Originalism class 9: between phony and naive

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.

Can Crimea secede from Ukraine?

Flag of Crimea.svgThe 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.

Ukraine: Odds and Ends

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.

3. Ashley Deeks publishes a reader’s legal defense of the Russian intervention. This is the most carefully argued defense I have seen; however,  I disagree with it for reasons I give here.

The 1997 Black Sea Fleet Agreement Between Russia and Ukraine

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.

russia ukraine agreement


Taken from J.L. Black, ed., Russia & Eurasia Documents Annual 1997: The Russian Federation, vol. 1, p. 129 (Academic International Press, 1998).

Is there a rule that government actors don’t change the Constitution?

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.

Have the use of force rules reduced the frequency of war?


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.

Putin’s tu quoque defense

Here’s Putin:

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.

Did Ukraine consent to its own invasion?

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.

Ukraine and The Limits of International Law

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.

Julian Ku and Erik Voeten have already provided partial rebuttals. For the record, here are my views:

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.

Ukraine: will “international law matter a lot down the road”?

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.

Will Russia make a legal argument to justify its intervention in Ukraine?

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.

Getting Incentives Right by Cooter and Porat

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.

Originalism class 8: accounting for change

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 bitcoin paradox

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.

Ted Eisenberg

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.

The Empty Call for Benefit-Cost Analysis in Financial Regulation by Jeffrey Gordon

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.

Law professor mentions in the New York Times

law prof mentionsAt 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.

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School