Category Archives: Uncategorized

Privacy and Freedom of Speech in the Internet Era

Dec 8, 2015 Edward RubinAdd a Comment

Freedom of speech can be regarded as the product of the modernization process that occurred in Europe during the seventeenth and eighteenth centuries. As people moved out of the narrow confines of their rural villages, and the population of the towns expanded beyond the narrow limits of craft guilds and commercial families, a public culture developed within and among the rapidly expanding urban centers of the Early Modern era. In these settings, the gradual relaxation of the legal sanctions against various types of speech was accompanied by a parallel attenuation of the social sanctions that constrained such speech. The shaming and shunning that could occur in a village or small town ceased to function in the burgeoning urban context. People expressing dissident views could find like-minded individuals with whom to socialize and achieve a degree of anonymity in the more mobile and pluralistic world of broad boulevards, large financial or industrial organizations and bureaucratized public institutions.

As Ronald Krotoszynski points out in a recent article that I like lots, the advent of modern communication technology places both sources of our hard-won freedom of expression at risk. It reintroduces shaming and shunning penalties by enabling those who are offended by a particular statement to generate condemnations that will be permanently attached to an individual’s Net presence and thus publicized throughout society. In addition, the government’s access to big data enables it to impose indirect threats to free speech in the form of wide ranging, coordinated surveillance of the individual’s activities. Even if the legal system continues to prohibit direct criminalization of speech, the possibility of prosecution for other crimes, or the government’s unauthorized but untraceable disclosure of sensitive information, may well produce a chilling effect that rivals the force of criminal penalties.

Professor Krotoszynski explores the possibility of legal responses to this potential loss of freedom by contrasting European and American law on the subject. Although the idea that Europe provides more extensive protection for personal privacy than the U.S. has become something of a comparative law bromide, he demonstrates that it possesses an essential validity. His summary of European Union doctrine provides an excellent introduction for the general reader. In contrast to American law, the European Convention on Human Rights not only includes an explicit right to free speech (Article 10), but also an explicit protection of personal privacy (Article 8). In addition, the European Court of Human Rights that interprets this Convention follows general Continental practice in holding that the violation of a right is not sufficient, by itself, to justify judicial relief. Rather, once the violation has been found, the extent of the burden it imposes must be balanced against the pragmatic justifications for the state policy that has trenched upon the right in question. Thus, the European Court must balance two conflicting rights of equal legal dignity, and must carry out that calculation at an explicitly identified stage of the judicial decision making process.

This would appear to form a dramatic contrast with American law. The U.S Constitution definitively establishes freedom of speech and does not state any countervailing right (the Supreme Court’s right of privacy being an interpretation, and applying primarily to family choice). Once a court has found a violation of that right, the law or policy that violates that right is supposed to be invalidated, with no further consideration of the government’s justification. But Professor Krotoszynski argues that, in actuality, the contrast is not quite so stark. The European Court finds, in a variety of circumstances, that the Article 10 right of free speech must prevail, particularly when the person attempting to assert privacy rights is a public figure. Conversely, American courts, with or without positive law to invoke, have favored privacy interests over speech in cases where the intrusion on the individual was deemed excessive, such as targeted picketing of a person’s home, using the Freedom of Information Act to obtain personal data, recording a person’s cell phone conversations, or publishing information obtained through civil discovery.

Given this partial convergence of European and American law, Professor Krotoszynski suggests, the United States is in a position to learn from current European efforts to balance free speech and personal privacy law. The reason why this balance must be struck is that, in our modern world, privacy itself is as much a component of free speech as a constraint upon it. “In an age of metadata, privacy constitutes a kind of precondition to speech, just as assembly constitutes a necessary antecedent to petitioning” (p. 1335). The analogy to petitioning, which happens to be the subject of a book by Professor Krotoszynski, is telling. An assembly is a place where people gather to formulate a petition. Similarly, an individual must gather his or her own thoughts before speaking, and certainly before speaking effectively, about an issue. Modern urban life, free from the constants imposed by the intrusive eyes and debilitating gossip of one’s fellow villagers or townspeople, provides a clear space for such preparatory thought.

But the Internet’s ability to intrude into a person’s life, to disseminate visual images of people’s careless actions and to pillory their passing comments, invades and colonizes that formerly clear space. It dissolves the anonymity that the modern city conferred on its residents, and restores, through fictive screen names, the anonymity by which disparaging remarks could be introduced into the stream of village gossip.  Government’s collection of big data poses an equivalent threat, not so much from what appears in public as from what is known in the hidden recesses of administrative agencies. In both cases, the effect is to invade that same abode of thought that serves as a prerequisite for speech. Modernity’s gift to freedom has not only been to place constraints on public power, but also to dispel the suffocating force of conventional opinion. It provides people with an alembic where they can formulate their thoughts and plan their actions free of either government surveillance or social disapproval—in other words, it provide them with privacy. Professor Krotoszynski alerts us to the essential role that privacy plays in freedom of expression—not as a countervailing force but as an essential component. At the same time, he traces the way that those two principles can come into conflict in many real situations, how European courts have struggled to resolve those conflicts, and how our own courts and legislators might learn from that experience, and we move, or are dragged, forward into the information age.

Long Shadows and Clubbable Democracies

Nov 6, 2015 W.A. EdmundsonAdd a Comment

Approximately eleven million people currently reside in the United States as undocumented aliens. Most of these are so-called “economic” immigrants, who do not qualify for political asylum.¹ Due to armed conflicts in the Middle East, approximately 350,000 migrants illegally entered countries of the European Union in the first eight months of the current year. Many of these will qualify for political asylum, but many will not; for from a legal perspective they, like the vast majority of US “illegals,” have immigrated primarily for economic reasons.² Not to pillage and plunder, but to seek a better life by taking up opportunities for work in these wealthier and more stable countries. In other words, they come and keep coming mainly in order to bargain freely with legal residents who will pay for their labor.

The nations of Earth claim the right to exclude non-citizens from their territories, and many actively do so. Except in extraordinary circumstances, would-be immigrants have no recognized human right to be admitted or to remain. Illegal immigration, then, can present a complex set of policy questions whose answers involve balancing a range of reasons, both for and against policies such as amnesty, adjustment of legal status, management of quotas, enhanced border enforcement, construction of physical barriers, and deportation. The reasons going into the mix include public attitudes, human hardship, monetary costs of many kinds, impacts on wages, crime rates, demand for public services, and intangibles such as community homogeneity and “quality of life.” Jeremy Waldron rightly rejects the view that the question is essentially one of policy or the application of a settled ethics of national sovereignty. Waldron has rarely shied from the role of public intellectual, and here he seems poised to embrace it with uncommon vigor.

“If there were no state or system of positive law, would individuals organized less formally into communities have the right to drive away strangers who approached their vicinity?” (p. 3)—so Waldron puts a question that ought to be central to any discussion of the justice of excluding migrants from territories. We tend naturally to accept territorial sovereignty of governments just as we naturally tend to accept the justice of individual private ownership of real property. Our acceptance is qualified, of course, but the usual presumption is that states have a right of some kind to exclude aliens at their borders, just as we have a right of some kind selectively to exclude strangers from our front porches. The sovereign right arises by aggregation of individual rights.

When the presumed right to own private property is challenged, educated English-speakers tend to turn to John Locke. Locke’s account of original acquisition, with its image of mixing labor and its proviso of leaving enough and as good for others, seems a plausible ground to stand on. So also, we may think, it supplies enough and as good a ground for the presumption that states have a right to exclude aliens, subject only to limited humanitarian exceptions. States are simply the assignees of natural individual rights.

Waldron carefully but remorselessly demolishes this comforting strategy. Assuming, for discussion’s sake, that Locke’s account of private property is valid, it cannot soundly be extended to the case of state’s claimed sovereign right over a territory. Lockean rights to real property are not “clubbable” (p. 12).  Waldron has written extensively on Locke, including a book on Locke’s theory of property, and so he writes with a well-earned authority on the subject. “The Lockean approach is not the only way of justifying state powers,” he admits, but rightly adds that “[i]f the Lockean approach does not vindicate the right to prohibit immigration, then the options for its justification are drastically reduced” (p. 6). Relatively few anglophone readers can comfortably turn to Hegel as a philosophical back-up; and Waldron takes up and disposes of a number of related apologies for territorial sovereignty.

Not only is the paper forcefully argued, it shows how deeply Waldron cares about what is happening to people. This accounts for the impatience evident in his swipes at former British Prime Minister John Major’s smarmy invocation of “long shadows on cricket grounds,” (p. 20) and at the now-fashionable notion that democracies can legitimately exclude migrants to preserve a homogeneous national culture. In language that will redden some ears, Waldron declares that “Modern political philosophy has really never been shabbier than in its invocation of ‘cultural rights’” (p. 19). The concept of a state-defined culture—(don’t they see?)— is just as antithetical to liberal democracy as a state religion.

Waldron goes even farther, arguing that justice limits not only what states may do, but what citizens may permissibly ask that they do.

we are inclined to think that—whatever states have a right to do—citizens have a right (a free speech right) to advocate whatever policies they like and also a right (a democratic right) to exercise their vote however they please. But in some areas where the legitimacy of state action is restricted, it is actually not inappropriate to infer restrictions on citizen advocacy. (p. 2, fn 2)

His suggestive case for the proposition that international human rights law imposes a content-based limit on what speech states are free to tolerate is bound to be controversial.   But he is right to deplore the demagogic pandering to anti-immigrant sentiment, by which many politicians try to show that they are not “out of touch.” Waldron reminds us that there are some popular sentiments that it is not a good thing to be in touch with.

How the Other Half Banks

Oct 2, 2015 Daria RoithmayrAdd a Comment

Once upon a time there were banks that served the poor. Government structured banks for that purpose—government gave banks cheap money and protection against failure partly in exchange for their providing a place to deposit money, earn interest and get credit, along with economic stability, for everyone. Financial innovation, increased competition and deregulation changed all that: the period of dramatic transformation left the poor and working class without services, as banks came under competitive pressure.

Once upon a time, post offices provided banking functions, giving the ordinary customer a brick-and-mortar office to park their cash. Then competition from higher-interest rate banks changed all that; with shrinking demand, postal banking was dismantled in 1967.

Mehrsa Baradaran’s terrific book, How the Other Half Banks, argues that we could and should ask banks to serve the poor and working class once again. In particular, post office banks (with storefronts and websites both) could provide those missing banking services: a place to park cash, earn interest and take out small amount loans.

Baradaran has become the academic face for postal banking: in the wake of her article in the Harvard Law Review Forum on postal banking, she has consulted for the U.S. Postal Service Inspector General, has appeared together with Paul Krugman, and has published in the New York Times, The Atlantic, Bloomberg, NPR, Slate, and other major media outlets. Senator Elizabeth Warren has relied on Baradaran’s historical expertise in sketching out the case for postal banking as a real policy option.

The book expands on the Harvard Law Review Forum essay significantly, but for a cross-over audience, academic and trade, leaning heavily on the trade (necessarily with less nuance and fewer footnotes). The book makes two central arguments. First, despite banking’s origins as a public institution, banking no longer offers adequate services to the poor and working class in the wake of deregulation, because banks have come under competitive pressure to chase profits. Second, a public option for banking could restore these services to those who are now unbanked; in particular, postal banking is one potential public option whose time might have come again. Baradaran contributes a great deal by linking these two arguments together, to remind us of banking’s public beginnings, and to show us how postal banking cures what ails us.

In the first part of the book, Baradaran narrates the story of how banks first adopted, and then abandoned, the mission to serve all sectors of the public. History shows that government structured banks as it did on the assumption that banks would serve not just the moneyed classes, but people from humbler circumstances as well. At the broadest level, banks were originally envisioned as public institutions through which the government wielded its hand on economic policy to shepherd the national economy towards productivity. At the narrower level, banks were expected to serve all members of the public regardless of economic circumstance. For those reasons, banks were given access to cheap credit, discount windows, federal backing via FDIC insurance, and, more recently, government bailout in time of great crisis. Far from being ordinary market players, banks were stewards of public economic health, and government was entangled in every part of their operation.

Bank deregulation changed all that, together with the accompanying shift in thinking and policy, and the radical restructuring of the market. Now banks have become free to act more as private corporations with fewer restrictions, in order that banks can pursue profitability. At the same time, banks are still vested with responsibility for (and the ability to affect) the country’s economic health. Smartly, Baradaran acknowledges that banks needed to restructure, given the shift in the economy, but she quarrels with the specifics of deregulation (and tends to oversimplify a bit along the way). Still, her aim is not to criticize deregulation per se: her main focus is to demonstrate the dramatic departure from public institution to pseudo-private actor, and that she does well.

Against the historical backdrop, she sketches the problem of the unbanked—the failure of banks to serve the poor and working class. Baradaran first focuses her lens on the alternative services to which the unbanked have now turned: payday lending, title and installment loans, check cashing, and other such services. She rehearses at length the research on the existence and effect of such services on the poor and working class: bankruptcy, sky-high debt and an economic downward spiral.

One of Baradaran’s central contributions is to redescribe the problem of the unbanked in terms other than market failure. Given the level of government entanglement with banks, we can’t think about banks as following ordinary market rules (think about the Fed setting rates, for example). Accordingly, says Baradaran, the problem of payday lending and other fringe services is not a problem of ordinary market failure involving mundane asymmetries of information, but rather a structural policy problem. In particular, in the wake of innovation and deregulation, institutions that had once served the poor and working class abandoned their public mission to now chase profits, by necessity.

These institutions had little choice, she says. Owing to deregulation, credit unions, savings and loans, and other specialized and small community banks lost their once-protective geographic monopolies and now came under significant competitive pressure to improve profitability. Because community banks found it more costly to provide products and services for the poor and working class (e.g., small-amount loans, interest-based checking), banks abandoned those higher-cost services for lower-income patrons in favor of more profitable products and services.

Baradaran’s exploration of this argument is thorough: she investigates failed government efforts to require, subsidize or otherwise entice banks to provide services for the unbanked. For example, she reviews at length the Community Reinvestment Act, a regulatory requirement/subsidy scheme that failed because it required too much of banks and failed to sufficiently subsidize the full cost of providing services for the other half.

In the last part of the book, Baradaran explores potential remedies for the problem of the unbanked, as part of a call to shift economic policy to provide for them. She investigates among other options the revival of community banks, micro-credit, pre-paid cards, and Walmart banking, noting their strengths and weaknesses. One could write a paper on each of these options, and I can’t fault her completely for not spending more time on these potential remedies, though I’d have liked to see a more extended discussion, particularly of Walmart banking.

In the most refreshing and innovative contribution in the book, and perhaps the reason that I most adore it, Baradaran outlines at length the most ingenious “public option” solution: postal banking. The idea is not hers originally, but she seizes and expands on the idea brilliantly and at great length. In particular, she advances the case for postal banking by reviewing the country’s earlier experience with postal banks, and by linking that experience to the modern problem of missing services for the poor and working class.

As this chapter opens, Benjamin Franklin’s postal system comes into view and we learn about the bureaucratic and logistic wonder that is the U.S. post office. Like banking, the reach and scope of the postal system is essential to a growing economy; like banking, the system builds connections of trust between government and citizen.

Baradaran narrates the long history of the country’s first postal banks, and the debate over their existence. Baradaran shows how postal banks provided for the needs of the working poor, and how in fact postal banks were adopted for that very reason. In a real moment of déjà vu, Baradaran recounts the financial crisis—the Panic of 1907—that paved the way for the country’s full embrace of postal banking, as a way of providing for those toward the bottom of the economic ladder.

Baradaran then persuasively argues that postal banking might now be revived to provide both deposit and credit products and services for poor and working class customers. Although postal banks historically provided mostly the opportunity for savings, and less for extension of credit, the book suggests that small-amount loans could be offered via postal banks. For those who deal in cash, a brick-and-mortar postal bank could provide a way to convert cash to digital dollars; for those who prefer Internet banking, the postal bank could provide that too.

Baradaran smartly acknowledges that like Walmart banking, postal banking would face significant political opposition (though she notes that, compared to Walmart, postal banking would have the advantage of generating more trust as a public entity, without Walmart’s profit-focused reputation of underpricing and then raising prices). Baradaran recounts not just the success of postal banks in the U.S. (which closed when community banks paying higher interest rates came onto the scene), but also their relative and variable success in other countries like Japan, Germany, the UK, France, and Brazil. One can appreciate why the policy world has come to Baradaran for her expertise, and this book will constitute a central contribution to the debate.

My one major quibble with this book is that it does not acknowledge the racial dimension of the problems of the unbanked. Though Baradaran discusses the history of the Freedman’s Bank and talks about racial discrimination in banking, she does not acknowledge that payday lending and check cashing establishments are four times more likely to locate in minority neighborhoods, even controlling for income, and that a disproportionate share of borrowers are people of color. The structural problem of the unbanked involves the country’s racial history more than she acknowledges.

Even so, I will recommend this book to all who are interested in structural racism. Without explicitly recognizing it, Baradaran demonstrates how the the post-deregulation restructuring of banking has disproportionately impacted communities of color, and how postal banking and other public options might bring them back into the fold once more. Baradaran’s revival of postal banking, and her description of the disappearance of services in the wake of deregulation, is fresh and engaging, and I highly recommend both the law review forum essay and book for all who are interested in the structure of inequality.

Why are Fictions so Common in Law?

Sep 7, 2015 Brian TamanahaAdd a Comment

Law is filled with legal fictions, roughly defined as statements known to be false but treated as true by legal actors to achieve a purpose. No one is deceived by legal fictions, and the consequences of the fiction are generally recognized. The early common law was filled with fictions, often utilized to satisfy pleading or jurisdictional requirements. Well-known examples are fictional statements about lease and ejectment necessary for the action of ejectment, and statements about goods lost and found necessary for trover.³ Perhaps the most infamous example is Mostyn v. Fabrigas (1773), when Lord Mansfield concluded that Minorca was in London for the purposes of obtaining jurisdiction in the case.⁴ By the nineteenth century, after Bentham’s caustic attacks on legal fictions,⁵ their prevalence in law had come to be an embarrassment. An American jurist critically remarked in 1841, “All manner of pleadings and proceedings, both in law and equity, are stuffed with falsehoods and lies.”⁶ In Ancient Law (1861), Sir Henry Maine acknowledged fictions serve the useful purpose of facilitating change in the law, but he considered them a discredit to modern legal systems.⁷  Yet, a century and a half later, fictions still continue to exist in law.

Maksymilian Del Mar and William Twining have produced a superb collection of 19 essays on legal fictions. The book begins with a splash, publishing a first-time English translation of Hans Kelsen’s 1919 response to Vaihinger’s influential book on fictions.⁸ In consistently high quality essays, subsequent chapters take up a broad range of issues. About half of the chapters involve theoretical explorations that focus on what fictions are, how they should be defined, what purposes or functions they serve, why they exist, what their implications are for law and language, how influential theorists have considered them (particularly Fuller, Bentham, and Vaihinger), and various other issues. Another set of chapters are oriented toward specific contexts of legal fictions, including the early common law, ejectment actions, Roman law, exclusionary rules, copyright law, tort law, Rabbinic law, securities law, and criminal law.

A collection this varied could easily have lacked coherence. This risk was heightened because contributors were free to define legal fictions in any way they desired. While nearly all jurists would agree that the above mentioned examples are legal fictions, other identifications are debatable. Kelsen identified the “legal subject” or “legal person” as a fiction because it has no real object but involves the personification of a complex of norms;⁹ but since there is no falsehood, it might be considered a legal construction rather than a fiction. The classical assertion that common law judges do not make law but merely declare it was tagged a fiction,¹⁰ though it is perhaps more aptly described as an idealization or myth. The treatment of corporations as legal persons is mentioned as a fiction by several contributors,¹¹ though one might question whether this is a knowing falsehood rather than a legally designated status. Certain legal presumptions were discussed as fictions or as based on fictions,¹² while other contributors sharply distinguished presumptions from fictions.¹³ One contributor identified the “reasonable person” test in negligence as a fiction,¹⁴ and another contributor labeled the assumption within contract law of the equality of the contracting parties a fiction.¹⁵ As the notion of legal fiction expands, they appear everywhere in law, and the label begins to lose its analytical purchase.

Despite these potential problems, the collection holds together very well and the overall result is a rich and sophisticated exploration of the topic. The contributors shared a substantial overlap in their basic understanding, so differences in what they construed as legal fictions were useful and thought-provoking. Del Mar’s introductory essay helps hold the collection together by elaborating examples of legal fictions, the types of jobs they do, the different definitions utilized, and various ways fictions are evaluated by contributors.¹⁶

A few points of general agreement can be found across the essays (albeit not explicit in all). One common sentiment is that, though legal fictions might have a negative connotation as a form of deception, they have important functional benefits, particularly in facilitating legal change and in producing just or equitable outcomes. Another notion apparent in a number of the essays is that law is an artificial system distinct from the social world, possessing its own conceptual apparatuses and technical language, dictates of formality, rationality, and coherence, and modes of operation—and legal fictions arise at various points of contact to manage potential disjunctions between the legal system and society. Viewed in these terms, legal fictions are not truly falsehoods because they are not genuinely proffered by legal actors as assertions of fact (even when they take that form), and within law they are true in so far as they have legal consequences.¹⁷

What also comes through the essays is the implicit sense that legal fictions are likely to remain a part of law. Valid laws sometimes become obsolete, social values change, and general rules are over-and under-inclusive (applying to situations they should not, and failing to apply to situations they should). The demands of legal formality if always strictly adhered to under these circumstances would prove socially dysfunctional. To effectuate legal change or to achieve justice in a case, a judge can openly declare the existing legal rule will be set aside for compelling reasons—and judges sometimes do that. But this goes against the rule of law ideology, and is particularly problematic in connection with statutes.¹⁸ Thus, judges resort to legal fictions. A strong case can be made that to work properly a system of formal legality needs legal fictions, even if they are not officially embraced.

While the central focus in the collection is on fictions in law, fictions also play a prominent role in legal theory. Hans Kelsen’s Grundnorm is a fiction.¹⁹ Hercules is Ronald Dworkin’s fictional super judge. (P. 37.) Though none of the contributors mentioned it, Joseph Raz’s assertion that law claims moral authority is based on a fictional personification of law²⁰ (whether Raz recognizes this is a fiction is an open question). As is the case with law generally, fictions are used in legal theory to provide or impose coherence, uniformity, or systematicity that is otherwise lacking.

There is much to be learned from thinking about legal fictions, and this collection goes a long way toward plumbing these insights.

Moral Argument in Legal Disputes: Why So Many Are Mistaken

Jul 21, 2015 Barbara LevenbookAdd a Comment

In “hard” appellate cases, legal disputants sometimes offer moral considerations. Legal experts seem to back up claims about what the law is on a particular point with moral argumentation (whether or not explicitly posited legal material, such as a statute or a written constitutional provision, mentions moral considerations, one might add). One antipositivist argument credits the disputants with choosing epistemic arguments that reflect metaphysical truths, and concludes that the law depends at least in part on moral facts.

A familiar legal positivist response is that appearances are deceiving. The disputants are supporting a claim about what the law should be by moral argumentation, because the law at this point is indeterminate. Yet that’s not what many disputants would say, as their use the language of discovery suggests. To borrow an idea from Leiter, the positivist either concludes that the disputants are disingenuous (perhaps because the conventions of legal argumentation require them to appear to argue only about antecedent law) or that legal practitioners, legal scholars, and legal officials misunderstand what they are doing when they rely on moral argumentation. But how can so many experts be so mistaken? That’s what Plunkett and Sundell explain, and they do so plausibly, without denigrating the knowledge, honesty, or intelligence of the expert practitioners.

The authors do not challenge the appropriateness of moral language in a legal dispute. They challenge the assumption that the moral language is used to make a claim about a moral fact, and the assumption that the dispute is about what the law (antecedently) is. Both assumptions are incorrect, say Plunkett and Sundell; and thus, one cannot conclude that moral facts establish the law from the mere fact that moral language is used in legal disputes in hard cases.

Instead, moral language is used to make a proposal about what a moral term should mean in the context, where its meaning in this context and for these (legal) purposes is underdetermined. That is, a moral word or phrase is used metalinguistically. The proposal is communicated, not by the literal content of the language used, but by the pragmatic content. (For more on what the authors call “metalinguistic negotiations,” see the December 10, 2014 Jot by Connie Rosati.) The authors offer no examples of legal cases fitting this description, though they give examples of legal issues turning on determining what a (nonmoral) term means. Perhaps “fundamental fairness” (involved in Gideon v. Wainwright) would do.

Why do the disputants think otherwise? First, disputants in a metalinguistic negotiation generally do not recognize when they are communicating pragmatically, since they don’t usually have intuitions subtle enough to distinguish between literal and pragmatic ways of communicating. When the legal question seems to hinge on the way an expression (“use as a weapon,” “fundamental fairness”) is applied to the facts of a case, the disputants will think they are arguing over some first-level matter—e.g., whether the defendant’s action with the weapon was a use, whether fundamental fairness is violated by the absence of counsel for a defendant in a criminal action.

Disputants are instead arguing in the second case about whether the absence of counsel should be held to violate fundamental fairness (and so, due process, and so, the U.S. Constitution). Ordinarily, the reasons pertinent to that dispute are pertinent to the issue of what the expression “fundamental fairness” should mean in this context. This is the second reason. At this point, the difference between the projects becomes uninteresting to the participants. They are correctly aware that they are arguing about a constitutional right to counsel, but the difference between applying a determinate “fundamental fairness” and precisifying an indeterminate “fundamental fairness” doesn’t matter to them.

If a legal question turns on the application of some expression and that expression is indeterminate at a point, the legal positivist can claim the law is indeterminate. So the disputants’ debate isn’t, then, about what the law antecedently is, but what the law should be (on that point).

This account nicely explains why sometimes when the disputants are using moral language in a hard case, they erroneously think they are arguing about moral facts and what the law is. Unfortunately, the authors fail to address all the kinds of cases the antipositivist offers. The account nicely fits cases that the disputants agree turn on the application of a term (from statute, constitutional provision or something canonical in the common law) that is a moral term or whose application ordinarily requires moral reasoning (“unreasonable risk of harm”). But what shall the positivist say when this isn’t true and there is moral argumentation in a judge’s opinion—e.g., in Riggs v. Palmer? When only one of the disputants turns to moral language, the dispute doesn’t seem to be about determining an indeterminate moral expression. Perhaps the authors would call this, as they did in their article mentioned above, a “bedrock legal dispute,” and contend that the metalinguistic dispute is over the phrase “the law.” I’m not persuaded by that move, since there aren’t always explicit claims about “the law” in these conflicting judicial opinions.

To be fair, Plunkett and Sundell disavow the claim that all disputes in hard cases involve metalinguistic negotiations. Nonetheless, one can take from the authors’ general approach the idea of negotiation pragmatically expressed and say that in hard cases in which only some disputants use moral language there are (frequently?) negotiations pragmatically expressed about the identity, extent, and importance of concepts to fit settled law, where the answer has been hitherto indeterminate. This claim could be generalized to other hard cases not invoking moral language. The merits of an expanded approach are well worth investigating by those working on the nature of law and legal disagreement.

Roll Over, De Tocqueville

Jun 19, 2015 W.A. EdmundsonAdd a Comment

“Money is the mother’s milk of politics,” said California pol Jesse Unruh, way back in the 1960s. Benjamin Franklin, in the 1790s, could not have said it more memorably; but wouldn’t it shock us if it had been Franklin, and not Unruh (or Karl Marx) who first said it? The certainty of death and taxes is a hard lesson, but it doesn’t prepare us for the bitter thought that politics is helpless before the power of money.

Students of American democracy have divided on the point. Martin Gilens and Benjamin I. Page assign the principal theories of American politics to four schools: Majoritarian Electoral Democracy, Economic-elite Domination, Majoritarian Pluralism, and Biased Pluralism. Majoritarian Electoral Democracy holds that policy outcomes are determined largely by the views of average citizens. Economic-elite Domination holds that policy outcomes are largely determined by the views of the wealthiest citizens. The two other types of theory focus not on individual voters, but on interest groups. Majoritarian pluralism is the view that policy outcomes are mainly responsive to pressures from mass-based interest groups. Biased pluralism maintains that pressure from business-orientated interest groups is what mainly determines state policy.

Each of these types makes a prediction, and thus is empirically testable, so Gilens and Page posed the natural question: how do they compare as predictive theories of policy outcomes? This is a question that is much easier to formulate than it is to answer. No attempt had ever been made to answer it within a unified statistical framework. So, Gilens and Page and their assistants assembled “a unique data set that includes measures of the key variables for 1,779 policy issues” (P. 564), and performed a series of multivariate analyses. “Who governs? Who really rules?”—the authors report finding that

economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass- based interest groups have little or no independent influence. The results provide substantial support for theories of Economic-Elite Domination and for theories of Biased Pluralism, but not for theories of Majoritarian Electoral Democracy or Majoritarian Pluralism. (P. 564.)

The authors are careful to point out that elite opinion and mass opinion often coincide, and that it could look as if the average citizen is getting her way anyway. But their analysis, they say, shows that to think so would be to mistake “democracy by coincidence” (P. 573) for the real deal. In fact, “the issues about which economic elites and ordinary citizens disagree reflect important matters, including many aspects of trade restrictions, tax policy, corporate regulation, abortion, and school prayer, so that the resulting political losses by ordinary citizens are not trivial.” (P. 573.) We might comfort ourselves by the thought that, as to abortion and school prayer, it might be better if the elites made the call. But that is small comfort if Gilens and Page have indeed discovered that

reality is best captured by mixed theories in which both individual economic elites and organized interest groups (including corporations, largely owned and controlled by wealthy elites) play a substantial part in affecting public policy, but the general public has little or no independent influence. (P. 572.)

Their findings are even more troubling insofar as they merely depict the “first face” of politics, that is, outcomes of overt policy contests. They can only hint at the configuration of the “second face” of political power, i.e., governmental agenda setting; and the “third face,” the shaping of public opinion and preference (P. 576.)

So what? Gilens and Page admit that “Americans do enjoy many features central to democratic governance, such as regular elections, freedom of speech and association, and a widespread (if still contested) franchise.” (P. 577.) These political and civil liberties are formally equal, at least in large part. But Gilens and Page confirm that what philosopher John Rawls called the “fair value of the political liberties”—a roughly equal chance had by rich and poor alike to affect political outcomes—is demonstrably absent in the United States. As Anatole France wrote, both the rich and the poor are equally forbidden (or permitted, as the case may be) to sleep under bridges. But justice requires more than this. As to the specifically political liberties, merely formal equality is not enough—or so Rawls believed.

Insisting on the fair value of political liberty has consequences. The type of regime Rawls called “welfare state capitalism” guarantees formally equal political liberty but is insouciant about its fair value, and for this reason alone (though there are others) he concluded that a regime of this type cannot realize justice. Some political philosophers have recently contested Rawls’s assumption that the wealthy invariably tend to dominate politics. It cannot, they say, be assumed as a matter of common sense, or as a settled finding of social science, that the wealthy—severally or in combination—have this advantage. That they do is unlikely, given collective action problems; and whether they do or do not is anyway a complicated empirical question, which means that Rawls was wrong to condemn welfare-state capitalism as inherently unjust. If there is a problem, they argue, it is not one that the legislative branch of a welfare-state capitalist regime cannot sort out. Such a regime might, for example, enact laws to insulate politics from money, if the worry about money in politics (beyond quid-pro-quo bribery) is not merely valetudinarian. Valetudinarian or not, the US Supreme Court insists that ensuring the fair value of political liberty is not even a permissible Congressional goal, much less a “constitutional essential.”

Gilens and Page’s paper has been described as “the Piketty of politics”—referring to Thomas Piketty’s Capital in the Twenty-First Century. This is apt, in that it focusses the discussion of inequality on its specifically political effects. Whether Gilens and Page, or the Piketty boom, will have a specifically political effect in the United States is a separate question. But the influence that Gilens and Page can be expected to have is inversely related to the correctness of their findings; and Rawls himself, I am sorry to note, has yet to be cited in any opinion of the Court, dissent, or concurrence. As Rawls wrote:

Historically one of the main defects of constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained . . . for when parties and elections are financed . . . by private contributions, the political forum is so constrained by the wishes of the dominant interests that the basic measures needed to establish just constitutional rule are seldom properly presented. (A Theory of Justice 198-99)

“Are seldom”—after the line of cases from Buckley v Valeo to McCutcheon—has turned into “shall never.”