Foreword: System effects and the constitution

Harvard Law Review

Volumn 123, Issue 1, 2009, Pages 4-72

  Vermeule, Adrian ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 76449121052     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (287)

1. This definition is adapted, with major modifications, from ROBERT JERVIS, SYSTEM EFFECTS 6 (1997).
2. See MARQUIS DE CONDORCET, Essay on the Application of Mathematics to the Theory of Decision-Making, in CONDORCET SELECTED WRITINGS 33, 52-55 (Keith Michael Baker ed., 1976).
3. See Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 10-12 (1993).
4. As in some other Forewords, the past Term's cases will not be the focus. See, e. g., Henry M. Hart, Jr., The Supreme Court, 1958 Term-Foreword: The Time-Chart of the Justices, 73 HARV. L. REV. 84, 84 (1959) ("This Foreword departs from the pattern of most of its predecessors by addressing itself not to any especially noteworthy decisions or events of the past term but rather to problems of the Court's administration which are common to every term . . . .").
5. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 144 (1893).
6. For formal renditions of these fallacies, with social science applications, see JON ELSTER, LOGIC AND SOCIETY 97-106 (1978). Philosophers of logic have identified several subcases, in which the fallacies can rest on either semantic, conceptual, or causal mistakes.
7. See, e.g., id. at 98-103;
8. William L. Rowe, The Fallacy of Composition, 71 MIND 87, 89-91 (1962). For the most part, my examples fall into the latter two categories; in any event, the philosophical refinements are not material for my purposes.
9. Alternatively, although I will not pursue the issue, the primitives of the system might themselves be propositions of fact, morality, or law. In the best case, a system effect arises when a set of legal provisions has properties that differ from the properties of some or all of its individual members. It has been argued, for example, that the possibility of constitutional amendment is systematically irrelevant. The failure of the Equal Rights Amendment (ERA) made no difference, on this view, because the Supreme Court read the ERA's content into the Equal Protection Clause of the Fourteenth Amendment; the latter subsumed the former. See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457 (2001). However, putting aside the possibility that would-be amendments are subsumed by provisions of the original Constitution, it is a fallacy of composition to argue that because any given amendment might in this fashion be shown to be irrelevant, all amendments can be shown to be irrelevant simultaneously. At least one amendment must be in place and be efficacious in order to subsume the others; in the example above, the Fourteenth Amendment plays that role.
10. For a more extended treatment, see Adrian Vermeule, Constitutional Amendments and the Constitutional Common Law, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 229, 231-242 (Richard W. Bauman & Tsvi Kahana eds., 2006).
11. ADAM FERGUSON, AN ESSAY ON THE HISTORY OF CIVIL SOCIETY 119 (Fania Oz-Salzberger ed., Cambridge Univ. Press 1995) (1767).
12. See BERNARD MANDEVILLE, THE FABLE OF THE BEES AND OTHER WRITINGS (E.J. Hundert ed., Hackett Publ'g Co. 1997) (1723).
13. ADAM SMITH, THE WEALTH OF NATIONS: BOOKS IV-V 32 (Andrew Skinner ed., Penguin Books 1999) (1776).
14. See generally MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1971).
15. Russell Hardin, The Free Rider Problem, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (2003), http://plato.stanford.edu/archives/fall2009/entries/free- rider.
16. See CONDORCET, supra note 2, at 52-56.
17. See Saul Levmore, Public Choice Defended, 72 U. CHI. L. REV. 777, 784 (2005)
18. (reviewing GERRY MACKIE, DEMOCRACY DEFENDED (2003)).
19. See KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 24-31, 51-59 (Ist ed. 1951).
20. See Philip E. Converse, Popular Representation and the Distribution of Information, in INFORMATION AND DEMOCRATIC PROCESSES 369, 381-382 (John A. Ferejohn & James H. Kuklinski eds., 1990).
21. See I WILLIAM FELLER, AN INTRODUCTION TO PROBABILITY THEORY AND ITS APPLICATIONS 245 (3d ed., rev. prtg. 1968).
22. See CONDORCET, supra note 2, at 48-49.
23. In fact, so long as the distribution of competence is symmetric around the mean in a group with three voters, the Theorem can hold so long as the average chance of getting the right answer is greater than 0.471. See Bernard Grofman et al., Thirteen Theorems in Search of the Truth, 15 THEORY & DECISION 261, 271 (1983).
24. See CONDORCET, supra note 2, at 49.
25. See SCOTT E. PAGE, THE DIFFERENCE: HOW THE POWER OF DIVERSITY CREATES BETTER GROUPS, FIRMS, SCHOOLS AND SOCIETIES 208-09 (2007);
26. Krishna K. Ladha, The Condorcet Jury Theorem, Free Speech, and Correlated Votes, 36 AM. J. POL. SCI. 617, 625-30 (1992).
27. See Ladha, supra note 21, at 625-630
28. For a survey of the literature, see generally Thomas J. Miles & Cass R. Sunstein, The New Legal Realism, 75 U. CHI. L. REV. 831 (2008).
29. Christian List, Collective Wisdom: Lessons from the Theory of Judgment Aggregation, in COLLECTIVE WISDOM (Hélène Landemore & Jon Elster eds., forthcoming) (manuscript at 6 tbl.2), available at http://personal.lse.ac.uk/LIST/pdf-files/CollectiveWisdom19Oct.pdf.
30. See Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82, 102-105 (1986).
31. See Christian List & Philip Pettit, Aggregating Sets of Judgments: An Impossibility Result, 18 ECON. & PHIL. 89, 96-100 (2002) (considering procedures that meet the following criteria: universal domain, anonymity and systematicity).
32. See Dimitri Landa & Jeffrey R. Lax, Legal Doctrine on Collégial Courts, 71 J. POL. 946, 957-958 (2009).
33. Id.
34. See Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 815-817 (1982).
35. See id. at 817-821
36. ("Majority voting plus stare decisis is thus a formula under which the Court may produce any outcome favored by any number of Justices, however small, even though a majority of Justices would reject that rule ... on the basis of first principles." Id. at 819.).
37. 3:1 See, e.g., WILLIAM. H. RlKER, LIBERALISM AGAINST POPULISM (1982).
38. See DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE 55 (1991) (stating that the libertarian thesis "tells us to be equally suspicious of all sources of law").
39. See MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 54 (2000).
40. See id. at 53.
41. Stearns's definition of the fallacy -as "the assumption that if phenomenon X produces result Y, more of phenomenon X will necessarily produce more of result Y," id. -is nonstandard and would be more apt as a definition of an increasing function. However, the substance of Stearns's point holds straightforwardly, given the definition used here.
42. Saul Levmore, Bicameralism: When Are Two Decisions Better than One?, 12 INT'L REV. L. & ECON. 145, 147 (1992).
43. See generally R. G. Lipsey & R. K. Lancaster, The General Theory of Second Best, 24 REV. ECON. STUD, 11 (1956).
44. Id. at 11-12.
45. Id.
46. For a similar example, see Thomas S. Ulen, Courts, Legislatures, and the General Theory of Second Best in Law and Economics, 73 CHI-KENT L. REV. 189, 204-207 (1998).
47. The general theory of second best also shows that it is not necessarily best for the relevant variables to approach their optimal values as closely as possible, assuming that at least one such variable does not reach the optimum. This mistake has been called the "approximation assump-tion." Avishai Margalit, Ideals and Second Bests, in PHILOSOPHY FOR EDUCATION 77, 77 (Seymour Fox ed., 1983).
48. For illuminating discussions of the second best in legal theory, see Lawrence B. Solum, Constitutional Possibilities, 83 IND. L. J. 307, 311-12, 327-328 (2008);
49. and Ulen, supra note 39, at 208-219
50. For illuminating discussions of the second best in political theory, see JON ELSTER, EXPLAINING SOCIAL BEHAVIOR 439-442 (2007);
51. Bruce Talbot Coram, Second Best Theories and the Implications for Institutional Design, in THE THEORY OF INSTITUTIONAL DESIGN 90, 90-95 (Robert E. Goodin ed., 1996);
52. and Robert E. Goodin, Political Ideals and Political Practice, 25 BRIT. J. POL. SCI. 37, 52-55 (1995).
53. POLYBIUS, THE RISE OF THE ROMAN EMPIRE 312-318 (Ian Scott-Kilvert trans., Penguin Books 1979).
54. ELSTER, supra note 41, at 440.
55. A. P. THORNTON, IMPERIALISM IN THE TWENTIETH CENTURY 156 (1977);
56. ADAM B. ULAM, THE BOLSHEVIKS: THE INTELLECTUAL AND POLITICAL HISTORY OF THE TRIUMPH OF COMMUNISM IN RUSSIA 124-125, 137 (Harvard Univ. Press 1998) (1965);
57. see also ELSTER, supra note 41, at 440 (describing the rule of the Ottomans, the tsars in Russia, Mussolini in Italy, and Franco in Spain as "despotism tempered by incompetence" (internal quotation marks omitted)).
58. See DAVID HUME, Of the Independency of Parliament, in ESSAYS: MORAL, POLITICAL, AND LITERARY 42, 44-45 (Eugene F. Miller ed., Liberty Fund 1985) (1777).
59. DAVID HUME, That Politics May Be Reduced to a Science, in ESSAYS: MORAL, POLITICAL, AND LITERARY, supra note 45, at 14, 18. The substance of Hume's reasoning is flawed, because in a hereditary monarchy the prospect of a crown may induce attempts to overthrow the reigning family through intrigue or violence.
60. "Their Laws and Clothes were equally Objects of Mutability; For, what was well done for a time, In half a Year became a Crime; Yet while they alter'd thus their Laws, Still finding and correcting Flaws, They mended by Inconstancy Faults, which no Prudence could foresee." MANDEVILLE, supra note 9, at 28.
61. I JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 284, 293 (London, MacMillan & Co. 1883).
62. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1252-53 (1994)
63. (citing Peter B. McCutchen, Mistakes, Precedent and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 CORNELL L. REV. 1, 30-39 (1994)).
64. See Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L. J. 1725, 1828-1839 (1996);
65. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 155 (1994).
66. See Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 78-81 (1995);
67. Robert Justin Lipkin, The New Majoritarianism, 69 U. CIN. L. REV. 107, 121-122 (2000).
68. See Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 656-57 (2000). There are significant scholarly controversies about whether presidentialism makes democracy unstable and whether proportional representation or fragmentation of parties also plays a role.
69. See, e.g., JOSE ANTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARIANISM, AND DEMOCRACY (2007). For present purposes, the substance of these controversies is irrelevant; what matters is the structure of the second-best argument described above.
70. This is Duverger's Law. See MAURICE DUVERGER, POLITICAL PARTIES: THEIR ORGANIZATION AND ACTIVITY IN THE MODERN STATE 217 (Barbara North & Robert North trans., John Wiley & Sons 3d Eng. ed., rev. 1963) (1951).
71. JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 46 (1938).
72. See Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 2-3 (1994).
73. Id. at 81-87, 97-101.
74. ELSTER, supra note 41, at 439.
75. ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 87 (1975).
76. For an illuminating critique, see Note, Media Incentives and National Security Secrets, 122 HARV. L. REV. 2228 (2009).
77. This seems to be Bickel's implicit argument. See BICKEL, supra note 58, at 81-87.
78. See JAMES FITZJAMES STEPHEN, A GENERAL VIEW OF THE CRIMINAL LAW OF ENGLAND 166 (London, MacMillan & Co. 1863) (arguing that although "the inquisitorial theory of criminal procedure is beyond all question the true one," nonetheless "it may be and probably is, the case, that in our own time and country, the best manner of conducting such an inquiry is to consider the trial mainly as a litigation and to allow each party to say all that can be said in support of their own view").
79. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 864 (1989).
80. Id.
81. See Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1171-73, 1189-1192 (1993).
82. Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 193.
83. At least if we bracket the possibility that the analyst is engaged in what David Estlund calls "hopeless aspirational theory." Such analysts, Estlund argues, can ignore problems of the second best. See David Estlund, Utopophobia (Feb. 9, 2009) (unpublished manuscript, on file with the Harvard Law School Library). I will put aside the possibility of hopeless theorizing in what follows.
84. THE FEDERALIST NO. 51, at 318-319 (James Madison) (Clinton Rossiter ed., 1999).
85. For analyses of Adam Smith's influence on Madison, see Samuel Fleischacker, Adam Smith's Reception Among the American Founders, 1776-1790, 59 WM. & MARY Q. 897 (2002);
86. and David Prindle, The Invisible Hand of James Madison, 15 CONST. POL. ECON. 223 (2004).
87. Edna Ullmann-Margalit, The Invisible Hand and the Cunning of Reason, 64 SOC. RES. 181, 182 (1997).
88. Prindle, supra note 67, at 231-234
89. THE FEDERALIST NO.51 (James Madison), supra note 66, at 319.
90. However, it is not necessary that all institutions act to promote their institutional ambitions. If (say) the President and the Congress are relentlessly self-promoting as institutions, while the Court decides on the merits of particular cases, then the ambitions of the first two institutions may cancel each other out, allowing the public interest to emerge. The general theory of second best does not entail that lack of universal public-spiritedness must necessarily yield bad results, only that it can do so. (This example is structurally analogous to the miracle of aggregation, discussed supra section I.A.4(a), pp. 12-13)
91. Structurally similar puzzles arise in many other legal contexts in which invisible-hand reasoning is invoked. To mention only one example, an adversarial system of litigation is often justified on the ground that biased presentation by competing parties is the best mechanism for producing truth overall. See STEPHEN, supra note 60, at 166. In criminal litigation, however, it is also a legal shibboleth that the prosecutor's obligation is to "seek[| truth and not victims."
92. Robert H. Jackson, The Federal Prosecutor, Address at the Second Annual Conference of United States Attorneys (Apr. 1, 1940), in NAT'L COLL. OF DIST. ATT'YS, ETHICAL CONSIDERATIONS IN PROSECUTION 2, 4 (John Jay Douglass ed., 1977). Yet if the prosecutor seeks truth while the defendant pursues adversarial advantage, the defendant's interests may in effect be doublecounted. This asymmetric role morality can be justified, if at all, only on extrinsic grounds.
93. For a discussion of such problems, see Adrian Vermeule, The Invisible Hand in Legal Theory (2009) (unpublished manuscript, on file with the Harvard Law School Library).
94. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 923-937 (2005).
95. THE FEDERALIST NO.51 (James Madison), supra note 66, at 319.
96. See Levinson, supra note 73, at 920.
97. For some conjectures on how such alignment occurred in Eastern Europe, see Jon Elster, The Role of Institutional Interest in East European Constitution-Making, 5 E. EUR. CONST. REV. 63 (1996).
98. See SMITH, supra note 10, at 32.
99. See Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. PA. L. REV. 991, 1032-1033 (2008).
100. E.g., John O. McGinnis, Constitutional Review by the Executive in Foreign Affairs and War Powers: A Consequence of Rational Choice in the Separation of Powers, LAW & CONTEMP. PROBS., Autumn 1993, at 293, 303;
101. John O. McGinnis, The Spontaneous Order of War Powers, 47 CASE W. RES. L. REV. 1317, 1326 (1997).
102. See supra pp. 18-19.
103. For an analysis of divide-and-conquer tactics, see Eric A. Posner, Kathryn E. Spier & Adrian Vermeule, Divide and Conquer (Univ. of Chi., John M. Olin Law & Econ. Working Paper No. 467, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1414319. A version of the following discussion is included in that paper.
104. HUME, supra note 45, at 44.
105. Id. at 45.
106. This interpretation applies Eric Rasmusen & J. Mark Ramseyer, Cheap Bribes and the Corruption Ban: A Coordination Game Among Rational Legislators, 78 PUB. CHOICE 305, 309-313 (1994).
107. Id. at 313.
108. For similar models of divide-and-conquer tactics in other settings, see Ilya Segal, Contracting with Externalities, 114 Q.J. ECON. 337, 343 (1999);
109. Ilya Segal, Coordination and Discrimination in Contracting with Externalities: Divide and Conquer?, 113 J. ECON. THEORY 147, 153-155 (2003);
110. and Yeon-Koo Che & Kathryn E. Spier, Exploiting Plaintiffs Through Settlement: Divide and Conquer (John M. Olin Ctr. for Law, Econ., & Bus., Harvard Law Sch., Discussion Paper No. 591, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1009360.
111. This feature of discriminatory vote-buying offers tracks the logic of divide-and-conquer models in other areas, in which discriminatory offers allow the single party on one side of the transaction to exclude equilibria in which the multiple parties on the other side of the transaction coordinate for mutual gain.
112. This interpretation applies the ingenious model in Ernesto Dal Bó, Bribing Voters, 51 AM. J. POL. SCI. 789, 791-795 (2007).
113. See id. at 793.
114. More specifically, a sum equal to the individual costs to the pivotal voter if the Crown's proposal is enacted plus a token amount, in order to make the pivotal voter prefer that it be enacted.
115. See id. at 794.
116. See id. at 793-794
117. See id. at 792.
118. See id.
119. DAVID HUME, Whether the British Government Inclines More to Absolute Monarchy, or to a Republic, in ESSAYS: MORAL, POLITICAL, AND LITERARY, supra note 45, at 47, 48.
120. See, e.g., JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE 152 (1997).
121. See Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLAL. REV. 1217, 1221, 1231-1242 (2006).
122. See id. at 1235-1242
123. See Torsten Persson, Gérard Roland & Guido Tabellini, Separation of Powers and Political Accountability, 112 Q.J. ECON. 1163, 1179-1183 (1997).
124. See id. at 1182-1183
125. Levmore, supra note 35, at 147-148
126. See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT (1962),
127. reprinted in 3 THE COLLECTED WORKS OF JAMES M. BUCHANAN 220 (1999).
128. See id. at 233-34, 239-240
129. Cf. Loving v. United States, 517 U.S. 748, 757-758 (1996) (describing bicameralism as a feature of Congress that makes for "responsive" lawmaking).
130. See BUCHANAN & TULLOCK, supra note 100, at 233-234
131. Parts of this section are adapted, with modifications, from Adrian Vermeule, Second-Best Democracy, I HARV. L. & POL'Y REV. ONLINE (2006), http://www.hlpronline.com/2006/11/vermeule-01.html.
132. See generally ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2002).
133. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 172-173 (2006).
134. Id. at 50-51.
135. Id. at 87-88.
136. Id. at 125, 136-137
137. See id. at 8-9, 27-29, 49.
138. I use "emergent" strictly in the philosophical sense of an emergent property. I do not mean to connote the very different idea that legal and political institutions evolve toward democracy.
139. LEVINSON, supra note 106, at 49.
140. See id. at 50-52.
141. See id. at 88-89.
142. See Andrew Gelman et al., The Mathematics and Statistics of Voting Power, 17 STAT. SCI. 420, 426-428 (2002).
143. Unless the relevant interests are defined in excessively general terms, such as "the powerful" or "the wealthy."
144. Persson, Roland & Tabellini, supra note 97, at 1179-1183
145. See, e.g., LEVINSON, supra note 106, at 52.
146. See, e.g., id. at 109-16;
147. id. at 167 (listing "[e]xcessive presidential power" as a "grievous defect[]" of the Constitution).
148. See, e.g., id. at 89-91.
149. See, e.g., DAHL, supra note 105, at 68-72.
150. Cf. LANDIS, supra note 54.
151. See id. at 1 ("[T]he administrative process springs from the inadequacy of a simple tripartite form of government to deal with modern problems.").
152. See, e.g., Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 617-630 (2002).
153. See Nathaniel Persily, Reply: In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders, 116 HARV. L. REV. 649, 668 (2002).
154. Id.
155. Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099, 1117-1118 (2005).
156. See NANCY L. ROSENBLUM, ON THE SIDE OF THE ANGELS: AN APPRECIATION OF PARTIES AND PARTISANSHIP 456-457 (2008).
157. See Vicki C. Jackson, Narratives of Federalism: Of Continuities and Comparative Constitutional Experience, 51 DUKE LJ. 223, 226, 272-279 (2001);
158. see also MIKHAIL FILIPPOV, PETER C. ORDESHOOK & OLGA SHVETSOVA, DESIGNING FEDERALISM. 300-301 (2004) (emphasizing that, because institutions are interdependent, the constitutional designer cannot evaluate them piecemeal). Thanks to Mark Tushnet for these references.
159. See ADRIAN VERMEULE, LAW AND THE LIMITS OF REASON 170-171 (2009);
160. Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic Constitution, 55 DRAKE L. REV. 925, 927 n.14 (2007).
161. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16 (2d ed. 1986).
162. See generally JEREMY WALDRON, LAW AND DISAGREEMENT (1999);
163. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006).
164. For an important line of critique, see Frank B. Cross, Institutions and Enforcement of the Bill of Rights, 85 CORNELL L. REV. 1529, 1550-1576 (2000);
165. and Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693 (2008).
166. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 230-88 (2006).
167. See generally VERMEULE, supra note 130.
168. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 73-104 (1980).
169. See Cross, supra note 132, at 1550-76;
170. Fallon, supra note 132, at 1718-1728
171. I believe that robust judicial review cannot, in fact, be justified in such terms, see VERMEULE, supra note 133, but that is a separate question.
172. See Frederick Schauer, The Supreme Court, 2005 Term-Foreword: The Court's Agenda And the Nation's, 120 HARV. L. REV. 4 (2006).
173. Schauer also briefly discusses the Court's statutory agenda, but the main implications he elicits are addressed to constitutional theory, see id., so I shall focus on his discussion of the Court's constitutional agenda.
174. Id. at 50.
175. Id. at 53.
176. I take this phrase from Mark Tushnet, who uses it in a somewhat different sense, although a related one. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM. THE COURTS 57 (1999).
177. Schauer, supra note 137, at 53. Schauer limits his argument by saying that the Court should intervene primarily on "low-salience" questions.
178. See id. at 36-62. This limitation partially but not wholly avoids the problem noted in the text, because it will be uncertain ex ante when the limitation applies.
179. -128 S. Ct. 2229 (2008).
180. I will ignore "personal" bias, which arises when rulings are based on bribery or family connections.
181. Miles & Sunstein, supra note 23, at 831.
182. ((8 x .5) + 1)/9 ≈ .56.
183. 8) = (70 + 56 + 28 + 8 + 1)/256 ≈ .64. Thanks to Joanna Huey and John Polley for this calculation.
184. People are sometimes confused by the idea that someone can vote worse than randomly; doesn't that mean the swing Justice could improve her competence by flipping a coin? But this confuses the standpoint of the analyst with the standpoint of the actor. The swing Justice might not perceive the cognitive limitations that reduce her competence below that of a coin flip.
185. This assumes that all the Justices vote sincerely, not strategically, although one votes based on political attitudes while the others vote based on their best understanding of the relevant law.
186. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 834 (2006). This study does not include Chief Justice Roberts or Justices Alito and Sotomayor.
187. See Charlie Savage, Appeals Courts Pushed to Right by Bush Choices, N.Y. TIMES, Oct. 29, 2008, at A1.
188. See Eric A. Posner, Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform, 75 U. CHI. L. REV. 853, 858-868 (2008).
189. See generally James R. Rogers & Georg Vanberg, Resurrecting Lochner: A Defense of Unprincipled Judicial Activism, 23 J.L. ECON. & ORG. 442 (2007).
190. Cf. Posner, supra note 152, at 855 ("[J]udicial bias (within limits) does not matter at all and could even be beneficial in a system . . . where judges are expected to block or restrict government actions . . . that are themselves likely to reflect 'bias.'" (emphasis omitted)).
191. See id. at 879.
192. Cf. id. at 880 ("If legislative bias yields inefficient and unfair statutes because the legislative process is insufficiently supermajoritarian and if legislative bargaining costs are low, then review of statutes by biased judges may be socially desirable . . . .").
193. See, e.g., Miles & Sunstein, supra note 150, at 851-59;
194. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1719 (1997).
195. For a recent overview of the literature on panel effects, see Pauline T. Kim, Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, 157 U. PA. L. REV. 1319, 1320-1327 (2009).
196. See generally RONALD DWORKIN, LAW'S EMPIRE (1986).
197. See Ronald Dworkin, In Praise of Theory, 29 ARIZ. ST. L.J. 353, 364 (1997).
198. See Amartya Sen, Rights and Agency, 11 PHIL. & PUB. AFF. 3, 3 (1982).
199. "All" is not necessarily to be taken literally; I use it as shorthand for whatever critical mass of judges is necessary to produce the beneficial consequences promised by the relevant theory.
200. Diachronie system effects can obtain so long as it is costly to reverse the action of past judges. Here too, I use "irreversible" merely as a shorthand.
201. This section and the next are adapted, with heavy modifications, from Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. CON-TEMP. LEGAL ISSUES 549 (2005).
202. See, e.g., United States v. Taylor, 487 U.S. 326, 346 (1988) (Scalia, J., concurring in part) ("[W]e have an obligation to conduct our exegesis in a fashion which fosters th[e] democratic process [specified in the bicameralism and presentment requirements of Article I].");
203. Elizabeth Garrett, Legal Scholarship in the Age of Legislation, 34 TULSA L.J. 679, 685 (1999) ("[MJethods like textualism and rules of clear statement are best understood as efforts to improve the quality of the decisionmaking in the politically accountable branches.");
204. cf. W. David Slawson, Legislative History and the Need To Bring Statutory Interpretation Under the Rule of Law, 44 STAN. L. REV. 383, 407-410 (1992) (arguing that judicial recourse to legislative history results in irresponsible and incoherent congressional lawmaking).
205. See Vermeule, supra note 162, at 564-565
206. For discussion of this issue, see id. at 569-71;
207. and EINER ELHAUGE, STATUTORY DEFAULT RULES 332-334 (2008).
208. See ELHAUGE, supra note 165, at 333.
209. See David A. Strauss, Common Law, Common Ground and Jefferson's Principle, 112 YALE L.J. 1717, 1730-1731 (2003).
210. See Erin O'Hara, Social Constraint or Implicit Collusion?: Toward a Game Theoretic Analysis of Stare Decisis, 24 SETON HALL L. REV. 736, 748-753 (1993).
211. See Posner, Spier & Vermeule, supra note 81, at 10-11.
212. This distinction is slightly inaccurate. Although a one-shot Prisoners' Dilemma has no coordination element -each player has a dominant strategy -a repeated version of the game makes coordination important. See O'Hara, supra note 168, at 751-53. The difference is that games such as Assurance have coordination built into their very structure.
213. See Richard H. McAdams, Beyond the Prisoners' Dilemma: Coordination, Game Theory, and Law, 82 S. CAL. L. REV. 209, 220-222 (2009).
214. See McAdams, supra note 170, at 222-23;
215. Strauss, supra note 167, at 1733-1735 For hybrid games in which the Battle of the Sexes is embedded within an iterated Prisoners' Dilemma,
216. see McAdams, supra note 170, at 226-230 Such refinements, while important, are not necessary for the points I attempt to make here.
217. See JAMES D. MORROW, GAME THEORY FOR POLITICAL SCIENTISTS 95 (1994).
218. Within this broad rubric, there are different ways of specifying Thayerism. Some Thayerian judges may hold that a reasonable reading of constitutional text is required; some may hold that a reasonable account of original understandings, or of precedent, is required. Some especially capacious Thayerians may hold that the legislation should be upheld so long as it can reasonably be justified in terms of any of the standard sources of constitutional law. These distinctions, however, are not material to the second-best problems facing Thayerians, which are the same however the approach is specified.
219. In previous work, I failed to take adequate account of this problem for Thayerians. See, for example, the brief and unsatisfactory remarks in VERMEULE, supra note 133, at 263-264
220. For suggestions that the Court should eliminate judicial review only prospectively and that unilateral disarmament is a bad idea, see TUSHNET, supra note 141, at 175.
221. TUSHNET, supra note 141, at 57-65.
222. For more on the problem of local maxima, see generally ELSTER, supra note 41, at 111 248-249
223. Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733 (1995).
224. CASS R. SUNSTEIN, RADICALS IN ROBES 27-30 (2005).
225. The issue is slightly complicated by the distinction between interpretation and adjudication. Some originalists believe that this distinction is coherent and that originalism is the only valid form of interpretation, whereas originalism as a method of adjudication must be justified by reference to its consequences. See, e.g., Gary Lawson, Response, On Reading Recipes . . . and Constitutions, 85 GEO. L.J. 1823, 1823-24 (1997). Other originalists do not seem to draw such a distinction, saying generally that originalism has pragmatic benefits.
226. See, e.g., John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 31 HARV. J.L. & PUB. POL'Y 917 (2008). I will confine my remarks to originalist adjudication and so will ignore the issue here.
227. Posting of Randy Barnett to Legal Affairs Debate Club, http://legalaffairs.org/webexclusive/debateclub-cie0505.msp (May 3, 2005, 13:43),
228. quoted in Cass R. Sunstein, Of Snakes and Butterflies: A Reply, 106 COLUM. L. REV. 2234, 2236 & n.8 (2006).
229. See Jonathan R. Macey, Originalism as an "Ism," 19 HARV. J.L. & PUB. POL'Y 301, 303-304 (1996).
230. See John O. McGinnis & Michael B. Rappaport, The Desirable Constitution and the Case for Originalism 7-18 (Nw. Univ. Sch. of Law Pub. Law & Legal Theory Working Paper Series, Research Paper No. 08-05, 2009), available at http://papers.ssrn.com/sol3/papers.cfmPabstract-id=1109247.
231. See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
232. McGinnis & Rappaport, supra note 179, at 924-928
233. Id.
234. See generally ROBERT H. BORK, THE TEMPTING OF AMERICA (1990).
235. Larry Kramer, Two (More) Problems with Originalism, 31 HARV. J.L. & PUB. POL'Y 907, 915 (2008);
236. see also Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1182-1188 (1993).
237. Lessig, supra note 187, at 1189-1192
238. Scalia, supra note 61, at 864.
239. This point is overlooked by John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 Nw. U. L. REV. 803 (2009).
240. See Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 CONST. COMMENT. 257, 263-269 (2005). I have compressed two of Barnett's categories -"construction" and " liquidation" -into one, because they largely overlap.
241. See id. at 269-270 (arguing that this version of originalism leaves much room for the doctrine of precedent).
242. -272 U.S. 52 (1926).
243. See id. at 176.
244. -295 U.S. 602 (1935).
245. Id. at 626 (limiting Myers to very narrow factual circumstances despite the Myers Court's extensive historical and legislative analysis).
246. According to a recent review of the evidence, "it is a mistake to characterize the |J|ustices on the Court as strategic actors, who take advantage of their strategic positions to achieve their legal or policy goals. Strategic behavior occurs on the Court, but it takes place much less often than the strategic scholars claim." SAUL BRENNER & JOSEPH M. WHITMEYER, STRATEGY ON THE UNITED STATES SUPREME COURT 165 (2009).
247. For a clear recognition that these two axes are distinct, see LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES 6-8 (2006). "[I]n most strategic models that are applied to federal courts, judges act solely on the goal of achieving good policy,"
248. id. at 6, but as Baum points out, there is no logical connection between assuming that judges are strategic and assuming that they are attitudinal, in the sense of policy-oriented, rather than legalist,
249. see id. at 7-8. Another standard formulation in the literature is that judges are "single-minded seekers of legal policy."
250. Tracey E. George & Lee Epstein, On the Nature of Supreme Court Decision Making, 86 AM. POL. SCI. REV. 323, 325 (1992) (emphasis added). However, this formulation is intrinsically ambiguous.
251. See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86-97 (2002).
252. See generally LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 9-18 (1998).
253. There is only a small body of work that models judges as strategic maximizers of their legal views. See, e.g., John A. Ferejohn & Barry R. Weingast, A Positive Theory of Statutory Interpretation, 12 INT'L REV. L. & ECON. 263, 268 (1992) (using the phrase "politically sophisticated honest agent" to describe strategic legalism as one of three models of judicial interpretation). For a hybrid argument that strategic judges advance their views of both good law and good policy,
254. see Pablo T. Spiller & Emerson H. Tiller, Invitations to Override: Congressional Reversals of Supreme Court Decisions, 16 INT'L REV. L. &. ECON. 503, 504 (1996). Both articles, however, focus on the interaction between the Court and Congress, whereas I am focusing on the interactions among judges.
255. Thanks to Daryl Levinson for suggesting this term.
256. See, e.g., Gonzales v. Raich, 545 U.S. 1, 58 (2005) (Thomas, J., dissenting) (rejecting the Court's understanding of the Commerce Clause in favor of an understanding based on the "text, structure, and history" of the clause);
257. Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 487 (2001) (Thomas, J., concurring) (questioning the Court's reliance on the intelligible principle doctrine in delegation jurisprudence).
258. See McAdams, supra note 170, at 212-213
259. Jon Elster quotes a dictum of Montaigne's: "In the state of indecision and perplexity brought upon us by our inability to see what is most advantageous and to choose it... , since we doubt which is the shorter road, we should keep going straight ahead."
260. Jon Elster, Mimicking Impartiality, in JUSTICE AND DEMOCRACY 112, 113 (Keith Dowding, Robert E. Goodin & Carole Pateman eds., 2004)
261. (quoting MICHEL DE MONTAIGNE, THE COMPLETE ESSAYS 144 (M.A. Screech trans., Penguin Books 1991) (1580)).
262. I mean this in a different sense than the form of second-best originalism attributed to Justice Scalia in section I.C.2, p. 22. Justice Scalia's view of originalism as "the librarian who talks too softly" works, if it works at all, only if followed by all judges ab initio, whereas the version of second-best originalism considered in the text attempts to address the problems created by nonoriginalist decisions in the past.
263. For a somewhat similar argument that common law adjudication should ignore problems of the second best, see Ulen, supra note 39, at 217. However, because it is addressed to a different institutional setting, I believe that Ulen's argument is much stronger than the constitutional version of the argument I mention in the text.
264. For discussion of that question, and an earlier analysis of the issues in this paragraph, see Adrian Vermeule, Hume's Second-Best Constitutionalism, 70 U. CHI. L. REV. 421, 435-437 (2003).
265. I will confine the discussion to the benefits of methodological diversity within the highest court in a judicial hierarchy, such as the Supreme Court. It has been shown that in some circumstances ideological diversity at lower levels of the hierarchy can conserve on the costs of judicial administration, by allowing high-court judges to use the known ideology of lower-court judges as a screening device to reduce the number of decisions that must be reviewed on appeal. See Matt Spitzer & Eric Talley, Judicial Auditing, 29 J. LEGAL STUD. 649, 659-665 (2000).
266. See Ladha, supra note 21, at 629.
267. For an extensive treatment, see generally PAGE, supra note 21.
268. See CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 111-44 (2003).
269. See generally CASS R. SUNSTEIN, GOING TO EXTREMES: HOW LIKE MINDS UNITE AND DIVIDE (2009).
270. See SUNSTEIN, WHY SOCIETIES NEED DISSENT, supra note 211, at 112-114
271. See, e.g., Morrison v. Olson, 487 U.S. 654, 697-734 (1988) (Scalia, J., dissenting).
272. See, e.g., INS v. Chadha, 462 U.S. 919, 967-1003 (1983) (White, J., dissenting).
273. United States v. Nixon, 418 U.S. 683, 707 (1974).
274. -487 U.S. 654.
275. -524 U.S. 417 (1998).
276. See id. at 466-469 (Scalia, J., concurring in part and dissenting in part).
277. See id. at 476 (Breyer, J., dissenting).
278. See Thomas O. Sargentich, The Contemporary Debate About Legislative-Executive Separation of Powers, 72 CORNELL L. REV. 430, 486 (1987).
279. See Frederick Schauer, A Critical Guide to Vehicles in the Park, 83 N.Y.U. L. REV. 1109, 1127-1129 (2008);
280. Frederick Schauer, The Practice and Problems of Plain Meaning: A Response to Aleinikoff and Shaw, 45 VAND. L. REV. 715, 729 (1992).
281. See Cernauskas v. Fletcher, 201 S.W.2d 999, 1000 (Ark. 1947).
282. Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).
283. Id. at 458-62. For an argument that Holy Trinity got the legislative intentions and purposes wrong, thus creating rather than avoiding a mistake,
284. see Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833 (1998). For a contrasting view,
285. see Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter and History in Statutory Interpretation, 100 COLUM. L. REV. 901 (2000).
286. There are thus two distinct objections to Ronald Dworkin's mythical judge, Hercules. See generally DWORKIN, supra note 157. The first is that Hercules has superhuman epistemic capacities, whereas real appellate judges have epistemic limits. The second is that Hercules sits alone, whereas real appellate judges sit collegially. The second objection implies that what it is best for the judge to do is not a question that can be answered in isolation. Even a superhuman Hercules must operate in an environment where the behavior of other judges, not to mention other institutions, may affect what would otherwise be his best course of action.
287. As I have tried to show, the multimember character of the appellate court may, under certain conditions, magnify the epistemic competence of its members, by virtue of the Jury Theorem. In that case, the second objection would itself provide a partial cure for the first. Furthermore, the judges may calculate that the cognitive costs of strategic legalism are too high, resulting in a sophisticated second-best naïveté that causes them to mimic the behavior of a judge, like Hercules, who ignores what other judges do. In that case, the first objection would itself provide a partial cure for the second. Needless to say, however, these possibilities require an entirely different type of analysis than Dworkin provides; his framework makes the questions themselves invisible.