hypothesis) morally permissible or even morally obligatory act of torture? The answer seems to be that if you don’t, then other agents will engage in torture that is morally wrong. I confess I have never understood this argument. Doesn’t the logic of it suggest that we should prohibit the police from morally justified shootings because if we don’t, police will engage in morally unjustified shootings?

Or taken from the other side, if leniency is permitted, why shouldn’t we worry that the prospect of leniency will encourage agents to engage in wrongful acts of torture? After all, if non-punishment of morally justified torture will encourage wrongful torture, as McMahan claims, why wouldn’t lenient punishment of morally justified torture also encourage wrongful torture? The effort to split the difference by banning torture but providing for leniency seems arbitrary.

Let’s go back to police shootings. Possibly, torture can be distinguished. One distinction is that police shootings are usually (almost always?) morally justified, whereas acts of torture are almost never morally justified. But do we actually know this? The reason that police shootings are usually morally justified, or seem to be, is that the police are given training, and police shootings are always investigated carefully. There is no comparable institutional infrastructure for torture. Maybe if there were, acts of torture would seem as morally justified as police shootings (although no doubt much rarer).

Arguments like McMahan’s, which are scattered throughout the philosophy literature, always seem to be based on psychological (about how people respond to incentives) and institutional assumptions (about how organizations operate) that are not articulated.

More flip-flops

At Slate. This is based on the paper I’ve written with Cass Sunstein. The Slate piece discusses some surveys that we did (the paper provides more detail). If you have any comments on them (or the paper), please email me. We could do some more surveys if you have ideas.

Institutional flip-flops

People constantly accuse politicians, judges, and commentators of flip-flopping on institutional issues. Republicans who objected to filibusters of Bush’s nominees now defend the practice as applied to Obama’s–and the Democrats who defended filibustering then attack it now. Most of the liberal commentators who accused Bush of abusing executive power have now fallen silent, while the earlier Republican defenders of Bush have now, under Obama, discovered the dangers of the imperial presidency. Justices who appeal to the majesty of democratic rule in the course of upholding a statute today turn around and strike down a statute despite majority support for it tomorrow. And so on.

Many flip-flops reflect meaningless political posturing, but so do many of the accusations of flip-flopping. An apparent flip-flop can turn out to be nothing of the sort once one pierces the often sloppy rhetoric. Perhaps real flip-flops can be justified as the result of learning, at least to a limited extent. But beneath the surface, there is much of interest. Flip-flopping can result from an ambiguous or unsettled institutional norm. People are not just posturing but trying to get the norm settled in a way that advances their interests.

Much more can be said, and is said, in a new paper that I have written with Cass Sunstein, available at SSRN.

The Charlie Hebdo attack and liberty-liberty tradeoffs

Terrorist attacks generate a familiar pattern in public debate. First, conservatives (and often middle-of-the-road types) argue that the government’s failure to stop the terrorist attack shows that counterterrorism policy is too weak. Then, liberals (and often other middle-of-the-road types) argue that we should not strengthen counterterrorism measures if doing so will sacrifice our civil liberties to security. This sets up a debate about security versus liberty. Typically, civil libertarians argue that there really is no tradeoff (an argument I have never understood), or (more plausibly but I think wrongly) that the government will inevitably put too much weight on security and not enough on liberty. An important subtheme, one that resonates with American historical experience and mythology, is that the people who put more weight on security are cowards who sell our liberties too cheaply.

Thus, the rhetoric. In truth, there is liberty on both sides of the equation. People who fear terrorist attacks lose some of their liberty as they avoid airplanes and public places; and the people who die in those attacks lose their liberty along with their lives. Nonetheless, it is undeniable that the civil libertarian position is understood to place greater weight on due process than on security, and that position has very powerful resonance in our society, perhaps because of distrust of the government.

The Charlie Hebdo attack has not followed this pattern for an interesting reason. The attack, both by design and in effect, was targeted at a liberty–freedom of expression. In this respect, the attack is unique among all the terrorist attacks since 9/11, none of which singled out freedom of expression as a target among all the western vices. The planned French crackdown on civil liberties thus sets up a clearer, harder-to-deny, liberty-liberty tradeoff: liberty from surveillance, arbitrary detention, and the like, versus liberty to speak one’s mind. It’s harder for a civil libertarian to argue that “mere” security is at stake, that principled people must oppose stricter counterterrorism measures.

This tradeoff has not yet received much attention, though it is implicit in the debate about whether Charlie Hebdo’s speech was really worth defending. Civil libertarians should ask themselves: if greater censorship in France made the French safer, with the result that they don’t need to give police greater surveillance and detention powers, would they be better off or worse off?

This is the most important policy question that has emerged from the attack. Why has no one asked it?

The case for Uber-regulation

I make the case in Slate, which is that the market for short-term, on-demand car rides is inherently monopolistic. That is in fact why taxi regulation exists, and always has, virtually everywhere. The Slate piece arose from some initial thoughts in this blog post, further stimulated by Ilya Somin’s criticisms of that post. One point of disagreement centers around how to interpret people who consent to and then complain about surge pricing. Somin thinks they are irrational. I think they are reasonably concerned that they are being overcharged. The underlying problem is the high cost of search in this market, as explained in the Gallick & Sisk JLEO paper I cite. There is an interesting sense in which Uber’s disruption of the taxi market replays an earlier disruption in the 1920s when mass-produced automobiles threatened to unravel taxi pricing with the introduction of part-time drivers who skimmed off the best fares.

Is opposition to Uber’s surge pricing irrational?

Everyone says it is. Here, for example, is a representative statement from Ilya Somin. The argument is just that unregulated markets are efficient and therefore price caps are inefficient. Somin concludes that everyone opposed to surge pricing is irrational or ignorant.

I don’t oppose surge pricing but I don’t think Somin is right.

1. Although a practice may be efficient, it doesn’t follow that everyone is made better off by it. People rationally oppose surge pricing as long as they value the dollar savings resulting from a price cap more than the extra time they spend waiting for an Uber car or taxi to show up. These people oppose an efficient practice that happens to harm them. What’s so irrational about that? In fact, the contrary view would be irrational.

2. When surge pricing comes into effect, there is an undersupply of cars. This means that Uber has market power. Taxis can’t raise their prices, and Lyft apparently won’t match Uber’s price above a threshold. This means that for the class of people who will pay the surge price, there is no meaningful competition. It doesn’t take much imagination to believe that Uber–which takes infantile pride in its ruthlessness–will charge a price that eats up as much of the consumer surplus as possible, in the process pricing some passengers out of the market.

This is not an argument for banning surge pricing or even regulating it. It’s possible that Uber’s monopoly profits will bring in additional competition, or that the threat of additional competition keeps Uber in line, and that’s what we usually assume in antitrust law, so we let the Ubers of the world charge supracompetitive prices except in egregious circumstances. But people’s efforts to shame Uber into lowering its surge prices may not only be in their self-interest; they may serve social welfare as well.

3. Everyone thinks of Uber as an app that allows drivers and passengers to match. But also think of Uber as an efficient way of cartelizing drivers and obtaining and analyzing the data of passengers so as to maximize revenues. (Can Uber determine your price sensitivity based on past trips? Probably. Does it exploit that information by varying prices by passenger type? Maybe not. Yet.) True, Uber is a better cartel than the taxis. True also, many Uber drivers did not offer services before Uber organized them. But not everything Uber does is by definition a good thing.

Is the “norm” or taboo against torture dead (continued)?

torture bubbleAs I noted a few days ago, Christopher Kutz argues that the anti-torture norm is (or might be) dead. Another way of putting this claim is that the longstanding taboo against torture has lapsed. A practice is taboo if not only it is forbidden but open debate about it is forbidden. Anyone who challenges the taboo will be regarded as tainted or contaminated, as outside the community. Contrary to what we like to think, hundreds of taboos flourish in American society, as many I’m sure as in any of the tribal societies studied by early anthropologists from which the term was adopted. Our taboos surround not only religion, but also race, gender relations, and the treatment of children. Free speech is firmly entrenched in the law but anyone who thinks that one can speak freely about these topics without risking significant social sanctions hasn’t been paying attention. Taboos constantly change (many sexual taboos have lapsed, just in the last few decades), but while they prevail they are extremely powerful.

The process by which taboos break down is mysterious; Kutz doesn’t really explain why the torture taboo has eroded if it has. At least part of the explanation must lie with technological change that causes people to question traditional prohibitions. The invention of modern forms of birth control made many of the taboos surrounding sex, which may at some earlier time have been broadly functional (in the sense of protecting people from the burdens of unwanted children or quelling social conflict), seem nonsensical. Yet the erosion of those taboos (not yet complete) was complicated. People had to be motivated to challenge the taboos and endure social sanctions. Sexual desire is a potent motivation, and eventually the arguments could not be ignored. But if there is no strong incentive to challenge taboos–as may be the case with taboos that don’t ban behavioral anyone really wants to engage in (like cannibalism)–then they are likely to persist.

If the torture taboo is eroding, then the explanation must be different from change in technology. The torture technologies used by the CIA are decades, even hundreds of years, old. And as is common with many taboos, the prohibition was never complete–U.S. government has committed torture before (just as incest takes place despite the incest taboo); what’s new is that torture is openly discussed as a legitimate policy option, by some people. In the 1990s and earlier, the U.S. engaged in torture through proxies, and no one talked about torture used by American combat soldiers in wartime. What seems to have happened is that an unusual configuration of events–the 9/11 attack, the earlier enactment of torture laws that forced the CIA to seek legal cover through a Justice Department opinion, relatively new norms of government openness, and so on–forced torture out into the open, where it could no longer be ignored.

You can see the persistent taboo-like character of torture in the debates surrounding the CIA’s interrogation practices. Many of the critics feel compelled both to argue against torture (“it doesn’t work,” “it violates our values”), and to argue that this argument is unnecessary because torture is plainly wrong or off the table (“it’s not who we are”). But the mere making of the first argument, which often requires elaborate claims about how institutions work, contradicts the second. Torture (unlike, say, cannibalism or incest) then becomes a matter of debate, perhaps like any other policy. The real force of the much-derided ticking time-bomb hypothetical is not that it provides a policy justification for institutionalized torture, but that it explodes the taboo. If you agree that torture may be acceptable in this setting, then you can argue against its expansion to less extreme scenarios only by making complicated empirical and institutional arguments that can be debated by people who have different intuitions.

I wonder whether the prosecutions that the CIA’s critics desire would have the perverse effect, even if they are successful, of further unraveling the taboo. In a court of law, defense lawyers will argue that their clients acted reasonably, and to do so, they will elicit testimony that some interrogation practices that amount to torture are actually effective. Whether or not this testimony is persuasive, the mere fact that it is introduced and debated will help remove torture from the realm of the taboo. Like so many (actually nearly all) police practices, there is just no reliable evidence of efficacy, in one direction or the other, and in such cases courts tend to defer to the judgment of experts. Whatever the outcome of the prosecutions, the efficacy of torture becomes merely an empirical question, deserving of further study perhaps, one about which reasonable people may differ–in which case it can’t be taboo.

This is, I think, what happened in the gay marriage cases, which helped destroy another taboo that until recently was extremely powerful. The importance of the evidence introduced in those cases was not so much that it supported the case for same-sex marriage but that it showed the question of same-sex marriage is an empirical one. Once empirical doubts are recognized, they cannot displace powerful equality norms.

Vermeule replies to Baude: A Pre-Chevron mind?

From Adrian Vermeule:

Thanks to Will Baude for his thoughts on our paper project (see here and here for our puzzles and conjectures). It’s interesting that the proposal for judges to take into account the votes of other judges provokes a kind of instinctive resistance. But it’s not clear what exactly the objection is. Some possibilities:

(1) Will seems implicitly to assume that “textualists” and “purposivists” inhabit different methodological universes, so that judges in one camp would obtain no information from considering the views of judges in the other. That’s not how interpretation works, however. Purposivist judges are certainly interested in text and canons, in part because those things supply evidence of the purposes that a reasonable legislator might have. Conversely, many textualist judges, like Holmes, have been willing to examine legislative history and other extra-textual sources as evidence that might shed light on the ordinary meaning of text.

But even when textualist judges eschew legislative history altogether, that does not mean there is no overlap between their approach to interpretation and that of purposivist judges. Schematically, it is not the case that textualist judges consider sources or arguments {A, B, C} while purposivist judges consider sources or arguments {D, E, F}. Rather closer to the truth is a schema in which textualists consider {A, B, C} while purposivists consider {B, C, D}, or even {A, B, C, D}. This implies that judges in both camps will often gain relevant information — relevant even on their own theories — from observing the votes of other judges, even judges in other camps. And, of course, most judges are not theoretical at all, and just consider all sources and arguments in a sort of promiscuous jumble.

(2) Will also seems to think it important that judges in each camp think their own theory “correct” (Will’s italics). Under the Chevron framework, however, even if I think I am correct, the question I have to answer is whether I think the other person’s view is not only wrong, all things considered, but is actually unreasonable. The whole point of Chevron is to create space for that distinction. It is a symptom of a pre-Chevron mind (sub-Chevron mind?) to conflate these two questions, assuming that if my view is correct, yours must be beyond the pale. There is an interesting, under-explored question whether Chevron implies that agencies should have a kind of meta-discretion to choose among reasonable theories of interpretation. But the fact that proponents of competing views think their views correct will not help us figure that out.

(3) Yet another separate question, which we flagged in our opening posts, is whether and under what conditions it is systemically desirable for a given judge to take any of this information into account. We think that is the critical question for the paper, which will attempt to sift out the conditions under which it is or is not desirable. Will points out that sometimes it is better for decisionmakers not to attempt to consider all available information; certainly that is true. But he seems to assume that throwing away this particular category of information is necessarily desirable in all settings. His confidence in that approach seems to outrun the available evidence and theory, as far as we can see. It’s an interesting puzzle why our proposal provokes such a reaction.

How norms die: Torture and assassination in American security policy

That’s the title of a paper by Christopher Kutz in Ethics & International Affairs. Kutz argues that that there was a “norm” against torture and assassination in American policy until 9/11. Although these norms were violated from time to time, this was done so surreptitiously, and generally speaking policymakers believed that torture and assassination were off the table as policy options rather than choices that could be subject to moral balancing. (I think he is more likely right about torture than assassination so I will confine myself to torture henceforth.)

Kutz believes that the anti-torture norm is (probably) dead; the best evidence of this is that public opinion polls suggest that most Americans think that torture is now acceptable in limited cases. There is no public pressure to punish the Bush administration torturers. Kutz makes the interesting point that in government the greatest opposition to torture came from the military and FBI where an honor-based ethic prevails. Civilian policymakers overruled or worked around these “professional cadres,” based on a utilitarian approach in a panic atmosphere where the consequences of failing to capture terrorists were thought to be catastrophic.

As I interpret Kutz, the anti-torture norm could prevail as long as there was no major threat to U.S. security. Once this threat materialized, all bets were off. But on this view, the anti-torture norm was not a very strong norm. Torture was just not an issue, it was never thought to be needed, and so anyone who proposed it as a policy would have been regarded as a sadist, and so no one did.

I think Kutz misses another dimension. In the nineteenth century, the Great Powers made a distinction between civilized powers (themselves) and “savages” (the rest of the world). The humanitarian norms that they observed applied only to limited wars among themselves; they were suspended when dealing with tribal groups, which they sought either to wipe our or to subordinate. In the twentieth century, the norms collapsed even among the Great Powers when wars became unlimited.

Thus, as I have argued in various places, what keeps norms in place is a strategy of reciprocity. Great powers fight limited wars with the expectation that peace will return; all sides gain if the war can be kept as a test of strength and a descent into barbarism is avoided. Governments abandon those norms in two cases: (1) when they see themselves as fighting to the death; and (2) when they confront opponents that don’t comply with them themselves. Al Qaeda was a toxic combination of both of these factors.

So another way to see the change in moral psychology that Katz describes is as a recognition that norms thought be universal–at a time (really, only the 1990s) when the United States considered itself fully secure–were in fact restricted to those the United States regarded as “civilized.” (“Terrorist” has become a quasi-synonym for “savage” as that word was used in the nineteenth century: a person who does not follow certain norms that restrict the use of violence.)

Kutz makes another interesting observation; I quote from the abstract:

While democracies surely do better than authoritarian regimes in adopting and internalizing certain kinds of constraints, in part because of a greater sensitivity to public mobilization around normative questions, that same sensitivity makes the long-term survival of these norms precarious. But in a democracy the values and arguments of those cadres [the military, etc.] are susceptible to being undermined by a combination of public panic and the invocation by policymakers of a public interest that can override the claims both of law and pragmatic restraint. Democracy, hence, can be at the same time both fertile and toxic: fertile as a source of humanitarian values and institutions, but toxic to the very institutions it cultivates.

I don’t think this is right. Authoritarian regimes routinely use torture against domestic political opponents; democracies hardly ever do. What the two regimes share is that they place little weight on the interests of people who live beyond their borders.

Why Obama won’t prosecute those responsible for torture

I explain the legal and normative problems with prosecution in Slate.

My colleague Richard McAdams pointed out to me another law that would frustrate prosecution, one that I missed and has not received much attention in the press. The Detainee Treatment Act of 2005 says:

In any … criminal prosecution against an … agent of the United States Government … arising out of the … agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, … and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such … agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

42 U.S.C.A. § 2000dd-1.

Mistake of law provides a defense for all CIA agents acting within the parameters of OLC’s legal advice.

ACLU’s Romero on pardoning Bush and others

Anthony Romero, executive director of the ACLU, argues in The New York Times that Obama should pardon Bush and all the others involved in the torture program. Not because he thinks they acted rightly. Quite the contrary: pardons

may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware.

The logic is faulty; interrogators who use torture in the future will expect to be pardoned just like their predecessors. Whether you call non-prosecution a “pardon” or not, it amounts to the same thing. But what is most odd is that a civil libertarian believes that the president should tar people as criminals without giving them the benefit of a trial.

Romero, like the supporters of torture, do what people always do when Congress or the courts can’t, or won’t, do what they want. They turn to the president and demand executive action.

 

The Votes of Other Judges, Part II

The following post was co-written with Adrian Vermeule.

In our previous post, we set out some puzzles about how judges should take into account the votes of other judges. Here, we sketch out some tentative answers.

Imagine that each Justice reads the statute and the briefs, and reaches a preliminary conclusion about the meaning of the statue. The Justice also has a level of confidence (high, low, middling) about her own interpretation. For example, a Justice might believe that the meaning is X with a probability of 0.99, 0.9, 0.6, 0.5, or 0.1 (which is the same as saying that she believes the meaning is Y with a probability of 0.01, 0.1, 0.4, 0.5, or 0.9). A Justice with a high confidence level believes that the statute is clear; a Justice with a confidence level in the neighborhood of 0.5 believes that the statute is ambiguous.

A Justice should update her prior in light of the information that she receives from the other Justices. If voting is sequential, then each Justice should update based on the Justices who voted before her. If voting is simultaneous, then such updating is not possible immediately—but let us suppose that Justices can change their votes in a second round of voting. Each Justice should take into account not only the number of votes for each meaning, but the confidence level of the Justices who cast those votes. A Justice who votes for X with confidence level 0.51 is not as informative as a Justice who votes for X with confidence level 0.9. It may, however, be difficult to gauge confidence level—it is certainly more difficult to gauge confidence level than the vote itself. We can imagine that Justices may try to reveal their confidence level when they cast their vote (“I’m really not sure, but for the moment X seems more plausible to me”). This may not always be the case, but let’s assume it is. Now let’s go to the questions from last post.

(1) If the initial vote reveals a 5-4 split in favor of meaning X, and all justices (sincerely) claim to be confident, then they should all certainly update their views. How they update their views is complicated. If you are confident enough, then you should presumptively not update your views; but if enough people are arrayed against you, and they are confident as well, then you should. But in this example, it certainly seems that each Justice should decide that the statute is ambiguous (by which we mean, she believes that the meaning is X with probability only slightly higher than 0.5).

(2) The second case involves a 5-4 split, where the 5 believes that the statute clearly means X, and the 4 say that the statute is ambiguous. Let’s suppose that this means that the 5 attach probability 0.9 that the statute means X, and the 4 attach probability 0.5 that the statute means X. Given these precise numbers, the 4 should update their views and agree with the 5 (while the 5 should update their views only slightly); but different numbers would yield different results.

(3) This case—where 4 Justices believe the statute clearly means X, 4 Justices believe the statutes clearly means Y, and 1 Justice believes that the statute is ambiguous—raises a question about the difference between the “collective” or aggregate meaning of an opinion, on one hand, and the views of the individual Justices on the other. For an even clearer example, suppose that all Justices believe that the statute is ambiguous but incline toward X (say, confidence level 0.55). If they then observe each other’s vote and confidence level, and also believe that each Justice’s view is independently arrived at, then they should update their belief and conclude that the probability that the correct meaning is X is very high (almost certain), in virtue of the Jury Theorem. Should the Justices unanimously vote that the statute is ambiguous or that the statute is clear? We need to work this through.

We have assumed away some types of strategic behavior. A Justice might deliberately overstate her confidence level in order to influence the votes of other Justices. In response, Justices may rationally place less value on such “cheap talk” than otherwise, depending on how honest they think the other Justices are, which is something that they may learn over time through interactions with each other. Of course, strategic behavior by Justices is a more general problem, hardly unique to this setting. Consider the certiorari process, or the possibilities for strategic behavior opened up by the Doctrinal Paradox (the choice between aggregating judicial votes over discrete issues or aggregating votes over bottom-line judgments).

Another complication is that, even if entirely sincere, a Justice may conceal information by allowing herself to be influenced by other Justices. In the famous herd-voting models, if, say, the first three or four Justices happen to vote the same, then subsequent Justices will imitate them, believing that the collective view is more information than their own. A similar problem can arise with simultaneous voting. However, this is not a problem if Justices can and do credibly reveal their confidence level as well as the outcome they believe is correct.

There is much more work to be done, on all these questions. But our tentative judgment is that the potential costs of such a system, while real, do not necessarily and invariably justify throwing away relevant information — the information contained in the votes of other judges.

The Votes of Other Judges, Part 1

The following post was co-written with Adrian Vermeule.

An earlier entry on this blog discusses the puzzle of King v. Burwell: given that six out of the nine judges to vote on the merits have ruled in favor of the agency, isn’t it difficult to say that the agency’s view is clearly unreasonable? The issue generalizes. Under what conditions should judges take into account the information contained in the votes of other judges? We are currently working on a paper on the subject, and lay out some very preliminary and tentative thoughts here.

The issue generalizes well beyond judges, of course. It arises whenever a multimember decisionmaking body, or a hierarchy of such bodies, has to decide whether a legal standard is clearly satisfied. Disagreement among the voters is itself informative about whether the standard is met.  Thus a famous puzzle about juries, stemming from James Fitzjames Stephen, is whether majority rule can coherently be combined with the reasonable-doubt rule. The argument that it cannot goes like this: Imagine that the jury votes 7-5 to convict the defendant. Doesn’t the close vote itself suggest the existence of a reasonable doubt? Related literature in positive political theory involves the “swing voter’s curse” and strategic voting on juries under unanimity rule. But we will confine ourselves to the judicial setting for now.

The relationship between Supreme Court and the lower federal courts is fertile terrain for these issues. If N courts of appeal say that a statute clearly means X, and another N courts of appeal say that a statute clearly means Y, doesn’t that tend to show, all else equal, that the statute is ambiguous? Or in cases about qualified immunity, if some appellate courts say that a certain rule counts as “clearly established law,” and some say it doesn’t, does that mean it doesn’t? What if the second group says not merely that the rule isn’t clearly established, but that the opposite rule is clearly established?

But let us focus on the cleanest setting — voting within a multimember group of Justices at the Supreme Court. And we will use Chevron examples, in light of King v. Burwell.

Here are some cases of interest:

(1) At the conference after oral argument, five Justices say that the ordinary meaning of the statute is clearly X, four say that it is clearly Y. Shouldn’t all nine update their views and learn from the aggregate information contained in the votes of colleagues? Shouldn’t all entertain the possibility that the vote reveals the statute to be ambiguous?

(2) A harder case: At the conference after oral argument, five Justices say that the statute clearly means X, four say that it is ambiguous as between X and Y. Should the five obtain some information from the votes of the four, albeit not as much as in case (1)? After all, the four do not agree that the statute clearly means X. And how about vice-versa — should the four update their own views, in light of the views of the five?

(3) Four justices say that the statute clearly means X, four that it clearly means Y. The swing justice thinks the statute is ambiguous, so the agency wins. Two puzzles:

(A) What exactly is the judgment of “the Court,” for purposes of the Brand X rules? Is it that the statute is ambiguous, so that the agency may flip back and forth between interpretation X and interpretation Y as future administrations come and go?

(B) If so, is that a sensible result? After all, eight Justices viewed the statute as unambiguous (although they disagreed on its putatively unambiguous content).

So far we have assumed that all Justices are using a common interpretive theory (in the examples, we have assumed that the Justices are all trying to determine the ordinary meaning of the text). But puzzles also arise at the meta-level of competing approaches to interpretation. In case (1), suppose that the five Justices are purposivists who think that purposive sources clearly suggest X, and the four are textualist who think that the ordinary meaning clearly indicates Y (or vice-versa). Does that undermine the argument for ambiguity? Or should all nine Justices recognize that reasonable minds can disagree about the proper approach to interpretation, and then say that the agency has second-order discretion to choose among reasonable interpretive approaches? On that logic, the agency wins as well, not because the statute is ambiguous within any particular interpretive approach, but because there is second-order ambiguity in the choice of interpretive approaches.

The puzzles are endless. Clearly some sort of analytic framework is needed, and basic decision theory supplies one. We sketch out such a framework in our next post.

Reply to Brian Beutler and Kevin Drum on Obama’s immigration order

Beutler and Drum doubt that Obama’s immigration order will set a precedent that a future Republican can exploit for the purpose of economic deregulation, as I argued in TNR. Beutler seems to doubt that (political) precedents can constrain political actors. Drum thinks that precedents can matter but doubts that they will matter in this case because the Obama order will set precedent for immigration law only.

I confess I don’t understand politics well enough to be able to predict whether Obama’s order will have a large effect or a small effect but I believe it will have some effect. Think, for example, of the centralization of power over regulatory agencies in the OMB under Reagan. Reagan took political heat for that decision but pushed it through not only because he was ideologically committed to deregulation but because deregulation at the time was popular among Democrats as well as Republicans. His successors, who maintained the structure Reagan put into place, did not take political heat. That is how precedent works. But, of course, its influence can be overcome by other factors.

It is easy to predict that in 2017, the hypothetical President Paul will argue that he can deregulate by non-enforcement because that is what Obama did, and Democrats who defended Obama are in no position to criticize him. Would such an argument work politically? One question is whether people are capable of making fine-grained distinctions between immigration enforcement and, say, environmental-law enforcement. Another question is just how different environmental-law enforcement really is from immigration enforcement. People who sift through environmental law will find great pockets of executive discretion, both in the statutes and as a matter of practice. But the influence of arguments like these, taking place in the arena of politics rather than a court of law, is hard to predict.