Common law constitutionalism and the limits of reason

Columbia Law Review

Volumn 107, Issue 6, 2007, Pages 1482-1532

  Vermeule, Adrian ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 36549090086     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (189)

1. Edmund Burke, Reflections on the Revolution in France 74 (Frank Turner ed., Yale Univ. Press 2003) (1790).
2. At least not in anything like its current form. See generally Philip A. Hamburger, Revolution and Judicial Review: Chief Justice Holt's Opinion in City of London v. Wood, 94 Colum. L. Rev. 2091, 2137-46 (1994) (describing 1702 opinion that concluded that acts of Parliament were not subject to judicial review but acts of corporate bodies that did not exercise power of sovereignty can be).
3. See Gerry Mackie, Democracy Defended 72-157 (Ian Shapiro ed., 2003). For responses
4. see Don Herzog, Dragonslaying, 72 U. Chi. L. Rev. 757, 769-74 (2005);
5. Saul Levmore, Public Choice Defended, 72 U. Chi. L. Rev. 777, 782 (2005).
6. For example, on the basis of the value of stability and protecting settled expectations. For an overview of the arguments, see Thomas W. Merrill, Does Public Choice Theory Justify Judicial Activism After All?, 21 Harv. J.L. & Pub. Pol'y 219, 225-26 (1997) [hereinafter Merrill, Public Choice].
7. See Thomas W. Merrill, Bork v. Burke, 19 Harv. J.L. & Pub. Pol'y 509, 511-13 (1996) [hereinafter Merrill, Bork v. Burke] (defending "conventionalism" and claiming diat it has Burkean roots);
8. David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 893 (1996) [hereinafter Strauss, Common Law Interpretation] ("[I]deas . . . commonly associated widi Burke . . . are . . . the underpinnings of the common law approach to precedent");
9. Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353 (2006) [hereinafter Sunstein, Burkean Minimalism] (describing Burkean approach to constitutional interpretation);
10. Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619 (1994) (same). Common law constitutionalism is also compatible with Friedrich Hayek's claim that the common law, analogously to markets, embodies dispersed or decentralized information that is superior in the aggregate to the information of any of its participants. 1 Friedrich A. Hayek, Law, Legislation and Liberty: Rules and Order 15-16 (1973). That claim fits naturally with a Condorcetian interpretation: As I will explain shortly, the Jury Theorem relies on dispersed information for its aggregative effects, and describes conditions under which the information held by the voting or statistical group will be superior to that held by any of the group's members. However, although there is little difference between the Burkean and Hayekian strains as regards any of the claims relevant here, in constitutional theory the self-conception of the central theorists is Burkean, not Hayekian. Accordingly, I focus on Burke's dictum rather than its Hayekian relatives.
11. Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 217 (1993) ("The constrained creativity of the experienced lawyer . . . comes only with time and experience, and hence with age, and thus constitutes a species of wisdom that the young and inexperienced cannot possess.").
12. See, e.g., Merrill, Bork v. Burke, supra note 5, at 515 (proposing that choice between originalism and Burkean "conventionalism" should be evaluated by asking which approach is most likely to further a series of "values that conservatives commonly embrace").
13. See infra notes 24-29 and accompanying text.
14. See, e.g., Strauss, Common Law Interpretation, supra note 5, at 892-94 (discussing "the common-sense notion that one reason for following precedent is that it is simply too time consuming and difficult to reexamine everything from the ground up").
15. See id. at 912.
16. Id. at 895.
17. Cf. Cass R. Sunstein, Commentary, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1740-41 (1995) (arguing that participants in legal controversy may agree on results and low-level explanations, but need not agree on fundamental principles).
18. The phrase "many minds" is taken from Cass R. Sunstein, Infotopia: How Many Minds Produce Knowledge (2006).
19. See Merrill, Bork v. Burke, supra note 5, at 519-21 (emphasizing that judicial "conventionalism" comports with "skeptic[ism] about the powers of human reason");
20. Strauss, Common Law Interpretation, supra note 5, at 891-92 (noting that "central traditionalist idea" is caution about rejecting judgments of people "acting reflectively and in good faith, especially when those judgments have been reaffirmed or at least accepted over time" and that "[j]udgments of this kind embody not just serious thought by one group of people, or even one generation, but the accumulated wisdom of many generations") ;
21. Sunstein, Burkean Minimalism, supra note 5, at 369 (articulating Burkean theory of judicial decisionmaking and suggesting that "Burke opposes theories and abstractions, developed by individual minds, to traditions, built up by many minds over long periods");
22. Young, supra note 5, at 644 47 (offering Burkean account of limits of human reason).
23. For the Condorcetian interpretation of Burke, see Sunstein, Burkean Minimalism, supra note 5, at 370-71. Something like the Condorcetian interpretation is plausibly implicit in the other accounts cited in note 5, supra, but those discussions are vague about their epistemic assumptions.
24. See generally James Surowiecki, The Wisdom of Crowds 176 (2004) (noting that "small groups can make very bad decisions, because influence is more direct and immediate and small-group judgments tend to be more volatile and extreme").
25. See Marquis de Condorcet, An Essay on the Application of Mathematics to the Theory of Decision Making (1785)
26. reprinted in Condorcet: Selected Writings 33, 48-49 (K. Baker ed., Bobbs-Merril 1976) [hereinafter Condorcet, Application of Mathematics].
27. See Christian List & Robert E. Goodin, Epistemic Democracy: Generalizing the Condorcet Jury Theorem, 9 J. Pol. Phil. 277 (2001).
28. This is the "polling model" interpretation of the Jury Theorem. See Nicholas R. Miller, Information, Electorates, and Democracy: Some Extensions and Interpretations of the Condorcet Jury Theorem, in Information Pooling and Group Decision Making 173 (Bernard Grofman & Guillermo Owen eds., 1986);
29. Paul H. Edelman, On Legal Interpretations of the Condorcet Jury Theorem, 31 J. Legal Stud. 327, 332-33 (2002).
30. Sunstein, Burkean Minimalism, supra note 5, at 371.
31. See Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057 (1976).
32. For an overview of different versions of the basic thesis that law is indeterminate, at least in some cases, see Lawrence B. Solum, Indeterminacy, in A Companion to Philosophy of Law and Legal Theory 488 (Dennis Patterson ed., 1999).
33. Cf. Jeremy Waldron, The Irrelevance of Moral Objectivity, in Natural Law Theory: Contemporary Essays 158 (Robert George ed., 1992).
34. See David A. Strauss, Tradition, Precedent and Justice Scalia, 12 Cardozo L. Rev. 1699, 1706 (1991) ("Some precedents may be said to be part of a tradition. But not all are. Some are simply the decisions of a group of judges rendered a few years ago.").
35. See A.C. Pritchard & Todd J. Zywicki, Finding the Constitution: An Economic Analysis of Tradition's Role in Constitutional Interpretation, 77 N.C. L. Rev. 409, 489-93 (1999).
36. See, e.g., Strauss, Common Law Interpretation, supra note 5, at 892 ("Because, in this view of traditionalism, the age of a practice alone does not warrant its value, relatively new practices that have slowly evolved over time from earlier practices deserve acceptance more than practices that are older but that have not been subject to testing over time.").
37. David A. Strauss, The Common Law Genius of the Warren Court 5-6 (Univ. of Chi. Pub. Law & Legal Theory Research Paper Series, Paper No. 25, 2002), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=315682 (on file with the Columbia Law Review) [hereinafter Strauss, Common Law Genius] (suggesting that "[i]t is unwise to try to resolve a problem without deferring, to some degree, to the collected wisdom reflected in what others have done when faced with a similar problem in the past").
38. See id. at 17-24.
39. Id. at 31-32.
40. See Jeremy Bentham, Bentham's Handbook of Political Fallacies 54-56 (Harold A. Larrabee ed., 1952) (1824) [hereinafter Bentham, Handbook];
41. Blaise Pascal, Preface to the Treatise on Vacuum, in Thoughts, Letters, and Minor Works 444, 449 (Charles W. Eliot ed., M.L. Booth et al. trans., 1910).
42. This point does not hold for the polling interpretation, which we have put aside (because it is not the interpretation on which common law constitutionalists rely). In that interpretation, voters are each expressing their own preferences. See Edelman, supra note 19, at 332-33 (noting that in polling model, "what is considered right is the same as the outcome of a majority vote among all of the voters"). In the informational interpretation, however, voters are each guessing about a common, exogenously defined right answer.
43. See David M. Estlund et al., Democratic Theory and the Public Interest: Condorcet and Rousseau Revisited, 83 Am. Pol. Sci. Rev. 1317, 1322 (1989) (among requirements of the Jury Theorem is that voters must be "addressing a common question") (Jeremy Waldron).
44. Thanks to Jack Goldsmith for emphasizing this point.
45. See Texas v. Johnson, 491 U.S. 397, 420 (1989) (holding that conviction under state flag burning law violates First Amendment).
46. See Stenberg v. Carhart, 530 U.S. 914, 945-46 (2000) (holding state partial-birth abortion law unconstitutional).
47. Compare Johnson, 491 U.S. at 420, with United States v. Eichman, 496 U.S. 310, 319 (1990) (holding that federal flag burning statute violates First Amendment);
48. Stenberg, 530 U.S. at 945-46, with Gonzales v. Carhart, 127 S. Ct. 1610, 1639 (2007) (upholding federal partial-birth abortion statute).
49. See Oliver Wendell Holmes, Law and the Court (1913), reprinted in Collected Legal Papers 291, 295-96 (1920).
50. Trop v. Dulles, 356 U.S. 86, 101 (1958).
51. Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled by Benton v. Maryland, 395 U.S. 784 (1969).
52. Burke, supra note 1, at 74.
53. See Estlund et al., supra note 32, at 1326 (Jeremy Waldron).
54. See generally David Estlund, Opinion Leaders, Independence, and Condorcet's Jury Theorem, 36 Theory & Decision 131 (1994).
55. See Estlund et al., supra note 32, at 1327 (Jeremy Waldron).
56. For an overview, see Sushil Bikhchandani et al., Learning from the Behavior of Others: Conformity, Fads, and Informational Cascades, J. Econ. Persp., Summer 1998, at 151 [hereinafter Bikhchandani et al., Behavior of Others].
57. For a simple example, see Sushil Bikhchandani et al., Informational Cascades and Rational Herding (June 1996), at http://welch.econ.brown.edu/ cascades (on file with the Columbia Law Review).
58. Eric Talley, Precedential Cascades: An Appraisal, 73 S. Cal. L. Rev. 87, 92 (1999) (concluding that necessary conditions for precedential cascades are "implausible" and that "it is extremely difficult... to verify whether observed judicial conformity is the byproduct of a cascade or of some omitted third factor that commonly affects all judges").
59. Andrew F. Daughety & Jennifer F. Reinganum, Stampede to Judgment: Persuasive Influence and Herding Behavior by Courts, 1 Am. L. & Econ. Rev. 158, 161-65 (1999) (describing precedential cascade involving retroactive reach of Coal Industry Retiree Health Benefit Act of 1992).
60. See generally Cristina Bicchieri & Yoshitaka Fukui, The Great Illusion: Ignorance, Informational Cascades, and the Persistence of Unpopular Norms, 9 Bus. Ethics Q. 127, 147 (1999) (concluding that "it may take surprisingly little new public information to reverse the original cascade").
61. Bikhchandani et al., Behavior of Others, supra note 44, at 157-58.
62. Daughety & Reinganum, supra note 47, at 159.
63. Cass R. Sunstein, Why Societies Need Dissent 66-70 (2003).
64. Cf. Antonio E. Bernardo & Ivo Welch, On the Evolution of Overconfidence and Entrepreneurs, 10 J. Econ. & Mgmt. Strategy 301, 326-27 (2001) (showing conditions under which irrational overconfidence of entrepreneurs in not following actions of others improves quality of aggregated information).
65. In principle, judges might prevent the Burkean paradox from arising by issuing opinions that record their independent judgments while basing their actual decisions on precedent. In this model, later courts will have both the precedent based decision, which is of low or nil informational value, and the earlier court's independent judgment, which has positive value. Although this may sometimes happen, I believe it is rare, for both an economic reason and a psychological one. The economic reason is that judges decide on die basis of precedent in part to conserve on the costs of decisionmaking for themselves. To incur the costs of forming an independent judgment that, by hypothesis, will not affect the current decision is to provide a benefit only to future judges and is thus a contribution to an informational public good; many judges will free ride, and the informational public good will be underproduced. The psychological reason is that it is hard to keep one's precedent-independent judgment from being infected by what many judges and other people in the past have said. Although the claim that the views of people in the past constitute our present identity is mysterious, the claim that those views structure our present thinking is not.
66. Parts of this subsection draw upon a similar discussion in Adrian Vermeule, Should We Have Lay Justices?, 59 Stan. L. Rev. 1569, 1589-90 (2007).
67. See Jeremy Bentham, Introductory View of the Rationale of Evidence, in 6 The Works of Jeremy Bentham 22-24 (John Bowring ed., London, Simkin, Marshall & Co. 1843).
68. Bentham, Handbook, supra note 30, at 34-36.
69. There is a similarity here to Cardozo's idea that "[t]he eccentricities of judges balance one another" so that "out of the attrition of diverse minds there is beaten something which has a[n] . . . average value greater than its component elements." Benjamin N. Cardozo, The Nature of the Judicial Process 177 (1921).
70. See Krishna K. Ladha, The Condorcet Jury Theorem, Free Speech, and Correlated Votes, 36 Am. J. Pol. Sci. 617, 625-30 (1992).
71. See id. at 628-29.
72. Id. at 629. In Ladha's example, a group of three decisionmakers each competent at the .8 level cannot be certain of getting the right answer whatever the voting rule. However, if the group adds two uninformed, worse-than-random guessers, whose competence is a mere .3, then the group is certain to choose the right answer so long as the guesses of the uninformed are negatively correlated with those of the informed.
73. See id.
74. Richard A. Posner, Law, Pragmatism, and Democracy 128 (2003).
75. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 59 (1980).
76. See Susan Swaim Daicoff, Lawyer, Know Thyself 40-42 (2004).
77. Three relevant hypotheses, in roughly descending order of rigor, are that: (1) legal training gives lawyers a strong status quo orientation and a bias to conventional morality, as compared to similarly educated adults, see Lawrence J. Landwehr, Lawyers as Social Progressives or Reactionaries: The Law and Order Cognitive Orientation of Lawyers, 7 Law & Psychol. Rev. 39, 44-48 (1982);
78. 2 legal training reduces law students' general concern for social justice, see Susan Ann Kay, Socializing the Future Elite: The Nonimpact of a Law School, 59 Soc Sci. Q. 347 (1978) (noting this hypothesis, but then conducting study that suggests that law school does not affect students' outlook on social justice), and reduces their interest in public service or public interest lawyering
79. see Robert Granfield & Thomas Koenig, Learning Collective Eminence: Harvard Law School and the Social Production of Elite Lawyers, 33 Soc. Q. 503, 517-18 (1992);
80. 3 legal training causes lawyers to favor cumbersome and complicated processes for generating policy, see, e.g., Jerold S. Auerbach, A Plague of Lawyers, Harper's, Oct. 1976, at 37, 40-42.
81. Cf. Auerbach, supra note 64, at 41-42 (suggesting that legalization of society places priority on individual procedural rights to detriment of substantive norms).
82. I take this "public meaning" originalism to have become the standard version, superseding the older "framers' intentions" version of originalism. The differences between them make no difference to the analysis here.
83. See Gary Lawson, On Reading Recipes . . . and Constitutions, 85 Geo. L.J. 1823, 1833-34 (1997);
84. Saikrishna Prakash, Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors Are Wrong for America, 106 Colum. L. Rev. 2207, 2224 (2006) (book review).
85. Cass Sunstein & Randy Barnett, Constitution in Exile?, Legal Affairs Debate Club, May 3, 2005, at http://legalaffairs.org/webexclusive/ debateclub_cie0505.msp (on file with the Columbia Law Review).
86. Steven G. Calabresi, Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania v. Casey, 22 Const. Comment. 311, 345-46 (2005) ("[T] he Supreme Court ought to follow the constitutional text over precedent").
87. Cf. Strauss, Common Law Genius, supra note 27, at 8 (arguing that under common law approach one can break with past if one can "show that the . . . old regime did not work very well").
88. John C. Harsanyi, Morality and the Theory of Rational Behaviour, in Utilitarianism and Beyond 39, 44-46 (Amartya Sen & Bernard Williams eds., 1982) (explaining equiprobability model of moral judgments).
89. See James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893) (arguing that courts "can only disregard [an] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one,-so clear that it is not open to rational question").
90. See List & Goodin, supra note 18, at 287 tbl.1. If average competence in the group of 301 falls to .51, barely better than random, the majority's chance of choosing correctly is about sixty-four percent. See id. at 287.
91. Condorcet, Application of Mathematics, supra note 17, at 49.
92. When the House leadership held open voting for three hours to allow time to round up members to vote for a controversial prescription drug bill in 2003, an outcry resulted. See John K. Iglehart, The New Medicare Prescription-Drug Benefit - A Pure Power Play, 350 New Eng. J. Med. 826, 828-29 (2004) (describing how "embittered Democrats" denounced vote as "a travesty").
93. The new Democratic Congress elected at the end of 2006 limited this practice by providing that votes may not be held open "for the sole purpose of reversing the outcome." See House Rule XX, cl. 2(a), available at http://www. rules.house.gov/ruleprec/house_rules.htm (on file with the Columbia Law Review).
94. Jeremy Bentham, Political Tactics 106-07 (Michael James et al. eds., 1999).
95. See Keith Krehbiel, Information and Legislative Organization 142-43 (1991) (arguing that division of labor into committees combined with seniority system fosters expertise).
96. See Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy 141 (1994) (noting tradeoff between information and evenhandedness).
97. Cf. Christian List & Philip Pettit, An Epistemic Free-Riding Problem?, in Karl Popper: Critical Appraisals 128, 138-40 (Philip Catton & Graham Macdonald eds., 2004) (suggesting that knowledge of Jury Theorem among group's voters may increase temptation to free ride on information of others).
98. For the tradeoff between group size and free riding on the information of others, see generally Drora Karotkin & Jacob Paroush, Optimum Committee Size: Quality-Versus-Quantity Dilemma, 20 Soc. Choice & Welfare 429 (2003).
99. Quoted in Jon Elster, Explaining Social Behavior 413 (2007).
100. See César Martinelli, Would Rational Voters Acquire Costly Information?, 129 J. Econ. Theory 225, 240-41 (2005).
101. Cf. Timothy J. Feddersen & Wolfgang Pesendorfer, The Swing Voters' Curse, 86 Am. Econ. Rev. 408, 408-24 (1996) (discussing conditions under which uninformed voters will rationally abstain).
102. Martinelli, supra note 82, at 226-27;
103. see also Minoru Kitahara & Yohei Sekiguchi, Condorcet Jury Theorem or Rational Ignorance? 4 (rev. Jan. 31, 2006), available at http://wakame.econ. hit-u.ac.jp/~riron/Workshop/2006/sekiguchi06.pdf (on file with the Columbia Law Review) (showing conditions under which "[e]ven if the amount of information acquired by each voter is small, the amount of aggregated information can be large enough to [reach] the correct decision").
104. Under the conventional view, legislatures may not entrench statutes by making it harder for a future legislature to repeal the statute than it was for the original legislature to enact it. For a critique of this view, see Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L.J. 1665 (2002). For critiques of the critique
105. see John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 Cal. L. Rev. 1773 (2003);
106. see also John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 Yale L.J. 483, 503 (1995).
107. Symmetrically, this implies that on the Condorcetian interpretation of precedent, judges should count overruled cases as information, despite their null legal status.
108. Suppose that at Time 1, nine Justices voted unanimously for Rule R, but then at Time 2, a different nine Justices voted 5-4 to overrule the Time 1 precedent in favor of rule S. Putting aside the problem that the Justices at Times 1 and 2 were not really addressing the same questions (because only the former was a case of first impression), a Justice sitting at Time 3 should aggregate over the whole group of eighteen Justices, counting the "vote" as 13-5 in favor of R.
109. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes: The New American Constitutionalism, in The Least Examined Branch 320 (Richard W. Bauman & Tsvi Kahana eds., 2006).
110. For some speculations, see id.
111. Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2000)).
112. The Act was renewed with support from the Republican House leadership. It passed the House by a vote of 390-33 and the Senate by a vote of 98-0. See Raymond Hernandez, After Challenges, House Approves Renewal of Voting Act, N.Y. Times, July 14, 2006, at A13 (describing House vote and initial opposition to Act);
113. Carl Huse, By a Vote of 98-0, Senate Approves 25-Year Extension of Voting Rights Act, N.Y. Times, July 21, 2006, at Al (describing Senate vote).
114. Strauss, Common Law Genius, supra note 27.
115. Pub. L. No. 93-205, 87 Stat. 884 (codified in scattered sections of 16 U.S.C).
116. Pub. L. No. 91-135, 83 Stat. 275 (repealed 1973).
117. Pub. L. No. 89-669, 80 Stat. 926 (repealed 1973).
118. See Bradford C. Mank, Can Congress Regulate Intrastate Endangered Species Under the Commerce Clause?, 69 Brook. L. Rev. 923, 933-41 (2004). The Endangered Species Act did break with the past in important ways, especially by applying to nonfederal lands, but it was not created out of thin air.
119. Assuming away the internal problems discussed in I.B.
120. Sunstein, Burkean Minimalism, supra note 5, at 356.
121. Jeremy Waldron, Custom Redeemed by Statute, 51 Current Legal Probs. 93, 100 (1998) ("Bentham argued that once they come into the hands of the judges, customs tend to be ill-used and subjected to arbitrary and unpredictable modifications.").
122. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring).
123. For an example of this issue, compare Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam) (invalidating Georgia and Texas death penalty schemes), with Gregg v. Georgia, 428 U.S. 153, 169 (1976) (validating death penalty after state reenactments of new schemes).
124. For the evolutionary interpretation of Burke, see, e.g., Strauss, Common Law Interpretation, supra note 5, at 879 (arguing for a "form of traditionalism, characteristic of the common law method, [that] calls for recognizing the value of conclusions that have been arrived at, over time, by an evolutionary process");
125. Sunstein, Burkean Minimalism, supra note 5, at 368 ("Burkeans might stress not social practices but the slow evolution of judicial doctrine over time .... For these Burkeans, what is particularly important is the judiciary's prior judgments, which should in turn be based on a series of small steps, and should avoid radical departures.");
126. Young, supra note 5, at 653-56 (offering evolutionary interpretation of Burke and connecting "Burke's theory of reform" to "the common-law tradition of evolutionary change").
127. This is a paraphrase of Adam Ferguson's famous observation that "nations stumble upon establishments, which are indeed the result of human action, but not the execution of any human design." Adam Ferguson, An Essay on the History of Civil Society 119 (Fania Oz-Salzberger ed., Cambridge Univ. Press 1995) (1767).
128. See Robert N. Brandon, Concepts and Methods in Evolutionary Biology 47 (1996) (defining natural selection according to these criteria).
129. For supply-side analysis based on competition among institutions providing legal rules, see generally Todd J. Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 Nw. U. L. Rev. 1551, 1620 (2003) [hereinafter Zywicki, Rise and Fall] (arguing that competition among different courts with overlapping jurisdictions during formative era of common law "led to innovation and incentives to provide efficient legal rules"). Zywicki also argues that an increase in the strength of precedent in the nineteenth century exacerbated various problems with the common law, such as rent seeking.
130. See id. at 1565.
131. For a recent summary, see Paul H. Rubin, Why Was the Common Law Efficient? 2-9 (Emory Law & Econ. Research Paper Series, Paper No. 04-06, 2004), available at http:/ /papers.ssrn.com/sol3/papers.cfm?abstract_id=498645 (on file with the Columbia Law Review).
132. Paul H. Rubin, Why is the Common Law Efficient?, 6J. Legal Stud. 51, 53 (1977) [hereinafter, Rubin, Why Efficient];
133. see also George L. Priest, The Common Law Process and the Selection of Efficient Rules, 6 J. Legal Stud. 65 (1977).
134. For a critique drawing on behavioral economics, see Adam J. Hirsch, Evolutionary Theories of Common Law Efficiency: Reasons for (Cognitive) Skepticism, 32 FIa. St. U. L. Rev. 425 (2005);
135. for a different critique, see Gillian K. Hadfield, Bias in the Evolution of Legal Rules, 80 Geo. LJ. 583, 616 (1992) (arguing that claims about efficiency of common law are based on "a weak concept of efficiency"). I will bracket such issues in the discussion here.
136. See William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J. Legal Stud. 235, 273 (1979).
137. The authors of the basic model recognized this point. See Rubin, Why Efficient, supra note 106, at 53-57.
138. See Gordon Tullock, The Case Against the Common Law 15 (1997) (arguing that entire legal system is influenced by interest groups);
139. Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L.J. 31, 34 (1991) (arguing that "[t]he litigation process cannot be treated as exogenous to interest group theory because that process is also subject to forms of interest group influence").
140. See Tullock, supra note 110, at 52;
141. Paul H. Rubin, Common Law and Statute Law, 11 J. Legal Stud. 205, 211-19 (1982) [hereinafter, Rubin, Common Law and Statute Law].
142. See Zywicki, Rise and Fall, supra note 104, at 1620-21.
143. See, e.g., Keith N. Hylton, Information, Litigation, and Common Law Evolution, 8 Am. L. & Econ. Rev. 33, 57 (2006).
144. See Jon Elster, Ulysses and the Sirens 6 (rev. ed. 1984).
145. The best discussion is Elhauge, supra note 110, at 48-66.
146. See generally Ronald Dworkin, Is Wealth a Value?, 9 J. Legal Stud. 191 (1980) (arguing that wealth cannot be understood as a value).
147. See Shaun Hargreaves Heap et al., The Theory of Choice 241-42 (1992).
148. See Louis Kaplow & Steven M. Shavell, Why the Legal System is Less Efficient than the Income Tax in Redistributing Income, 23 J. Legal Stud. 667, 674-76 (1994).
149. See Richard A. Posner, Economic Analysis of Law 99 (1st ed. 1972) ("In searching for a reasonably objective and impartial standard, as the traditions of the bench require him to do, the judge can hardly fail to consider whether the loss was the product of wasteful, uneconomical resource use."). For a critique of the intentional version of the common law efficiency thesis, especially as applied to public law
150. see Frank I. Michelman, Constitutions, Statutes, and the Theory of Efficient Adjudication, 9 J. Legal Stud. 431 (1980).
151. See Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. Econ. 371, 375 (1983).
152. See Rubin, Common Law and Statute Law, supra note 111 (controlling for change over time, common law is not systematically more efficient than statute law);
153. Rubin, Why Efficient, supra note 106, at 61 (discussing parallels between efficient legislation and efficient common law).
154. See generally Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups 141-48 (1965).
155. See Elhauge, supra note 110, at 34;
156. see also Frank B. Cross, The Judiciary and Public Choice, 50 Hastings L.J. 355, 360-68 (1999);
157. Lewis A. Kornhauser, Legal Foundations of Economic Analysis of Law 15-16 (May 31, 2006) (unpublished manuscript, on file with the Columbia Law Review), available at http://www.law.nyu.edu/clppt/program 2006/readings/D_N_W_colloquium_excerpt.pdf.
158. See Pritchard & Zywicki, supra note 25, at 494-501 (discussing rent seeking through Supreme Court litigation and decisionmaking in constitutional cases).
159. See Merrill, Public Choice, supra note 4, at 221-22 (arguing that there is greater "minimum bid limitation" for legislature than judiciary);
160. cf. Todd. J. Zywicki, Gordon Tullock's Critique of the Common Law 46 (George Mason L. & Econ. Research Paper No. 07-13, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=964781 (on file with the Columbia Law Review) (discussing differences in "rent-seeking pressures" on legislature and judiciary).
161. For further discussion, see generally Cross, supra note 123.
162. Cardozo, supra note 57, at 177. The Cardozo Theorem is named, and discussed, in Nicola Gennaioli & Andrei Shleifer, The Evolution of Common Law, 115 J. Pol. Econ. 43, 44, 60-61 (2007) [hereinafter Gennaioli & Shleifer, Evolution of Common Law].
163. A companion paper is Nicola Gennaioli & Andrei Shleifer, Overruling and the Instability of Law, 35 J. Comp. Econ. 309 (2007) [hereinafter Gennaioli & Shleifer, Overruling and the Instability of Law].
164. Although Gennaioli and Shleifer do consider how their model of overruling can be extended to incorporate demand-side effects, they do not do so for their model of distinguishing. See Gennaioli & Shliefer, Overruling and the Instability of Law, supra note 127, at 320-22. In any event, the distinctive and novel feature of their approach is the focus on the supply side-on efficiency as the unintended byproduct of uncoordinated decisionmaking by a series of biased judges over time.
165. See Gennaioli & Shleifer, Evolution of Common Law, supra note 127, at 62.
166. Distinguishing is addressed in Gennaioli & Shleifer, Evolution of Common Law, supra note 127, at 43. Overruling is addressed in Gennaioli & Shliefer, Overruling and the Instability of Law, supra note 127, at 309.
167. Tends toward efficiency, but is unlikely to converge to full efficiency. Gennaioli and Shleifer do not claim that distinguishing produces the full efficiency of judge-made law. Rather, they make the weaker claim that legal evolution is beneficial on average, because "the informational benefit of distinguishing improves the quality of the law." Gennaioli & Shliefer, Evolution of Common Law, supra note 127, at 47.
168. See id. at 54-56.
169. Id. at 62-63.
170. See Gennaioli & Shleifer, Overruling and the Instability of Law,
171. Id. at 323.
172. See Karl N. Llewellyn, The Common Law Tradition 287 (1960) ("'[A] distinction widiout a difference' is a stench ....").
173. Gennaioli & Shleifer, Evolution of Common Law, supra note 127, at 61 n.8.
174. I use "Eleventh Amendment" only as a shorthand, bracketing the question whether the Court is here developing a body of law rooted in the Amendment's text or radier in background structural principles of federalism.
175. For an overview of these "complex and often counterintuitive interpretations" of the Eleventh Amendment, see 1 Laurence H. Tribe, American Constitutional Law 519-66 (3ded. 2000).
176. See Gennaioli & Shleifer, Overruling and the Instability of Law, supra note 127, at 324.
177. 426 U.S. 833, 850-52 (1976).
178. 469 U.S. 528, 557 (1985).
179. See 469 U.S. at 580 (Rehnquist, J., dissenting);
180. U.S. at 589 (O'Connor, J., dissenting).
181. Printz v. United States, 521 U.S. 898, 925 (1997) ("[T]he Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.").
182. See Gennaioli & Shleifer, Evolution of Common Law, supra note 127, at 60-62.
183. See id.
184. Id.
185. Id. at 61-62.
186. See, e.g., Poe v. Ullmann, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (discussing scope of "liberty" guaranteed by Due Process Clause of Constitution).
187. Cf. Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 407 (1985) (arguing that constitutional provisions that are rarely litigated are still important part of constitutional law).
188. See, e.g., Howard Gillman, How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891, 96 Am. Pol. Sci. Rev. 511, 521 (2002) (describing Republican Party's successful efforts to entrench its policy agenda in courts during late nineteenth century).
189. See Keith E. Whittington, "Interpose Your Friendly Hand": Political Supports for the Exercise of Judicial Review by the United States Supreme Court, 99 Am. Pol. Sci. Rev. 583, 591-93 (2005) ("When faced with such issues, elected officials may actively seek to turn over controversial political questions to the courts so as to circumvent a paralyzed legislature and avoid the political fallout that would come with taking direct action themselves.").