Inside or outside the system?

University of Chicago Law Review

Volumn 80, Issue 4, 2013, Pages 1743-1797

  Posner, Eric A ^a   Vermeule, Adrian ^b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 84892389909     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (197)

1. See, for example, Julian Davis Mortenson, Executive Power and the Discipline of History, 78 U Chi L Rev 377, 385 n 27, 425 (2011) (claiming that the Madisonian theory of separation of powers rests on "the recognition of human ambition" as opposed to "selfless patriotism," yet also assuming that judges will use judicial review to promote the common good) (emphasis omitted). These two views can be reconciled only by the further assumption that judges are not human.
2. On the difference between internal and external perspectives, see, for example, H.L.A. Hart, The Concept of Law 86-88 (Oxford 1961).
3. Richard H. Fallon Jr, Constitutional Constraints, 97 Cal L Rev 975, 995-1002 (2009).
4. John Ferejohn, Positive Theory and the Internal View of Law, 10 U Pa J Const L 273, 279 (2008). Law professors may of course play either the role of the analyst, as when they attempt to explain judicial behavior, or the role of an actor within the system, as when they argue cases or write briefs as amici curiae. The latter activities may blur the difference between roles as a practical matter (and in some cases that blurring is precisely the point). Yet as a conceptual matter, the distinction never blurs. Law professors may switch hats very rapidly, or try to wear two hats at once, but that behavior is irrelevant to the conceptual distinction we draw. Similar problems arise in Marxist theory. There is a standard tension between the external perspective of scientific socialism-according to which revolution becomes inevitable in the presence of certain economic and social conditions-and the internal perspective of political activists, who are committed to bringing about revolution for normative reasons and through intentional action.
5. The horns of the dilemma are well known. Either the laws of history operate with such iron necessity that political action is superfluous-communism will somehow come about "by itself" without propaganda, leadership, or mass action- or, if this view is discarded, as it must be, political action must be guided by values. Jon Elster, An Introduction to Karl Marx 189 (Cambridge 1986). The standard response to this tension is that the role of the revolutionary activist is to "shorten and lessen the birth-pangs" of the inevitable future. Karl Marx, 1 Capital: A Critique of Political Economy 15 (Charles H. Kerr 1915) (Samuel Moore and Edward Aveling, trans). That formulation in turn creates further problems; for discussion, see Elster, An Introduction to Karl Marx at 189-90 (cited in note 3). For an alternative attempt to resolve the tension.
6. see G.A. Cohen, History, Labour and Freedom: Themes from Marx 55-75 (Oxford 1988). Thanks to Professors Jon Elster and Mark Tushnet for guidance on these issues.
7. The original source is Jagdish N. Bhagwati, Richard A. Brecher, and T.N. Srinivasan, DUP Activities and Economic Theory, in David C. Colander, ed, Neoclassical Political Economy: The Analysis of Rent-Seeking and DUP Activities 17 (Ballinger 1984). For extensive consideration, see the articles in a symposium in 9 Econ & Pol 205 (1997).
8. For an earlier effort along these lines, see Adrian Vermeule, Self-Defeating Proposals: Ackerman on Emergency Powers, 75 Fordham L Rev 631, 636-40 (2006). For legal scholarship that is sensitive to the relevant problems.
9. see, for example, Scott Baker and Anup Malani, The Problem of Rational Courts (unpublished manuscript, June 2012) (on file with authors) (arguing that if courts are as rational as the actors they regulate, certain legal rules turn out to be inefficient).
10. James E. Fleming, Toward a More Democratic Congress?, 89 BU L Rev 629, 639-40 (2009) (critiquing proposals to improve Congress by means that require congressional approval).
11. Mark Tushnet, Some Skepticism about Normative Constitutional Advice, 49 Wm & Mary L Rev 1473, 1474 (2008) (arguing that outside advisors on constitutional design will be ignored if their counsel does not align with the incentives of local actors).
12. Mark Tushnet, Self-Historicism, 38 Tulsa L Rev 771, 772 (2003) (critiquing historicist analysis of constitutional law when used to support normative recommendations to judges).
13. 323 US 214 (1944).
14. Id at 246 (Jackson dissenting).
15. 531 US 98 (2000).
16. Id at 109.
17. Federalist 51 (Madison), in The Federalist 347, 349 (Wesleyan 1961) (Jacob E. Cooke, ed). 119 Harv L Rev 2312, 2330-47 (2006).
18. See, for example, N.W. Barber, Self-Defence for Institutions, 72 Camb L Rev *11 (forthcoming 2013), online at http://papers.ssrn.com/sol3/papers. cfm?abstract-id=2162129 (visited Nov 24, 2013).
19. Eric A. Posner, Balance-of-Power Arguments and the Structural Constitution *2 (University of Chicago Institute For Law & Economics Olin Research Paper No 622, Nov 2012), online at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=2178725 (visited Nov 24, 2013).
20. Adrian Vermeule, The System of the Constitution 38-43 (Oxford 2011).
21. See generally Adam Ferguson, An Essay on the History of Civil Society (Edinburgh 1966).
22. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Modern Library 1776).
23. See Vermeule, The System of the Constitution at 38-43 (cited in note 12).
24. Federalist 51 (Madison) at 349 (cited in note 10).
25. See Smith, Wealth of Nations at 14 (cited in note 13).
26. See M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U Pa L Rev 603, 604-05 (2001).
27. Posner, Balance-of-Power Arguments at *2 (cited in note 12).
28. See Vermeule, The System of the Constitution at 42 (cited in note 12).
29. For discussions of aggrandizement in constitutional doctrine and theory, see, for example, Bowsher v Synar, 478 US 714, 727 (1986).
30. INS v Chadha, 462 US 919, 951 (1983).
31. Buckley v Valeo, 424 US 1, 122-23 (1976).
32. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U Chi L Rev 123, 125-26 (1994).
33. A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw U L Rev 1346, 1367-69 (1994).
34. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv L Rev 915, 950-60 (2005).
35. Thomas P. Crocker, Presidential Power and Constitutional Responsibility, 52 BC L Rev 1551, 1557 (2011).
36. Federalist 51 (Madison) at 347 (cited in note 10).
37. Federalist 48 (Madison), in The Federalist 332, 333 (cited in note 10).
38. See Federalist 51 (Madison) at 350 (cited in note 10).
39. See Federalist 47 (Madison), in The Federalist 323, 325 (cited in note 10).
40. See Vermeule, The System of the Constitution at 39-40 (cited in note 12).
41. See Serge-Christophe Kolm, Introduction to the Economics of Giving, Altruism, and Reciprocity, in Serge-Christophe Kolm and Jean Mercier Ythier, eds, 1 Handbook on the Economics of Giving, Altruism and Reciprocity 1, 93-94 (Elsevier 2006).
42. Jon Elster, Altruistic Behavior and Altruistic Motivations, in Kolm and Ythier, eds, 1 Handbook on the Economics of Giving 183, 202-05 (cited in note 26).
43. See Vermeule, The System of the Constitution at 91-93 (cited in note 12).
44. Geoffrey Brennan and Alan Hamlin, Democratic Devices and Desires 252-54 (Cambridge 2001).
45. Torsten Persson and Guido Tabellini, The Economic Effects of Constitutions 94-96 (MIT 2003).
46. See Donald Wittman, The Constitution as an Optimal Social Contract: A Transaction Cost Analysis of The Federalist Papers, in Bernard Grofman and Donald Wittman, eds, The Federalist Papers and the New Institutionalism 73, 73-84 (Agathon 1989).
47. Federalist 51 (Madison) at 349 (cited in note 10).
48. Levinson and Pildes, 119 Harv L Rev at 2312 (cited in note 11).
49. Richard A. Epstein, Why Parties and Powers Both Matter: A Separationist Response to Levinson and Pildes, 119 Harv L Rev F 210, 213 (2006) (responding to Levinson and Pildes, who are cited in note 11).
50. See Levinson and Pildes, 119 Harv L Rev at 2347 (cited in note 11).
51. Id at 2368-84.
52. Id at 2349-56.
53. See Cass R. Sunstein, et al, Are Judges Political? An Empirical Analysis of the Federal Judiciary 113-22 (Brookings 2006).
54. See id at 129-31.
55. See, for example, Gregory C. Sisk and Michael Heise, Judges and Ideology: Public and Academic Debates about Statistical Measures, 99 Nw U L Rev 743, 778 (2005).
56. Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L J 2155, 2169-71 (1998).
57. See Levinson and Pildes, 119 Harv L Rev at 2329 (cited in note 11).
58. Id at 2355.
59. See, for example, id at 2374.
60. See id at 2375-84.
61. For another, and quite typical, example of this problem, see Gregory Dolin, Speaking of Science: Introducing Notice-and-Comment into the Legislative Process, 2014 Utah L Rev *1-2 (forthcoming), online at http://ssrn.com/abstract=2211769 (visited Nov 24, 2013). The diagnosis is that Congress bungles science-related issues, in large part due to the "lack of an independent, non-partisan forum for discussing and evaluating proposals." Id at *26. Committee hearings end up being partisan charades rather than occasions for genuine deliberation. See id at *6-15. The cure is supposed to be a "non-partisan body of experts," akin to the Congressional Budget Office (CBO), that would "score" proposals for scientific validity. See id at *26.
62. Given the diagnosis of hopeless partisanship, the argument needs an account of the supply side-of why exactly partisan members of Congress would bring such a nonpartisan scientific body into existence and then respect its neutrality over time. The only account offered here-offered as an explanation for the creation of a nonpartisan CBO, but presumably intended to apply by analogy-is the idea that "Congress is by its very nature bipartisan (even when a single party has a majority in both chambers) and therefore each party has to try to accommodate the other to a certain extent." See id at *41. This is in obvious tension with the diagnosis; if that's so, then why doesn't the ordinary committee process provide a sufficiently bipartisan forum, making a special body unnecessary?
63. Levinson and Pildes, 119 Harv L Rev at 2379 (cited in note 11).
64. See, for example, David E. Lewis, Presidents and the Politics of Agency Design 32-36 (Stanford 2003).
65. Arjen Boin, Sanneke Kuipers, and Marco Steenbergen, The Life and Death of Public Organizations: A Question of Institutional Design?, 23 Governance 385, 402 (2010).
66. Curtis A. Bradley and Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv L Rev 411, 432 (2012).
67. 343 US 579 (1952).
68. See Bradley and Morrison, 126 Harv L Rev at 440-41 (cited in note 46).
69. Id at 452.
70. Id at 441-43.
71. As Professor Alison L. LaCroix points out: [T]he Madisonian model haunts Bradley and Morrison's account. Much of their argument presumes an adversarial relationship between the political branches and largely overlooks the role of judiciary. Their Article for the most part treats the judiciary, especially the Supreme Court, as an arbiter of separation of powers disputes rather than as an active branch of the federal government. But, as the examples of judicial review and the political question doctrine demonstrate, the Court's decisions on issues of justiciability are assertions of ultimate interpretive authority, however deferential and self-restraining their immediate impact. Alison L. LaCroix, Historical Gloss: A Primer, 126 Harv L Rev F 75, 83 (2012).
72. See Jack M. Balkin and Sanford Levinson, Understanding the Constitutional Revolution, 87 Va L Rev 1045, 1067 (2001).
73. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 101-04 (Harvard 1980).
74. Id at 103.
75. Id at 74-75.
76. See, for example, Jonathan R. Macey, Judicial Preferences, Public Choice, and the Rules of Procedure, 23 J Legal Stud 627, 631 (1994).
77. Jonathan R. Macey, Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory, 74 Va L Rev 471, 510 (1988).
78. Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L J 31, 67 (1991) (citation omitted).
79. Thomas W. Merrill, Does Public Choice Theory Justify Judicial Activism After All?, 21 Harv J L & Pub Pol 219, 224-25 (1997).
80. Elhauge, 101 Yale L J at 67-68 (cited in note 57).
81. See also Derrick A. Bell Jr, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv L Rev 518, 525-26 (1980).
82. For an example in this spirit, see Cass R. Sunstein, If People Would Be Outraged by Their Rulings, Should Judges Care?, 60 Stan L Rev 155, 204-05 (2007).
83. Justin Driver, Rethinking the Interest-Convergence Thesis, 105 Nw U L Rev 149, 151 (2011).
84. See also Bell, 93 Harv L Rev at 523 (cited in note 59).
85. Driver, 105 Nw U L Rev at 179 (cited in note 61).
86. Id at 175-81.
87. Bell, 93 Harv L Rev at 523 (cited in note 59).
88. See, for example, Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L J 1011, 1023 (2003) (arguing for an "Extra-Legal Measures model" of emergency powers in which public officials may "act extralegally," subject to ex post review).
89. Giorgio Agamben, State of Exception 2 (Chicago 2005).
90. A.V. Dicey, Introduction to the Study of the Law of the Constitution 280, 407 (Macmillan 8th ed 1915).
91. See Eric A. Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts 133-50 (Oxford 2007) (discussing and criticizing ratchet theory).
92. The paradox can be seen more easily once one realizes that scholars who advocate responsible illegality are essentially arguing that the president should engage in civil disobedience and the legal system should forgive him when it is justified. If the law is interpreted as whatever happens in the legal system, the president who is forgiven never acted illegally in the first place. It's as if Congress passed a law that provided that anyone who engages in civil disobedience may not be convicted of the crime he is trying to commit. People then who tried to engage in civil disobedience would not be able to do so; the underlying substantive law that they object to would simply cease to exist.
93. 323 US at 242 (Jackson dissenting).
94. Id at 245 (Jackson dissenting).
95. Id at 244 (Jackson dissenting).
96. Id at 246 (Jackson dissenting).
97. Korematsu, 323 US at 246 (Jackson dissenting).
98. Id at 247 (Jackson dissenting).
99. Id at 248 (Jackson dissenting).
100. Id at 246 (Jackson dissenting).
101. Youngstown, 343 US at 635-38 (Jackson concurring).
102. See, for example, Samuel Issacharoff and Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime, 5 Theoretical Inq L 1, 25 (2004).
103. See id at 44.
104. See, for example, Posner and Vermeule, Terror in the Balance at 48-49 (cited in note 67).
105. See, for example, Terry M. Moe and William G. Howell, The Presidential Power of Unilateral Action, 15 J L, Econ, & Org 132, 148-53 (1999).
106. 453 US 654 (1981).
107. See id at 676-82.
108. Issacharoff and Pildes, 5 Theoretical Inq L at 36-37 (cited in note 78).
109. There is a similar paradoxical flavor to Professors Dan Kahan and Donald Braman's argument that because people evaluate evidence through "cognitive filter[s]" derived from their cultural commitments, it is futile for advocates to try to change their minds about gun control by supplying them with facts and figures. Instead, advocates should construct "a pertinent yet respectful expressive idiom" that will persuade (delude?) people into taking the advocates' position. See Dan M. Kahan and Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U Pa L Rev 1291, 1323-24 (2003). In the spirit of the noble lie, the advocate may need to conceal his motivation for constructing the idiom in order to make it succeed; it is not clear whether Kahan and Braman contemplate that.
110. See Vermeule, 75 Fordham L Rev at 637-38 (cited in note 5).
111. Posner and Vermeule, Terror in the Balance at 71-72 (cited in note 67).
112. See Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism 81 (Yale 2006).
113. See id.
114. Id at 3.
115. Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts xxviii-xxix (Thomson/West 2012).
116. See Scalia Defends Originalism as Best Methodology for Judging Law (University of Virginia School of Law Apr 20, 2010), online at https://www.law.virginia.edu/html/news/2010-spr/scalia.htm (visited Nov 24, 2013): But originalism does not invite [a judge] to make the law what he thinks it should be, nor does it permit him to distort history with impunity. . . . All of this cannot be said of constitutional consequentialists. If ideological judging is the malady, the avowed application of such personal preferences will surely hasten the patient's demise, and the use of history is far closer to being the cure than being the disease.
117. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U Chi L Rev 1175, 1179-80 (1989): For when, in writing for the majority of the Court, I adopt a general rule, and say, "This is the basis of our decision," I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle.
118. For a related but somewhat different version of these ideas, in which the judge suffers not from weakness of the will but from a belief that self-binding through rules is irrational.
119. see Mark Tushnet, Self-Formalism, Precedent, and the Rule of Law, 72 Notre Dame L Rev 1583, 1584 (1997).
120. See, for example, Robert D. Cooter, The Objectives of Private and Public Judges, 41 Pub Choice 107, 107-08 (1983).
121. Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 Fla St U L Rev 1259, 1260 (2005).
122. Andrei Shleifer, The Failure of Judges and the Rise of Regulators 11-12 (MIT 2012).
123. Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges: A Theoretical & Empirical Study of Rational Choice 25 (Harvard 2013).
124. See, for example, Richard A. Posner, How Judges Think 37 (Harvard 2008).
125. See George L. Priest, The Common Law Process and the Selection of Efficient Rules, 6 J Legal Stud 65, 81 (1977).
126. Paul H. Rubin, Why Is the Common Law Efficient?, 6 J Legal Stud 51, 61 (1977).
127. See, for example, Robert Cooter and Lewis Kornhauser, Can Litigation Improve the Law without the Help of Judges?, 9 J Legal Stud 139, 156 (1980).
128. See, for example, Epstein, Landes, and Posner, The Behavior of Federal Judges at 48 (cited in note 94).
129. Kirk A. Randazzo, Strategic Anticipation and the Hierarchy of Justice in U.S. District Courts, 36 Am Pol Rsrch 669, 676-77 (2008).
130. Max M. Schanzenbach and Emerson H. Tiller, Strategic Judging under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence, 23 J L, Econ, & Org 24, 25-26 (2007).
131. See Bush, 531 US at 109.
132. David A. Strauss, Bush v Gore: What Were They Thinking?, 68 U Chi L Rev 737, 750 (2001).
133. See Bush, 531 US at 139-41 (Ginsburg dissenting).
134. Id at 109 (majority).
135. See, for example, Guido Calabresi, In Partial (but Not Partisan) Praise of Principle, in Bruce Ackerman, ed, Bush v. Gore: The Question of Legitimacy, 67, 80 (Yale 2002) (deeming the opinion "designed to self-destruct").
136. Samuel Issacharoff, Political Judgments, 68 U Chi L Rev 637, 650 (2001) (describing the opinion as "the classic 'good for this train, and this train only' offer").
137. Many scholars believe that the majority had a nakedly political goal. See, for example, Jack M. Balkin, Bush v. Gore and the Boundary between Law and Politics, 110 Yale L J 1407, 1409 (2001).
138. Margaret Jane Radin, Can the Rule of Law Survive Bush v. Gore?, in Ackerman, ed, Question of Legitimacy 110, 114 (cited in note 103). Others believe that they were justified in taking extraconstitutional steps to end a disputed election.
139. See, for example, Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts 150 (Princeton 2001).
140. John C. Yoo, In Defense of the Court's Legitimacy, 68 U Chi L Rev 775, 776 (2001). A middle position is that the majority believed that the Florida Supreme Court sought to throw the election for the Democrats, and saw no other way to stop them.
141. See Strauss, 68 U Chi L Rev at 751-55 (cited in note 100) (addressing but rejecting this argument).
142. See, for example, David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis, 101 Mich L Rev 2565, 2575 (2003).
143. See Charles Fried, An Unreasonable Reaction to a Reasonable Decision, in Ackerman, ed, Question of Legitimacy 3, 15 (cited in note 103) (describing the Court's "caveat" as simply "boilerplate").
144. Owen Fiss, The Fallibility of Reason, in Ackerman, ed, Question of Legitimacy 84, 88 (cited in note 103) (deeming the disclaimer "commonplace").
145. See note 103 and accompanying text.
146. Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 Stan L Rev 1, 6-15 (2007).
147. Richard L. Hasen, The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 Geo Wash L Rev *11-27 (forthcoming 2013), online at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=2182857 (visited Nov 24, 2013). The latter paper shows that lower courts have begun to use Bush v Gore as a precedent in important cases, and the Supreme Court has been unwilling or unable to stop them.
148. See, for example, Southwest Voter Registration Education Project v Shelley, 344 F3d 882, 894 (9th Cir 2003).
149. vacd en banc 344 F3d 914 (9th Cir 2003).
150. Stewart v Blackwell, 444 F3d 843, 859 (6th Cir 2006).
151. vacd and superseded en banc 473 F3d 692 (6th Cir 2007).
152. These "punch card" cases are discussed in greater depth in Hasen, 60 Stan L Rev at 9-15 (cited in note 108).
153. See, for example, Obama for America v Husted, 888 F Supp 2d 897, 905 (SD Ohio 2012).
154. affd 697 F3d 423 (6th Cir 2012).
155. Northeast Ohio Coalition for the Homeless v Husted, 696 F3d 580, 598 (6th Cir 2012).
156. Obama for America, 888 F Supp 2d at 905.
157. Northeast Ohio Coalition for the Homeless, 696 F3d at 598, 604.
158. See also Hasen, The 2012 Voting Wars, 81 Geo Wash L Rev at *2 (cited in note 108).
159. See, for example, Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L Rev 23, 43-47 (2005) (arguing that judges and lawyers rely on unpublished opinions as sources of precedent, whether or not courts permit those opinions to be cited). As of 2006, federal courts of appeals are required to permit parties to cite unpublished opinions. See FRAP 32.1(a).
160. See Jack Goldsmith and Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv L Rev 1791, 1794 (2009).
161. UN Charter Art 2(4) ("All members shall refrain . . . from the threat or use of force."); UN Charter Art 39 (UN authorization); UN Charter Art 51 (self-defense exception).
162. See generally Resolution 1973, UN Security Council, 6498th mtg (Mar 17, 2011), UN Doc S/RES/1973.
163. See Jules Lobel and Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 Am J Intl L 124, 134 (1999).
164. See The Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned 67-97 (Oxford 2000).
165. See id at 4.
166. See Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 Eur J Intl L 23, 27 (1999).
167. Nico Krisch, Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo, 13 Eur J Intl L 323, 327 (2002).
168. Anne Orford, Muscular Humanitarianism: Reading the Narratives of the New Interventionism, 10 Eur J Intl L 679, 680 (1999).
169. See The Independent International Commission on Kosovo, The Kosovo Report at 173 (cited in note 118).
170. Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, Presidential Proclamation 2667, 10 Fed Reg 12303, 12305 (Sept 28, 1945).
171. See United Nations Office of Legal Affairs Division for Ocean Affairs and the Law of the Sea, The United Nations Convention on the Law of the Sea: A Historical Perspective (United Nations 1998), online at http://www.un.org/Depts/ los/convention-agreements/convention-historical-perspective.htm (visited Nov 24, 2013).
172. See Convention on the Law of the Sea, Art 77, 1833 UNTS 397 (Dec 10, 1982, entered into force Nov 16, 1994).
173. See, for example, Eric A. Posner and Alan O. Sykes, Efficient Breach of International Law: Optimal Remedies, "Legalized Noncompliance," and Related Issues, 110 Mich L Rev 243, 287 (2011).
174. Jonathan I. Charney, The Power of the Executive Branch of the United States Government to Violate Customary International Law, 80 Am J Intl L 913, 915 & n 8 (1986).
175. The Independent International Commission on Kosovo, The Kosovo Report at 174 (cited in note 118).
176. This definition encompasses the case of two-level systems, in which interactions between individuals create institutions that then interact with one another. See Vermeule, The System of the Constitution at 27 (cited in note 12).
177. See Hart, The Concept of Law at 86-88 (cited in note 2).
178. Fallon, 97 Cal L Rev at 995-1002 (cited in note 2).
179. See Isaac Unah and Ange-Marie Hancock, U.S. Supreme Court Decision Making, Case Salience, and the Attitudinal Model, 28 L & Pol 295, 309 (2006).
180. Paul M. Collins Jr, The Consistency of Judicial Choice, 70 J Polit 861, 868 (2008).
181. See Bruce Ackerman, 1 We the People: Foundations 6-7 (Belknap 1991).
182. Interestingly, Professor Ackerman abandons this view for security emergencies, urging Congress to adopt a framework statute to constrain a possibly ill-motivated executive. See Ackerman, Before the Next Attack at 4-5 (cited in note 88). As Professor Jon Elster has pointed out, it is typical of constitutional moments that they take place during emergencies; only then are people aroused enough to debate fundamental law.
183. See Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 Duke L J 364, 370-71, 394-95 (1995).
184. See, for example, Sandra Day O'Connor, Foreword, in James Sample, et al, The New Politics of Judicial Elections, 2000-2009: Decade of Change i (Brennan Center for Justice 2010).
185. Jamal Greene, Term Limits for Federal Judges (NY Times July 8, 2012), online at http://www.nytimes.com/roomfordebate/2012/07/08/another-stab-at-the- us-constitution/revisiting-the-constitution-we-need-term-limits-for-federal- judges (visited Nov 24, 2013).
186. See Posner, Breaking the Deadlock at 150 (cited in note 104).
187. Strauss, 68 U Chi L Rev at 755 (cited in note 100).
188. But see Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv L Rev 625, 665-77 (1983) (arguing that the lawmakers can deliberately and successfully design the law to say different things to different audiences). We believe that this is possible only in a fragile and temporary way; over the long run, people are not fooled.
189. See Part I.A.
190. See Tushnet, 49 Wm & Mary L Rev at 1487 (cited in note 5) (discussing narrow conditions under which this is possible).
191. See, for example, Darius Rejali, Torture and Democracy 24 (Princeton 2009).
192. Jean Maria Arrigo, A Utilitarian Argument against Torture Interrogation of Terrorists, 10 Sci Engineering Ethics 543, 544 (2004).
193. For this argument in the economic literature, see Stephen Coate, An Efficiency Approach to the Evaluation of Policy Changes *20-21 (NBER Working Paper No 7316, Aug 1999), online at http://www.nber.org/papers/w7316 (visited Nov 24, 2013), who argues that economists should propose Pareto-superior projects on the assumption that political agents will believe that such projects will be in their self-interest; in the same spirit.
194. see Avinash Dixit, Economists as Advisers to Politicians and Society, 9 Econ & Pol 225, 228-29 (1997).
195. See Aaron-Andrew P. Bruhl, The Senate: Out of Order?, 43 Conn L Rev 1041, 1054 (2011).
196. See id at 1057.
197. 410 US 113 (1973).