I. The Common Law of Agency in the Eighteenth Century

To understand why the Necessary and Proper Clause does not authorize the individual mandate, one must understand the Clause’s origins in agency law. Those origins, as illuminated in pioneering research by Robert G. Natelson,⁶ demonstrate that the first question to ask is not whether the mandate is useful  to the accomplishment of some permissible governmental end .Under the original meaning of “necessary and proper,” the only implied power which can qualify as “necessary” is a power which is “incidental”—in other words, a power inferior or subordinate to an enumerated principal power.

The law of agency was central to legal and economic life in the Founding era. Ordinary citizens often employed agents such as managers and brokers in their business affairs, and citizens themselves frequently acted as agents, such as executors or guardians. Accordingly, the general contours of agency law were familiar to a wide range of eighteenth-century Americans.

The bedrock obligation of the eighteenth-century agent was to act only within granted authority. Unless the agency instrument clearly specified otherwise, the background assumption was that grants of authority carried with them certain incidental or implied powers for executing the express powers. To determine the scope of an agent’s implied powers, the law employed the doctrine of principals and incidents. To be an incident, “an interest had to be less important or less valuable than its principal.”⁷ For example, a power to manage lands might carry as an incident a power to make short-term leases but would not carry as an incident a power to sell a portion of the property.⁸ The power to sell was independent of, or as “worthy” as, the power to manage.

Being dependent upon or inferior to a principal right or power was a precondition to being an incident but was not itself sufficient. An additional touchstone for determining the existence of incidents, or incidental powers, was necessity.

The term “necessity,” in this context, had a conventional and well-understood meaning in eighteenth-century agency law. There were three separate ways in which an incidental, inferior power could qualify as “necessary.” First, a right or power was “necessary” if it was indispensable to the use of the principal. Second, a right or power was necessary if its absence would seriously impair the value of the principal. Third, a right or power was necessary if it customarily accompanied the principal. The doctrine of necessity made good sense, as these three circumstances reasonably approximated the situations in which parties would likely have intended the incidental right or power to accompany the principal grant.

By the eighteenth century, there was a wide array of adjectives available to drafters of agency instruments to describe an agent’s incidental power: “necessary,” “necessary or useful,” “necessary and proper,” and so on.⁹ The use of the words “necessary and proper” was, grammatically, the most restrictive formula readily available to a drafter in the late eighteenth century because it imposed the separate and simultaneous requirements of necessity and propriety. In this context, necessity described the requisite attachment of the incidental power to its principal end, while propriety described conformance with other fiduciary norms, such as the duty of impartiality, the duty of good faith, and the primary duty to stay within the scope of granted authority.

 
II. The Necessary and Proper Clause: Its Origins and Early Years

This common law background of the law of agency informed—and indeed drove—the drafting and ratification of the Necessary and Proper Clause. The Clause was drafted by a five-person Committee of Detail; four members (Oliver Ellsworth, Edmund Randolph, John Rutledge, and James Wilson) were private-law lawyers and the fifth (Nathaniel Gorham) was a businessman whose experience included serving as a business agent. An early draft from the Committee of Detail, in Randolph’s handwriting, included a supremacy clause that expressly invoked the doctrine of principals and incidents as a tool of judicial interpretation.¹⁰ After several more drafts, the final result was to attach a clause to Article I, Section 8 specifying that “Congress shall have the Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the . . . Powers vested by this Constitution in the Government of the United States . . . .”¹¹ This language was approved by both the Committee and the Convention without significant controversy.

It is easy to see how a Convention filled with lawyers and citizens who dealt regularly with agency law would create the Necessary and Proper Clause with little fanfare. The provision would have been recognizable to anyone familiar with agency law as a clause incorporating the principle of incidental powers and the full range of fiduciary norms limiting those powers. Importantly, there is nothing in the language, origin, or purpose of the Necessary and Proper Clause suggesting that its embodiment of the incidental powers principle was intended to be broader than the common law baseline of incidents. Quite to the contrary, the choice of the relatively restrictive “necessary and proper” language indicates that the common law represents the upper rather than the lower boundary of the range of incidental powers conferred by the Clause.

The analysis above explains, and justifies, the Federalists’ repeated claims that the Necessary and Proper Clause added no new powers to the federal government.¹² It also helps to explain the Supreme Court’s most important decision construing the Necessary and Proper Clause—McCulloch v. Maryland.¹³ In McCulloch, the Chief Justice Marshall emphasized that the power to incorporate a national bank would only be a “necessary and proper” exercise of Congress’s enumerated powers if it was “a means not less usual, not of higher dignity,” than the principal powers set forth in Article I.¹⁴ Chief Justice Marshall concluded that since corporations are always a means to an end rather than an end in themselves, the power to incorporate does not have the high dignity or superior status of the powers enumerated in Article I, Section 8; therefore, incorporation can be an incident. If there were any doubt about the criteria for incidence employed in McCulloch, Marshall himself resolved it later the same year, when explaining McCulloch to the general public. He specifically affirmed, as a test of incidence, the requirement that an incident be less “worthy” than the enumerated powers it supported.¹⁵ The fact that incorporation was lesser to the commerce or borrowing power was, as Chief Justice Marshall recognized, a threshold requirement before inquiry could proceed on questions of necessity and propriety.

 
III. The Individual Mandate Is Not an Incident

The Necessary and Proper Clause grants Congress incidental powers for executing the principal powers granted elsewhere in the Constitution. As McCulloch illustrates, for a power to fall under the Necessary and Proper Clause, it must truly be incidental. However, the power to compel the purchase of a product from another private party is not a “less worthy” or less substantial power than the power to regulate commerce—just as the power to sell real estate is not “less worthy” or less substantial than the power to manage the property. The power to compel involuntary commerce will not follow, as a mere incident, from the principal power to regulate voluntary interstate commerce. Accordingly, it is unnecessary to analyze whether the individual mandate is an important or customary (“necessary”) and fiduciarily sound (“proper”) means for implementing federal powers. Such analysis is only required when one is dealing with an incidental power. (Nonetheless, in the Yale Law Journal Online essay on which this op-ed is based, we consider whether the individual mandate would meet the additional tests of necessity and propriety, and we conclude that it would not.¹⁶

The power to compel the purchase of a commercial product is fundamentally different than the power to create a corporation. It is an extraordinary power of independent significance, or “high[] dignity,” that would be enumerated as a principal power if it were granted at all to the federal government. If the point is not obvious, one need only compare it to the one limited circumstance in which the Necessary and Proper Clause does, in fact, authorize Congress to force people to engage in “commercial” transactions: exercises of the power of eminent domain.

During the Founding era—and for nearly a century afterwards—there was substantial doubt whether the federal government had an independent power of eminent domain at all. The power to condemn property is a very substantial, significant power. It is certainly plausible that eminent domain power is too substantial and significant to be considered an incidental rather than principal power. When, starting in 1876, the Court finally did recognize a federal power of eminent domain, it emphasized that eminent domain has always been a traditional aspect of sovereign power.¹⁷ Indeed, one might fairly say that eminent domain has been an incident of sovereign power by custom.

While post-1876 cases affirm that Congress has the power to compel commercial transactions with the federal government, it is still a giant leap to conclude that Congress has the power to compel commercial transactions among private parties. Indeed, if there was an open question for a century whether the federal government had a power of eminent domain, there cannot plausibly be an open question whether the federal government has a general incidental power to force purchases of commercial products by one private citizen from another. Eminent domain represents the outer reaches of the power to coerce transactions under the Necessary and Proper Clause—and the Clause reaches that far only because of the unique role of eminent domain as a customary incident of sovereignty.

More recent cases no longer use the language of principals and incidents to describe analysis under the Necessary and Proper Clause, but their holdings are broadly consistent with that framework. For example, in United States v. Comstock, Justice Breyer—writing for the majority—points to five “considerations” in determining whether the law in question fell within the Necessary and Proper Clause’s ambit: “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment . . . , (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.”¹⁸ In other words: (1) What does the meaning of the words of the Clause indicate? (2) Is the statute a long-understood traditional incident of an enumerated power? (3) Is the statute a reasoned exercise of public fiduciary authority? (4) Does the statute adhere to the state-federal balance created by Article I’s system of enumerated, limited powers? (5) Is the statute of the magnitude of an incidental power, or of a greater power? Whether Justice Breyer had agency principles in mind when he wrote the Comstock opinion, the Court’s holding—and its modern case law more generally—are consistent with our originalist analysis of the Necessary and Proper Clause.

 
Conclusion

In sum, the individual mandate of the PPACA cannot be justified under the Necessary and Proper Clause. The original meaning of the Clause shows that it can, at most, be used to recognize an incidental power—that is, a power which is “less worthy” than the expressly granted, enumerated powers that it purportedly implements. The power to compel a private individual to engage in commerce with a private corporation is not lesser than the power to regulate voluntary commerce; it is a far greater power. Chief Justice Marshall’s analysis in McCulloch v. Maryland confirms that the Necessary and Proper Clause includes only incidental powers; if the power is not incidental, then the constitutional inquiry ends there, and it does not matter whether the asserted power may be useful. Again, if the individual mandate is constitutional, it is not by virtue of the Necessary and Proper Clause.

Acknowledgments:

Copyright © 2012 The Yale Law Journal Company, Inc.

Gary Lawson is Professor of Law and Michaels Faculty Research Scholar at Boston University School of Law. David B. Kopel is Research Director at the Independence Institute, an Associate Policy Analyst at Cato Institute, and an Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law.

This Legal Workshop article is based on Gary Lawson & David B. Kopel, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale L.J. Online 267 (2011), http://yalelawjournal.org/2011/11/08/lawson&kopel.html. That article was written as a reply to Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 Yale L.J. Online 1 (2011), http://yalelawjournal.org/2011/04/26/koppelman.html. For subsequent installments in this series, see Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, 121 Yale L.J. Online 515 (forthcoming March 2012); and Gary Lawson & David B. Kopel, Bad News for John Marshall, 121 Yale L.J. Online 529 (forthcoming March 2012).

I’m not talking about what happens if the pregnancy ultimately produces a child. I’m talking about the pregnancy itself. Under current law, if the woman terminates, the man owes her nothing. If she takes the pregnancy to term, then only after he’s deemed the father will the man be required to reimburse her for prenatal and birthing expenses—and then only because it is considered part of his child support obligations. He’ll have no responsibility to share in other costs of pregnancy deemed “personal” to the woman—things like maternity clothes, birthing classes, or lost wages. Some lovers do the right thing; others do not, and the law gives them a free pass. In short, until and unless paternity has been established, a pregnant woman and the man with whom she conceives are legal strangers.

Preglimony is my dream for a different world, a world that recognizes that unmarried lovers who conceive are not complete strangers. They’re not spouses either. They’re something in between. Ideally the law should recognize them as such by replacing the current lovers-as-strangers paradigm with a relational default. This new default would impose certain baseline responsibilities on unmarried lovers who conceive regardless of the outcome of the pregnancy, including “preglimony”—a legal framework defining a man’s duty to help support his pregnant lover.

Developing and implementing this new framework will take time and further study, but there is something simpler we can do more quickly. As a first step towards recognizing and integrating the relational paradigm we can reward and encourage preglimony through the tax code. Current law is silent on the proper tax treatment of pregnancy-related payments, but under prevailing principles they are likely to be treated as gifts and thus be neither deductible to the payor nor includible by the recipient. In other words, preglimony is a tax nothing. By contrast, alimony payments between former spouses are deductible to the payor and includible to the recipient. This means that former spouses whose incomes diverge can shift high-bracket income to a lower bracket, producing a tax benefit.

Preglimony is more like alimony than a transfer between strangers, and it should be treated accordingly. Not only does extending tax benefits to pregnancy-related transfers make sense under current principles, doing so will also reward and encourage men who are prepared to support their pregnant lovers. Preglimony is a new word; it is not a new practice. It’s time the law noticed.

*                *                *

To visualize the proposal, consider a man whose taxable income is $100,000 and who transfers $20,000 to his pregnant lover, whose taxable income is $60,000. Assume also, for simplicity, a rate schedule with only two brackets. Taxable income that does not exceed $80,000 is taxed at a ten percent rate, while taxable income above $80,000 is taxed at a thirty-five percent rate.

In general, transfers can be treated in one of four ways. They might:

(a) be neither includible by the recipient nor deductible to the payor (as when an individual gives a gift to another individual);

(b) result in taxable income to the recipient and a deduction to the payor (as when an employer compensates an employee or when a former spouse pays alimony);

(c) result in taxable income to the recipient without a corresponding deduction allowance to the payor (as when an individual compensates a housekeeper, gardener, or other purveyor of personal services); or

(d) produce no taxable income to the recipient and be deductible to the payor (as when an individual makes a charitable contribution).

Currently, preglimony is likely to be nondeductible to the payor, and excludible to the recipient as in scenario (a). My proposal would bring the treatment of preglimony in line with the current treatment of alimony, producing an income-shifting benefit.

Acknowledgments:

Copyright © 2012 Stanford Law Review.

About the Author: Shari Motro is a Professor of Law at the University of Richmond.

Citation: Shari Motro, Preglimony, LEGAL WORKSHOP, Feb. 1, 2012, http://legalworkshop.org/2012/02/01/preglimony.

Based on: Shari Motro, Preglimony, 63 STAN. L. REV. 647 (2011).

Graphics by 13pt.

Posner’s theory implies that the corporate group is like a sturdy ocean freighter, neatly divided into watertight compartments that prevent a failure in one division from flooding the cargo stowed elsewhere. In reality, however, the insides of most corporate groups are not nearly so orderly. Instead of following clean functional lines, their bulkheads are often jumbled and in a state of disrepair. And, rather than being watertight, the partitions leak—indeed, they are rigged to leak—in rough financial seas.

The seeming saboteurs are the group’s managers, who compromise the cargo holds by causing the entities in the group to guarantee each other’s major outside debts. Each such guarantee gives the lender who receives it the right, if its own borrower entity defaults, to assert a claim against the guarantor entity and, if the guarantor is bankrupt, to recover a portion of the guarantor’s assets at the expense of the guarantor’s own creditors. The consequence is that the legal boundary between the borrower and the guarantor no longer compartmentalizes risk. The creditors of the guarantor are exposed not only to the risk that the guarantor will fail but also to the risk that the borrower will. And in the typical corporate group, the original borrower issues a reciprocal guarantee to the guarantor’s own major lender, thereby compromising the liability barrier in the reverse direction as well.

This Article offers a theory of the corporate group that can explain both of its salient features: the swarm of subsidiaries that partitions the group’s assets and the web of guarantees that pierces the asset partitions on behalf of select lenders. The theory argues that the perforated internal structure of the corporate group reflects a type of shareholder opportunism termed correlation-seeking. When a corporation engages in correlation-seeking, it intentionally incurs contingent liabilities that are especially likely to come due when the corporation is insolvent.4 Corporate groups are able to engage in correlation-seeking because the entities that constitute such groups tend to thrive or fail in unison. This commonality of fate means that intragroup guarantees, at the time they are issued, transfer value from the group’s nonguaranteed creditors to its shareholders. As long as the group stays solvent, the guarantees benefit the shareholders by lowering the interest rates on the guaranteed loans. And if the group falls insolvent and defaults on its loans, the triggering of the guarantees makes no difference to the shareholders, whose equity stakes in the guarantor entities are wiped out anyway. Instead, the guarantees dilute the bankruptcy recoveries of the group’s nonguaranteed creditors.

I.  Social Costs of Correlation-Seeking

A value transfer away from a corporate group’s creditors confers a benefit on the group’s shareholders that has nothing to do with wealth creation. The transfer acts like a subsidy, stimulating demand for the guarantee and its related elements beyond efficient levels. Overuse of the guarantee contract itself is socially costly because intragroup guarantees undercut the informational benefits to creditors, first described by Richard Posner, that arise from asset partitioning.5 Each guarantee increases the number of group members that the guarantor’s creditors must appraise and monitor to get an accurate sense of the risk they bear. Creditors who anticipate this increase in their information costs will charge higher interest rates. But the group’s managers will issue guarantees anyway as long as the increase in borrowing costs attributable to the forgone efficiencies is smaller than the decrease in interest costs on the guaranteed loans attributable to the value transfers.

Overuse of the second element of the intragroup guarantee—the underlying loan—occurs because the expected wealth transfer artificially reduces the firm’s borrowing costs. Intragroup guarantees with high internal correlations reduce interest rates on the guaranteed loans primarily by pledging creditor wealth rather than shareholder wealth. Because borrowing seems cheaper, firms will engage in more of it, producing higher debt–equity ratios and hence greater risk of financial distress.6

Finally, correlation-seeking via the intragroup guarantee encourages overuse of the corporate form because it requires a corporation (or other limited liability entity) to introduce a liability partition between assets whose changes in value are correlated. The resultant entity overgrowth undermines appraisal and monitoring efficiencies by breaking down the relationship between the subsidiary structure and the real, functional distinctions among the firm’s assets.

II.  Using Fraudulent Transfer Law to Streamline Corporate Groups

The social costs of correlation-seeking become evident when a corporate group fails and a bankruptcy court is tasked with sorting out its internal affairs. Formally, the court is supposed to calculate each creditor’s recovery based on the financial status of the creditor’s particular debtor entity. But the combination of entity overgrowth and apathetic internal recordkeeping often makes this task infeasible. Bankruptcy judges therefore resort to the doctrine of substantive consolidation, a kind of Gordian knot solution that cuts through the partitions between subsidiaries and pays out all creditors based on the value of the group’s combined assets. Commentators and appellate courts worry that this doctrine gives bankruptcy judges too much power to abrogate contracts and override the corporate form, and they admonish them to use it sparingly.7 Yet the judges often have little practical choice in the matter, as the administrative costs of untangling the typical group instead of collapsing it would consume much of its remaining value.

Unlike substantive consolidation, fraudulent transfer law provides an equitable remedy that could eliminate the value transfers generated by intragroup guarantees without collapsing a group’s subsidiary structure. Fraudulent transfer statutes enable a court to set aside a claim against a debtor—including a claim on a guarantee—if the claim results from a contract that when created was likely to harm creditors. If bankruptcy courts used this remedy to police overuse of intragroup guarantees, then creditors could cut back on their own monitoring efforts, and the cost of credit would fall. In addition, firms would be forced to streamline their subsidiary structures, as they could no longer use intragroup guarantees to insulate their most sophisticated lenders from the consequences of artificial asset boundaries and slipshod accounting. Firms would be more likely to form their subsidiaries along functional lines and would arrive in bankruptcy with internal boundaries that were fewer in number and easier for courts to honor.

Unfortunately, the special fraudulent transfer doctrines that courts have developed for intragroup guarantees bear no relationship to the actual economics of the arrangement. Those doctrines assume that the fee a lender pays in exchange for a guarantee—conventionally known as the “premium”—will be large enough to offset the guarantee’s expected burden on the guarantor’s general creditors. As a result, the doctrines focus on whether the premium, which normally is paid to the borrower in the form of an interest-rate discount on the guaranteed loan,8 was passed on to the guarantor.9 If it was, perhaps because the guarantor and borrower were financially or operationally interlinked, then courts deem the guarantee to be enforceable in full.

The problem with this approach is that the premium paid for an intragroup guarantee will be large enough to neutralize the expected burden on the guarantor’s creditors only in one special case: when the insolvency risks of the guarantor and borrower are uncorrelated. If instead their fortunes are positively correlated, then the guarantee will reduce the expected recoveries of the guarantor’s creditors even if the full premium is paid directly to the guarantor. Moreover, the fates of a borrower and a guarantor will be correlated whenever the two entities are financially or operationally interconnected. In this way, current doctrine causes courts to uphold precisely those intragroup guarantees that are most likely to transfer value from creditors to shareholders.

Courts could both simplify fraudulent transfer law and do a much better job preventing overuse of intragroup guarantees if they decided challenges to such arrangements based on the following question: Was a strong positive correlation between the fortunes of the borrower and the guarantor evident when the guarantee was issued? If the answer is yes, the court can be sure that the cost to the borrower of the guaranteed loan was artificially low, as the loan was subsidized by a value transfer from creditors to shareholders. A strong positive correlation would be easy to establish, as it will exist whenever a guarantor and borrower are financially tied or produce complementary outputs. And a correlation-based doctrine for intragroup guarantees could be developed that is fully consistent with fraudulent transfer statutes as they are now written.

Acknowledgments:

Copyright © 2012 University of Chicago Law Review.

Richard Squire is an Associate Professor at Fordham University School of Law.

The seismic increase in caseload that federal appellate courts have endured over the past sixty years is by now well documented. In 1950, the average number of annual filings per active federal appellate judge was just over seventy²—today that figure is 335.³ To cope, judges have adopted a wide array of case-management techniques. Specifically, all of the circuits direct some portion of their civil cases into a mediation program, with the aim of settling—or at least reducing the number of claims at issue in—some of the cases. Of the cases that do not settle, the courts route a sizeable percentage to a nonargument calendar or panel, which means that these cases not only are decided without oral argument but also are reviewed primarily by staff attorneys to save judicial time. Finally, the courts have taken to publishing opinions in a low percentage of cases, disposing of the rest by unpublished opinion or order—again as a way to save court resources. In short, the courts of appeals have developed several key ways of limiting traditional appellate review in some cases to be able to review all of the cases that come before them.

Yet what is critical to appreciate—and what is often overlooked in the limited literature that exists on case management—is that the circuit courts have all developed their own unique responses to what has been dubbed the “caseload crisis.” Between March 2010 and June 2011, I conducted a series of interviews with judges, clerks of court, chief circuit mediators, directors of staff attorney offices, and supervisory staff attorneys to gather information about the case-management practices of the D.C., First, Second, Third, and Fourth Circuit Courts of Appeals. This study, in conjunction with data provided by the Administrative Office of the U.S. Courts, reveals the great extent to which case-management practices vary among the circuits.

Beginning with settlement programs, significant differences exist in the number and kind of cases that are routed into mediation. Specifically, some of the circuits, including the First, Second, and Fourth, automatically send nearly all of their civil appeals to mediation, whereas in other circuits, including the D.C. and Third, only a subset of appeals are selected for mediation. With respect to the kinds of cases that go to mediation, most of the circuits preclude pro se litigants—who bring a sizeable number of appeals—from participating in their settlement programs, whereas the Third Circuit specifically allows pro se appeals to go through mediation.

Turning to screening, key differences exist in (1) how cases are screened for oral argument, (2) who makes that determination, and (3) the percentage of cases that are initially not placed on the argument calendar. Some of the circuits, including the D.C., First, and Fourth, have staff attorneys review cases to make an initial determination about which ones will go to oral argument and which will be decided solely on the briefs. By contrast, in the Second Circuit, only immigration cases are directed to nonargument; the remainder of cases are placed on the argument calendar. Similarly, in the Third Circuit, certain categories of cases, including pro se and immigration appeals, are sent to special nonargument panels; the remainder of appeals are placed on an argument calendar, and the deciding panel determines which cases will ultimately be heard. Based in part on these differences in how and who screens the cases, the circuits send dramatically different percentages of their dockets to nonargument panels or onto a nonargument track. These figures vary from approximately 45 percent in the Second Circuit to nearly 88 percent in the Fourth Circuit.

As for oral argument, the circuits have substantial differences in the percentage of cases that actually receive oral argument and how that argument is structured. Of cases decided on the merits in Fiscal Year 2010, the D.C. Circuit held argument in 44.4 percent, the First Circuit in 28.9 percent, the Second Circuit in 37.7 percent, the Third Circuit in 13.9 percent, and the Fourth Circuit in 13.1 percent.⁴ The time allotted for argument varied considerably as well—from as low as five minutes per side in many cases in the Second Circuit, to at least fifteen or twenty minutes per side in all cases in the Fourth Circuit.

Finally, the circuits have divergent figures when it comes to the percentage of opinions they do not publish. Of cases decided on the merits in Fiscal Year 2010, the D.C. Circuit decided 62.3 percent by unpublished opinion or order, the First Circuit 65.1 percent, the Second Circuit 88.3 percent, the Third Circuit 89.8 percent, and the Fourth Circuit 93.0 percent.⁵ In short, from decisions about which cases to route to mediation to decisions about what percentage of cases to dispose of through unpublished opinions or orders, the circuit courts have dramatically different ways of managing their caseloads.

After noting these differences in how courts operate, the natural question to ask is why they have arisen. That is, why do different circuits have different ways of selecting cases for oral argument? Or why does one circuit publish opinions in a substantially higher percentage of cases than another? The answers lie in part in the different dockets each circuit faces and the different priorities each circuit possesses.

Beginning with dockets, the circuits plainly face different workloads—both in terms of size and in terms of kinds of cases. The D.C. Circuit received 1,178 filings in Fiscal Year 2010 or 131 per active judge.⁶ By contrast, the Second Circuit received over four times as many filings in the same period—5,371 or 537 per active judge.⁷ Circuits with a lower volume of cases have the time to, say, hold oral argument and publish opinions in a higher percentage of cases than circuits with a higher volume of cases. Furthermore, the circuits receive different types of cases, which affects the kinds of time-saving mechanisms that make sense for each court. For example, because the Second Circuit receives well over one thousand immigration cases per year⁸—a sizeable portion of its docket—it can create a special nonargument calendar for these cases alone, a strategy that would not be practical for a court such as the D.C. Circuit, which receives only a handful of such cases per year.

Although differences in dockets account for many of the differences in the case-management practices of the circuits, they do not account for all of them. What emerged during my qualitative study of the courts is the fact that the judges of each circuit have different collective views about which components of appellate decisionmaking should be prioritized. Specifically, the Second Circuit has long valued oral argument, which is why that court offers argument to most litigants, outside of immigration appeals and appeals brought by incarcerated litigants. By contrast, the Fourth Circuit prizes efficiency, so that circuit tries to ensure that it has one of the lowest median disposition times among all of the courts. And the Third Circuit places significant weight on judges, not staff attorneys, screening cases for oral argument. These are just a few examples of the ways in which circuits have developed their own values when it comes to facets of the decisionmaking process, values that in turn affect the case-management practices these circuits adopt.

The final important question in this analysis is whether the different circuit practices can be justified. That is, are there sufficiently strong reasons to support the existence of disuniformity in how the federal courts of appeals manage their caseloads?

The brief answer is both yes and perhaps. Beginning with the affirmative response, the dramatic differences between the dockets of the circuits means that a uniform approach to managing cases simply would not be practicable. A nonargument calendar for immigration cases seems reasonable in the Second Circuit, which saw well over a thousand such cases in Fiscal Year 2010;⁹ it quickly seems unreasonable in the D.C. Circuit, which only received one such appeal in the same period.¹⁰ Given that each circuit has different case-management needs—based on the number and types of cases in its docket—at least some disuniformity can be justified.

What is less clear is whether differences in case-management practices that exist not simply because of differences in dockets but because of differences in circuit priorities can be justified. That is, if one circuit decides to hold oral argument in a smaller percentage of cases than another not because it has a higher number of cases to contend with but because its judges simply value oral argument less, can this difference in practice be justified? This is a complex and important question that turns on the reasons why the circuits have developed such different priorities.

At base, a circuit’s priorities come from underlying values. That is, a circuit that prioritizes oral argument does so because it truly values something deeper—say, perceived legitimacy or collegiality among its judges. What is relevant, then, is whether the circuits hold the same underlying values. If, ultimately, the circuits possess the same underlying values but diverge when it comes to which case-management practices best effectuate those values—say, whether oral argument or published opinions best effectuates perceived legitimacy—different case-management practices may be justifiable. The idea underlying the justification would be that circuits, just like states, should be able to serve as laboratories of experimentation—in this case, to see which practices do in fact best effectuate certain values. If, however, the circuits have different priorities because they actually hold different underlying values, or perhaps the same underlying values but in different measure, then differences in case management become less defensible. The idea here is that inasmuch as the foundation of the federal justice system is that courts are animated by the same basic principles, deep value disuniformity is highly problematic. Because information about the values held by the circuits is critical for evaluating the case-management practices of the circuits, circuit values is a topic deserving of greater research and consideration in the future.

Ultimately, how courts decide to manage their workload is a critical subject—one that affects the quality of justice litigants receive from these courts. Therefore, understanding how the individual courts operate, appreciating their differences, and assessing why those differences occur is necessary. Moving forward, legal scholars should more fully document and analyze the workings and values of the courts. The courts themselves can and should assist with these ends by making their practices more transparent and sharing more information about how they manage their caseloads with one another. Through careful study and analysis of court practice, we can hope to maintain, and even improve, the high quality of our justice system.

Acknowledgments:

Copyright © 2011 Duke Law Journal

Marin K. Levy is a Lecturing Fellow at the Duke University School of Law.

This Legal Workshop Editorial is based on the following article: Marin K. Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in The Circuit Courts, 61 DUKE L.J. 315 (2011).

We are told that the little creature called the ermine, is so acutely sensitive as to its own cleanliness, that it becomes paralyzed and powerless at the slightest touch of defilement upon its snow-white fur. . . . And a like sensibility should belong to him who comes to exercise the august functions of a judge . . . . But when once this great office becomes corrupted, when its judgments come to reflect the passions or the interest of the magistrate rather than the mandates of the law, the courts have ceased to be the conservators of the common weal, and the law itself is debauched into a prostrate and nerveless mockery.

Although reference to the judicial ermine has fallen from common usage, the assumption it embodies—that when they don their robes, independent judges set aside their passions, prejudices and interests and follow the law—remains integral to the legal establishment’s traditional conception of the role that the judiciary plays in American government. That assumption has come under sustained attack by scholars and policymakers, leading to the question of whether there is enough truth to this “ermine myth” to make it one still worth defending, or whether the time has come to demythologize our understanding of what judges do and acknowledge that, truth be told, the ermine is just a glorified weasel. Put another way, can the rule of law survive judicial politics?

In the academic realm, law professors long operated on the assumption that judges decide cases by bracketing out extraneous influences and following the relevant facts and law. Doctrinal scholarship, which all but monopolized the pages of law reviews for generations, proceeds from the premise that legal doctrine matters above all else when it comes to understanding why judges do what they do—that the decisions judges make must be understood and critiqued with reference to applicable law. Meanwhile, many political scientists long posited that judges decide cases by following their ideological predilections. In light of findings generated by studies of Supreme Court decision-making, these scholars relegated the so-called “legal model” to the status of a total fabrication. More recently, however, a cadre of interdisciplinary scholars has bridged this divide with a flurry of empirical projects demonstrating that judicial decision-making is subject to a complex array of influences, including law, ideology, and others. The net effect of these recent interdisciplinary projects is to demonstrate, rather convincingly, that dichotomous arguments to the effect that judges categorically disregard the law and follow their policy preferences (or something else), or categorically disregard their policy preferences (and everything else) to follow the law, have been debunked.

In stark contrast to this emerging interdisciplinary, scholarly consensus on a more eclectic, nuanced, positive theory of judicial decision-making is the public policy debate over judicial independence, accountability, and selection, where the underlying assumptions about what judges do remain simplistic and stubbornly binary. The legal establishment maintains that judges who are buffered from political pressure will abide by their oaths of office and follow the law—hence the need for an independent judiciary that is insulated from popular and political control. Court critics posit that when left to their own devices, judges disregard the law and decide cases in a manner consistent with their policy preferences, strategic objectives, or personal feelings—hence the need for an accountable judiciary that is subject to popular and political control.

Why has the public policy debate remained pugnaciously dichotomous while the scholarly debate has moved toward eclecticism and consensus? By their nature, public policy debates aim at capturing the hearts and minds of the general public. Survey data reveal that the public thinks judges are influenced by legal and extralegal factors—meaning that the public’s impressions of what influences judicial decision-making is consistent with the findings of recent social science research. Surveys further show that the public retains considerable confidence in its judges. Taken together, these results imply that it may be foolish and unnecessary for the legal establishment to cultivate the pretense that judges are influenced by facts and law alone. Those same surveys, however, show that the ermine myth continues to hold sway, as sizable majorities believe that judges should be influenced only by the facts and law, and disapprove of the extralegal influences that they think occur. For the legal establishment openly to concede the inevitability of the extralegal influences that inform judicial discretion would be to undermine the myth and with it, potentially, the public’s confidence in the courts.

What next? One possibility is that the dichotomous public policy debate will persist into the foreseeable future without further consequence: judges will continue to say that they are slaves to the rule of law; critics will attack “activist” judges as symptomatic of a judiciary run amok; and the public will look askance at judges who deviate, but retain its faith in the ermine myth. Without disputing the impressive force of inertia, a series of developments, years in the making, renders this assessment unlikely. The latest campaign against “liberal judicial activism”; media coverage of an ideologically divided Supreme Court; partisan battles over nominee ideology in Senate judicial confirmation proceedings; publicized accounts of judges declining to disqualify themselves from cases in which the risk of extralegal influence seems obvious; and the advent of expensive, highly politicized state court election campaigns all cast doubt on assumptions that we are in a business-as-usual scenario in which the public’s continued faith in its judges and the rule of law is a foregone conclusion. A second possibility is that these events have put us on a path to crisis, but polling data showing continued public confidence in the courts belies the imminence of such a development. A third possibility—and the most likely—is that we will witness a gradual erosion of rule of law values as the public internalizes the lessons of recent developments and becomes increasingly skeptical of claims that judges simply follow the law and must remain independent of popular and political controls to do so.

The key for the legal establishment is to reorient the ermine myth itself. For myths to galvanize a community, a perceived truth must exist at their core. Although there is truth to the “myth” that independent judges follow the law, that kernel of truth is diminished because “law,” for purposes of the myth, has been characterized so rigidly, in terms more compatible with nineteenth century formalism than more flexible, contemporary understandings. If the primary justification for an independent judiciary is to bracket out extralegal influences and enable judges to apply the law as a kind of formula, then deepening skepticism over the rule of law and the value of judicial independence are inevitable.

It is possible, however, to step back and reaffirm the instrumental value of an independent judiciary in other terms that underscore the role judicial independence plays in promoting three discrete objectives: a more capacious rule of law (one that acknowledges the inevitability of judicial discretion and the role that different influences play in informing that discretion); due process; and just outcomes informed by a ubiquitous form of pragmatism that most judges employ in their decision-making. The claim that judicial independence promotes a more flexible rule of law, due or fair process, and just outcomes, is still “mythological” insofar as excessive independence can liberate judges to act upon other interests that interfere with these goals. That, however, is where mechanisms for judicial accountability must operate to backstop independence by pursuing the very same objectives.

Reorienting the ermine myth to say that independent judges uphold a flexible rule of law, preserve due process, and seek just outcomes will force the legal establishment to rethink its reform agenda. For generations, the mantra of reformers within the legal establishment has been to “depoliticize” or “take the politics out” of the judiciary. That view may be compatible with crumbling formalism but is ill-suited to coexist with a new construct positing that judges are properly subject to a range of extralegal influences, including “political” ones, insofar as they concern the art of governing fairly and sensibly. The better approach is to move toward an era of “managed politics,” in which the goal is to regulate, rather than exterminate extralegal influences on judicial decision-making, to the end of promoting the three objectives of judicial independence and accountability. In many ways, that era is already upon us, but acknowledging it more explicitly should better inform the legal establishment’s reform agenda in a range of contexts, explained below.

Legal Education: Developing an approach to managing judicial politics logically begins in law schools, where future lawyers, judges and (many) lawmakers are first exposed to the way judges think. Policy analysis—analyzing how judges decide difficult legal questions with reference to competing policy concerns—is already a fixture of legal education. No thoughtful law professor or student thinks that judges can or do decide close questions of law with exclusive recourse to legal texts, unaided by reference to legal policy. It is only a short jump from there to identifying the factors that can influence individual judges to choose one policy over another. Exposing law students to social science data detailing the legal and extralegal influences on judicial decision-making, as a smaller part of the policy-analysis training that law students receive every day, would be a modest but important reform.

Judicial Selection: The mainstream legal establishment has long opposed those who would “politicize” judicial selection and has long campaigned to “take the politics out” of the selection process by, for example, ending state judicial elections and limiting federal confirmation proceedings to an evaluation of nominee “qualifications.” More openly acknowledging the inherently quasi-legal, quasi-political character of judging, however, may lead the legal establishment to entertain the possibility that managing, rather than eliminating, judicial politics in the selection process—by acknowledging the inherently political nature of the selection process, embracing variations across jurisdictions tailored to meet the particularized needs of different states, and encouraging incremental reform—is not just the best it can do but the most it should do.

Oversight of judges and the judiciary: Court critics, animated by the view that judges are shameless policy-makers run amok, have proposed draconian court-curbing measures (such as impeachment, jurisdiction-stripping and budget-cuts) to hold judges accountable. The legal establishment, animated by the view that judges are incorruptible bastions of the rule of law, have opposed such measures as threats to judicial independence. When it comes to blunderbuss proposals such as these that have been cyclically proposed and rejected for generations, it should be possible, indeed easy, for the legal establishment to defend the judiciary against them without resorting to a one-dimensional conception of the judicial role. Without disputing that judges are subject to extralegal influences, ham-handed tactics aimed at rendering judges subservient to the legislature do not seek to ensure that judges are process-minded, justice-seeking guardians of law; rather, they seek to ensure that judges do what legislators tell them to do, to the detriment of those very same values.

Fixation on these incendiary, court-curbing proposals, however, tends to perpetuate the misconception that keeping politics (or politicians) away from the courts is and ought to be the legal establishment’s lodestar. The routine give and take between the branches has become obscured; that give and take typifies the normal working relationship between the branches in a host of contexts, where managing judicial politics has long been a familiar part of the process. Members of Congress voice their concerns over judicial performance in oversight hearings, in comments to the media, and in floor statements; they seek to influence judges and courts through the legislation they introduce. For their part, judges make their views known individually in judicial opinions and collectively as the judicial conference, which pushes back against legislation it opposes and lobbies for legislation it supports—all against the backdrop of cyclical budget negotiations.

Evaluating mainstream proposals for court governance and the independence-accountability arguments they provoke, with more explicit reference to the three-fold objectives that independence and accountability serve, should help to structure and moderate the legal establishment’s response to such proposals. Judicial disqualification reform offers a useful example. “Impartiality” has been a defining feature of the judicial role for centuries, and, at common law, the presumption of impartiality was irrebuttable: judges could not be disqualified for bias. In the twentieth century, scholars and policymakers began to challenge this formalist proposition, and, in the 1970s, federal and state laws were revised to require disqualification whenever a judge was biased or his “impartiality might reasonably be questioned.” While these changes would seem to reflect a concession by the legal establishment that judges are subject to extralegal influences—influences that need to be managed—many judges have been loath to embrace the new world order embodied in the reforms.

The divisions within the legal establishment over judicial disqualification are put in boldest relief when it comes to the reform of disqualification procedure. The norm in the federal courts and most states is that judges decide their own disqualification motions. Disqualification determinations are subject to review via appeal or mandamus, but such review is highly deferential, with the majority view being that a judge’s decision not to disqualify himself is reversible only upon a showing of abuse of discretion. These rules sit well with traditionalists, who adhere to the presumption of impartiality and its premise that judges can bracket out extralegal influences and apply the law; and sit badly with reformers who are skeptical of the proposition that judges can step back from themselves and accurately assess the extent of their own bias, real or perceived. The approach I have advocated here would call upon the legal establishment to rethink its traditional view. If we acknowledge a range of extralegal influences on judicial decision-making, and propose to manage those influences to the end of maximizing the rule of law, procedural fairness, and sound, pragmatic decision-making, then several conclusions follow naturally. First, the rule of law is initially better served if disqualification rules are interpreted and applied by someone other than the targeted judge who is predisposed to think himself qualified to sit, and subsequently better served if biased judges, who would not disqualify themselves, are thereby excluded. Second, due process is better served if the judge qua fox is not called upon to guard his own henhouse. Third, the perspective that comes from being apart from, rather than a part of, the problem one is seeking to solve in the context of deciding disqualification motions improves the prospects for pragmatic, justice-seeking decision-making.

In short, what I propose here is to update the ermine myth to embrace at its core a more realistic vision of the judicial role. The stories that the legal establishment tells of the judicial role will retain a mythical quality, insofar as they embellish or exaggerate the truth by downplaying the extent to which judges can and do abuse their independence to the detriment of the rule of law, due process, and sound pragmatic decision-making. But the essence of the revised myth—that independent judges seek to follow the law, adhere to due process, and bring their common sense to bear to the end of seeking just outcomes—retains the sizable kernel of truth needed to preserve public support for the myth and the continued independence of the courts. And, if one thinks of judicial accountability in terms of managing extrajudicial influences on judicial decision-making to reduce the abuses of judicial independence, it will enable that kernel of truth to grow.

Acknowledgments:

Charles Gardner Geyh, Associate Dean of Research and John F. Kimberling Professor of Law, Indiana University Maurer School of Law.

This Editorial is based on the Article, Charles Gardner Geyh, Can the Rule of Law Survive Judicial Politics?, 97 CORNELL L. REV. __ (forthcoming 2012)

Copyright © 2011 Cornell Law Review.

I.  The Dynamics of Legal Procrastination

Decisions that legal institutions must make typically involve several stages.  Some stages may require the various decisional inputs in quite different proportions than others.  As a result, the optimal timing of the different components of an aggregate decision may be quite different from one another.  A component that depends heavily on information might usefully be postponed until that information becomes more available, while a component that depends far more on decisional resources or a clear set of norms may best be made early, when those resources are more readily available.  Unfortunately, contemporary pro-flexibility literature fails to disaggregate decisions in this manner.  Instead, the literature seeks to postpone all of a complex set of decisions by identifying a single component for which late-arriving information would be helpful.  Failure to disaggregate decisions has given a sense of fuzziness to the line between rules and standards.  Many legal materials whose relative “rule-ness” scholars debate actually contain some decisions made and others postponed.  Systematically separating the one set from the other, rather than treating them as gray continuum, is essential to evaluating each timing decision.

Although both the popular media and scholarly literature champion discre­tion­ary gov­ern­ance in gen­eral, they often are quite vague about just what kind of discretion they mean.  Forms of reserved discretion may be distinguished along two important dimensions.  First, a choice can be categorized based on its stage in the decision-making process: whether it affects the initiation of policymaking, the completion of a policy that is ready to implement, or some intermediate stage.  Second, a choice can be either affirmative or nega­­tive: it can either add to the formation of policy or can void and reopen decisions already made.  Each of these distinctions has practical consequences.  The typology set out below permits considerable specificity in arguments for reserving “more” or “less” discretion.  To date, argu­ments that are valid for postponing decisions at the final one or two stages in a process have been invoked to postpone more formative decisions for which no compelling reason to delay exists.

Formulating legal directives typically involves several stages.  An organ of the law may perform one or several steps and then leave others for later consideration, either by that organ or another.  The im­plications of interrupting the pol­icy formation process to preserve discretion depend on the stage at which the pro­cess is inter­rupted.  Four discretionary decisional stages exist in the formulation of most policies.  Notwithstanding the custom of distinguishing exercises of legislative and administrative authority from the courts’ decision of cases, these same patterns exist in legislation, in administrative law, and in judicial decision-making.  Indeed, although commitment and enforcement systems may look quite different, the same general pattern exists in private lawmaking as well.

First, someone must exercise initiative discretion, to decide to take action in a particular area.  Administratively, for exam­ple, the Occupational Safety and Health Administration (OSHA) must decide which of many workplace toxins it will regulate.

Second, someone must exercise normative discretion, deciding what values to pursue through that action.  Thus, the Oc­cu­pational Safety and Health Act of 1970 declares that OSHA must pursue the elimination of workplace hazards if feasible, and as interpreted by the Supreme Court, may not consider the costs to industry unless the regulation would destroy its economic viability.

Third, someone must exercise structural discretion, selecting a framework for the policy intervention. Here, OSHA must decide whe­­ther to establish exposure limits for a toxin, to mandate particular protective equipment, to require label­ing, or to intervene in some other way.

Finally, someone must exercise quantitative discretion, supplying the particular, often arbitrary, quan­ti­tative elements that activate the struc­­ture chosen.  This typically is the final exercise of discretion needed to set a government activity in motion.  OSHA selects a specific exposure limit for a particular toxin or the minimum specifications for pieces of protective equipment—and determines how many resources to devote to enforcing those rules.

Quite different mixes of inputs are required to produce each type of decision.  The law devotes its costliest decisional resources to exercising initiative and normative discretion: its highest courts, high officials elected by the voters or selected by elected officials, and sometimes (in state and local sys­tems) the direct attention of the people themselves.  These questions require high-level decisional resources be­cause of a scarcity—and indeterminacy—of normative consensus, for which the heightened legitimacy of top policymakers is a substitute.

Many exercises of structural and quantitative discretion are made in a similar manner.  Contemporary legal culture, however, does not insist that exercises of these forms of discretion consume the same expensive type of decisional resources.  The blossoming of the modern regulatory state and the roughly contemporaneous proliferation of balancing tests and similarly complex vehicles in case­ law resulted from our acceptance that bureaucrats and lower court judges could exercise quantitative discretion on important matters without direct oversight from senior officials.

Not all discretion, however, operates as such creative discretion.  Some individuals or entities may be empowered to exercise abrogational discretion.  Abrogational discretion may operate globally, voiding all prior decisions.  If the Office of Management and Budget (OMB), for example, refuses to clear a proposed OSHA regulation, all of the agency’s work formulating its policy is for naught.  Abrogational discretion may also operate more surgically.  It may appear as cre­ative discretion at a lower level.  Thus, for example, the structural decision to assign responsibility for OSHA enforcement to a hopelessly overburdened corps of inspectors may have the effect of reversing the decision to initiate policymaking in that area.  Alternatively, abrogational discretion may involve deciding whether to make exceptions to any broad policy decisions in a particular case.  This abrogation could take the form of a for­mal waiver or excep­tion or merely an ad hoc failure to apply the policy according to its terms in a particular situation.  For instance, OSHA inspectors may elect not to take action against an employer that is releasing more of a toxin than the agency’s rules allow if the employer is engaged in a vital activity or appears to be taking steps to resolve the problem.  The exercise of abrogational discretion naturally leads to the question of what policies are substituted for the ones rendered void.

Most important policies in our system are the result of discretion exercised at different times and often by dif­fer­ent levels of government.  Thus, resolution of legal disputes commonly requires reconciling sep­ar­ate exercises of discretion.  Reservations of flexibility tend to exacerbate these problems as they create uncertainty about the extent of the discretion that has been exercised at each stage, allowing for overlaps of con­flicting policies or overlooked gaps in policy formulation.

Battles over the role of the courts in reviewing the political branches’ substantive policy choices revolve around the proper assignment of actions within these categories.  Challengers try to portray a subordinate legal organ’s policy choices as involving exercises of types of discretion relatively high on the scale of discretion.  They then assert that their opponent’s institutional superior—the Constitution, Congress, rule makers, a higher court, or whomever—has exercised discretion at least that far down the scale, thus creating a conflict.  The policies’ defenders do the opposite.  The classic two-step test of the validity of agencies’ interpretations of federal statutes, enunciated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., revolves around how much discretion Congress has already exer­cised. The question at Step One—“whether Congress has directly spoken to the precise question at issue”—addresses con­ten­tions that Congress’s decision-making reached farther down the hierarchy of specificity than the agency claims.  Step Two, in turn, considers arguments that the agency’s actions unreasonably ex­tend farther up that hierarchy than it admits: that its actions do not “reasonabl[y]” fit with congressional choices.

II.  An Economic Analysis of the Production of Legal Decisions

Legal decision-making is a form of economic activity.  Legal institutions convert information, a set of norms, decisional capacity, and enforcement capacity into decisions that they expect to have more value than that of the inputs required to produce those decisions.  These inputs may come from public or private sources, and the decisions that law produces may include those of courts, legislatures, administrative agencies, and private parties responding to legal rules.  The agencies that produce administrative decisions must find ways of reconciling the demand (or need) for that service with the available supply of it.  Because we generally are unwilling to allow those with business before an agency to bid for the privilege of having their matters decided, agencies do not reconcile supply and demand through a market.  Instead, the agency mediates both demand and supply by scheduling decision-making.  Nonetheless, imbalances between these forces can cause the same kinds of disruptions as a market that is prevented from clearing.  When the demand for administrative decisions increases, or when the resources required to make those decisions become more expensive, the effective cost of decisions rises.  Just as inefficient queuing may be expected in a market that cannot produce sufficient supply to meet demand due to price controls or limits on market entry, so too are inefficient delays likely when the government cannot arrange for enough decision-making to meet demand.  Similarly, just as the government may try to relieve queuing in a constrained market with rationing or priority schemes, so too may administrative agencies try to expedite some kinds of decisions at the cost of even more severe delays for others.   In both cases, the infrastructure required to gather the information needed to administer the priority system injects its own additional inefficiencies that sometimes rival those of the queuing it seeks to avoid.

Of the four main inputs to legal decisions—information, applicable norms, decisional capacity, and im­plementation capacity—the one whose scarcity legal culture most freely discus­ses as a problem is in­for­­ma­tion.  We avoid discussing deficiencies in decisional or enforcement capacity as they em­barrass the law; lawyers often re­gard nor­mative ambiguity as an intriguing challenge or as an op­por­tunity to advance their clients’ cause.  When com­mentators see a decision that, ex post, appears ill in­formed, they tend to see that lack of information as an error that should be corrected in the future.

Shortages of other inputs can also be functions of time.  Sometimes delaying a decision can be expected to clarify the applicable norms, as when a case on the same question is pending before a higher court; in other cases, delay may either permit a consensus to develop or see views fragment further.  Legis­­lators, agency staff, judges, or those in the private sector empowered to make legally significant decisions may be preoccupied with other mat­ters at certain moments.  A shortage of enforcement capacity does not prevent decisions from being made, but it can fluctuate over time.

The value of legal decisions also can change with time.  Where a decision’s value would decline sharply with time, the law may be willing to bear higher input costs just as a factory might pay above-market rates for prompt delivery of a machine needed to meet a surge in demand.  For example, when a plaintiff risks suffering irreparable in­jury, courts hold expedited preliminary injunction proceedings even though the parties’ information pro­duc­tion costs and the value of the court’s time may be higher than if the matter came to trial in the usual course.  More generally, earlier decisions reduce parties’ needs to include hedges against multiple contin­gen­cies in their plans.  They also may reduce the parties’ costs of learning the law, increasing compli­ance and the social benefits the law is designed to yield.  Furthermore, postponing the main decision may require addressing subsidiary or interim matters first, duplicating transaction costs and multiplying the costs of errors.  Postponing decisions also may force rushed decisions of secondary matters that can only be addressed once the initial decision has been rendered.  Decisions rarely become more valuable to society as a whole when rendered later, although parti­cular parties may benefit substantially from delay.

When the inputs of a decision appear unusually costly, law has four basic responses available.  At one extreme, it can simply devote the additional resources necessary to bear those costs, perhaps leaving it unable to decide other matters or perhaps commandeering resources from other public or private pursuits.  At the other extreme, it can refuse to render a deci­sion at all.  For the most part, however, the law chooses between two intermediate options: rendering a lower-quality decision based on what inputs it can secure or shifting the decision to a time when inputs may be more plentiful.

The law often relies on default rules to respond to shortages of information, normative guidance, or decisional capacity.  These and other decisional work-arounds effectively serve as lower-quality sub­sti­tutes for the desired inputs.  As such, they presumably produce a lower-quality product—a decision more likely to be “wrong” when compared with the result more copious inputs would have yielded.  Like a business, the law must be cautious of the effect on its reputation of issuing an inferior pro­duct.

Law’s other major response to shortages of inputs is to change its timing.  Again, like a profit-making busi­ness, law seeks to optimize its social returns by conducting its productive efforts at the time when its in­puts are least costly and its decision will be most valuable.  When useful information is missing, the applicable norms are murky, decisional resources are scarce, or enforcement of any decision is uncertain, law may postpone pro­ducing a decision until the input in question becomes more affordable.  Conversely, sometimes law must move expeditiously because delaying would increase the cost of one or another vital input.  For example, statutes of limitations recognize that information degrades over time; con­sti­tu­tions lock in decisions based on norms that their framers fear might not endure; wills allow testators to determine how to dispose of their property after they have lost the capacity to decide.

III.  The Source of Enthusiasm for Flexibility

The foregoing discussion suggests that the desira­bility of postponing decisions depends on the cumu­la­tive effect of changes in the costs of inputs, which can be positive or negative, and changes in the value of the deci­­sion, which are likely to be negative.  That is not, however, the way our legal culture usually ap­proaches these problems.  Instead, it leans toward legal procrastination, under the lofty moniker of “flexi­bil­ity.”  One might expect that substantively flawed decisions made with re­served discretion might trigger a move­ment to rein in flexibility.  Although that is one possible response, critics are just as likely to argue that changing the procedure or institutional assignment for rendering the decision can correct the problem.

Four common analytical errors tend to cause underestimates of the costs of delay.  First, commentators assume that more information is an unalloyed good, ignoring the cost of acquiring it.   Second commen­ta­tors overestimate the role of information in producing a legal decision, exaggerating the value of information that they hope to receive if they wait or overstating the deficiencies in their present store.  Third, they fail to appreciate the declining value of decisions delayed too long.  And fourth, they confound postponements of decisions with delegations to different bodies that may have better access to information, cheaper decisional resources, or normative rules than those promoting delegation prefer.  Compounding these analytical difficulties, distributional concerns may override the desire to achieve the most efficient timing where the costs of delay are born unequally.

Under close examination, many arguments for flexibility reveal themselves as arguments for improved decision-making procedures or for a different institutional decision maker.  Yet additional procedures and delegations of responsibility usually can occur with or without significant postponement of the deci­sion.  To the contrary, strong procedural and institutional concerns often argue against flexibility.

Society’s willingness to invest decisional resources in rulemaking fluctuates considerably over time.  At the moment, for a mixture of political, technological, and psychological reasons, the pendulum has swung very far against policymak­ing through rules and in favor of broad reservations of discretion, leaving many normative, structural, and quantitative issues open until closer to the time a pol­icy needs to be implemented in particular cases.  As noted, this sometimes results from a desire to avoid hard political choices.  It also results from the widespread ignorance of, and skepticism about, statistical and other means of anticipating changes.  More broadly, we focus on one particular form of decisional failure—officials bound by policies that they know are mismatched to their situation—to the exclusion of several other kinds.  This myopic attention to policy obsolescence results from our increasing ten­dency to treat a very narrowly-defined con­­cep­tion of efficiency as the govern­ment’s primary goal.

Because decision-making is the law’s principal productive activity, exercises of discretion should be timed in the same manner that other productive enterprises are: by seeking the time at which the cost of required inputs is lowest relative to the value of the output that it can produce.  Even if some aspects of quantitative discretion (or abrogative discretion) might properly be postponed, early exercise of initiative, normative and often structural dis­cretion will often prove far more efficient than a sweeping reservation of flexibility.

Acknowledgments:

David A. Super, Professor, Georgetown University Law Center.

Copyright © 2011 Cornell Law Review.

This Editorial is based on the Article, David A. Super, Against Flexibility, 96 CORNELL L. REV. 1375 (2011).

Few scholars have impacted the field of Second Amendment scholarship as Professor Eugene Volokh has, and it is hard to overstate the degree to which my own work has benefited from his foundational insights. Indeed, my Article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms,¹ benefited from Professor Volokh’s generous comments prior to publication, and his queries about my fundamental assumptions directly informed and sharpened my arguments.²

This reply to Professor Volokh’s response³ to my Article reiterates my thesis, notes the historical evidence at issue, clarifies my use of that evidence, and then explains the implications of that evidence for my Article’s core claim. A less-than-careful reader might believe, based on Professor Volokh’s Cautionary Note, that the statements he finds objectionable are of central relevance to my Article. They are not. Although Professor Volokh and I may disagree about much of consequence—and we aired many of those important differences during our prior email exchanges—the historical evidence at issue here is not one of those things.

I should begin by restating my thesis for the benefit of an unfamiliar reader. While I appreciate Professor Volokh’s agreement with what he takes to be my conclusion,⁴ I believe it is important to state my thesis accurately. My project evaluates the language in District of Columbia v. Heller, 554 U.S. 570 (2008), which purports to equate “the people” referenced in the Second Amendment with “members of the political community.”⁵ My conclusion is that if we accept Heller’s holding that the Constitution protects a robust individual right to bear arms,⁶ then that logic cannot simultaneously limit those protections based on citizenship status. Citizenship limitations make sense only when the Second Amendment is interpreted as a right conditioned on protection of, or from, the state—the reading expressly rejected by the Heller majority.⁷ I stress this contingency regarding Heller’s individual rights holding because it is not the normative or doctrinal position to which I subscribe. My general scholarly project concerns equality for non-citizens,⁸ but, importantly, equality need not mean an expansion of rights.⁹ As I wrote in my Article, I have no quarrel with interpretations of the Second Amendment that would equitably restrict gun rights for all persons, regardless of citizenship status.¹⁰

Professor Volokh’s response takes issue with the text and footnotes of several sentences in the first segment of Part II.A (“Guns and Citizens from the Founding to the Civil War”). He cautions that I imply that there were many laws in the early years of the Republic that heavily regulated gun possession by women, poor whites, and non-citizens:

The article appears to assert that poor whites, women, and non-citizens were often legally barred from owning guns in the early years of the United States, or at least were subject to especially heavy gun controls.¹¹

First, nothing in my Article or the passages he selects claims the existence of especially frequent or unduly burdensome regulation of those groups. Leaving Professor Volokh’s characterization aside, however, I should have been more precise with the language I used to describe early American gun possession, rights, and attitudes. I did not intend to make or defend the strong claim Professor Volokh cautions against, which would have been tangential to my argument. To the extent there is any confusion about evidence or argument, let me be clear: I am not aware of, nor did I cite to, laws that expressly prohibited gun ownership by these groups. Indeed, in my Article, I expressly noted that I was not providing such evidence with respect to women.¹² I am confident that readers will not overlook the nuances and caveats routinely incorporated in the footnotes of academic articles.¹³

Moreover, I provide ample support for the proposition that aspects of gun possession and use were colored by a racialized, gendered, citizenship-based, and wealth-based understanding of full membership in the American polity, including prohibitions on militia membership for several groups and restrictions on gun ownership by slaves and free blacks.¹⁴ This is the modest claim I intended to defend, and it is neither a novel claim nor an especially surprising one. Further, even this modest claim is ancillary to my thesis. Instead, my Article focuses on using citizenship and racial restrictions in firearms law to unlock larger truths about “the people” protected by the Constitution.¹⁵ To claim that core notions of American identity and rights for “the people” were intertwined with common views about race, class, and gender—categories of individuals that did not enjoy the full panoply of privileges and rights as propertied white males during that time period—is not a controversial historical claim either.¹⁶

Without diminishing Professor Volokh’s important and welcome elucidation of the historical record,¹⁷ I also want to contextualize the importance of his clarification to my thesis. Quite simply, nothing in my argument turns on the strong claim that colonies or states exercised their authority to enact heavy prohibitions on gun ownership or use by women and poor whites. I have no interest in pursuing that auxiliary claim,¹⁸ precisely because my argument does not depend on it. The sentences quoted by Professor Volokh appear in the first Section of Part II of my Article, which constructs a consistent narrative of racialized and xenophobic firearm exclusion throughout American history. It is a narrative that is explicitly a part of Dred Scott v. Sandford,¹⁹ Cruikshank v. United States,²⁰ Presser v. Illinois,²¹ several state statutes at the turn of the twentieth century,²² debates surrounding the passage of mid-twentieth-century federal gun laws,²³ and even the current federal and state statutory background regarding citizenship-based gun rights.²⁴ This overarching narrative is wholly unaffected by the existence vel non of statutes in the early years of the Republic showing states had latitude to prohibit women and poor whites from gun ownership. Further, as I do not subscribe to “originalism” or “original meaning” or any interpretative methodology that disproportionally or exclusively weights meanings and practices of the early Republic, I do not consider the specific statutory background during that time period to be more important than others.

The sources cited in the sentences at issue purport to demonstrate—I hope successfully—that notions of race, gender, class, and citizenship informed and colored fundamental rights, like gun rights, in that time period.²⁵ Of these categories, de jure and de facto race– and citizenship-based exclusions are relevant to the remainder of the arguments made throughout Part II and the Article as a whole.²⁶ Thus, even incorporating Professor Volokh’s clarifications wholesale, they do not in any way affect my arguments in Part I, which challenges citizenship limitations on textual and doctrinal grounds,²⁷ or Part III, which constructs and rejects theoretical justifications for citizenship-based exclusions in an individual gun-rights regime;²⁸ nor do they diminish the strength my argument in Part II, which constructs a narrative of explicit xenophobic and racialized gun prohibitions throughout American history.²⁹ I do not read Professor Volokh’s critique or research to refute or undermine these foundational arguments.

I sincerely welcome Professor Volokh’s critique as a useful clarification of the historical record. I reiterate, however, that the weight of my thesis does not depend on the narrow historical claim raised by his Cautionary Note. One of the benefits of an active research agenda populated by capable scholars is that misapprehensions and disagreements about historical evidence can be quickly aired. Given our shared interest in producing interesting, useful, and accurate scholarship, I am especially grateful for this productive correspondence with Professor Volokh.

Acknowledgments:

Pratheepan Gulasekaram is an Assistant Professor of Law at Santa Clara University School of Law. He wishes to thank the editors of the N.Y.U. Law Review for their wonderful work on my Article and for the opportunity to continue discussion of the ideas presented in my Article.

I read with interest “The People” of the Second Amendment: Citizenship and the Right To Bear Arms,¹ and I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens. But it seems to me that there may be a mistake in the article’s historical assertions.

The article appears to assert that poor whites, women, and noncitizens were often legally barred from owning guns in the early years of the United States, or at least that they were subject to especially heavy gun controls:

• “[P]recolonial and early colonial gun laws in some states limited such rights [to bear arms] to subsects of the citizenry: white males deemed loyal to state interests.”²
• “From the early years of the republic through the mid-twentieth century, explicit and thinly veiled alienage and racial prohibitions helped maintain racial exclusivity in firearms possession.”³
• “The pre-Revolution and founding-era firearm restrictions were harbingers for the themes that have consistently pervaded gun regulation. . . . [S]ince only “First-Class citizens” were allowed to vote, bear arms, and serve on juries, many other citizens—poor whites, women, minors, free blacks—were denied many fundamental rights presently associated with citizenship.”⁴
• “Pre–Revolutionary War gun regulation did not necessarily depend on categories of legal citizenship but rather on a conception of membership in the national community contingent upon race, wealth, and gender.”⁵
• “Prevailing firearm laws in various states allowed for the disarmament of Catholics and poor whites.”⁶
• “By the time of the Constitution’s framing, statutes in the several states made guns a privilege of ‘First-Class Citizens,’ meaning that only select citizen males could legitimately exercise the right to bear arms.”⁷
• “[A]rms bearing was considered congruent to voting, holding public office, or serving on juries—rights associated with each other and denied even to many citizens.”⁸
• “Militia membership and its attendant firearms rights and obligations were not extended to include poor whites until the first decades of the nineteenth century.”⁹
• “This racialized, gendered, and class-stratified understanding of persons permitted to own guns—and exercise other core political rights—began finding legislative imprimatur in immigration and militia regulations [citing sources from the early Republic]. . . . Individual state constitutions codified restrictions on ‘Negroes, Mulattoes, and Indians’ serving in state militias or expressly limited firearms to ‘free white men.’”¹⁰
• “This ‘lone-democracy’ syndrome of the framers also explains the relationship between firearms and voting at the founding. Both were rights of ‘First-Class Citizens’ and could be denied to most Blacks, women, and aliens.”¹¹ Elsewhere, the article refers to this passage using the parenthetical “discussing gun-ownership restrictions in early republic.”¹²

These statements are claims about restrictions on civilian gun possession—about who was “permitted to own guns,” who was “prohibit[ed]” from owning guns, who was subject to “firearms restrictions” and “gun regulation,” whose “disarmament” was “allowed” by various “laws,” and so on—and not merely about who could be excluded from militia duty.

Yet unfortunately, none of the sources that the article cites actually shows that early American laws barred poor whites,¹³ women, and noncitizens from owning guns. Perhaps there are such early sources. But the article does not cite them, nor do the sources that the article cites on these matters sufficiently support the article’s assertions.

1. The article cites Saul Cornell’s Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, which does say that, under the Pennsylvania Test Acts, “[o]nly citizens who were willing to swear an oath to the state could claim the right to bear arms.”¹⁴ But in context, Professor Cornell’s article asserts only that those who wouldn’t swear such an oath could be disarmed even if they were citizens. It does not point to any laws disarming noncitizens on the grounds that they were not citizens; the Test Acts did not have a citizenship requirement.¹⁵ The article also cites another passage from Professor Cornell’s article, which says that “the meaning of the right to bear arms, unlike virtually any other right described in either state constitutions or the federal Constitution, was colored by the inchoate notions of class and rank that shaped American politics in this period.”¹⁶ But, however the “meaning” of the right may have been “colored,” that passage points to no statutes that actually limited gun ownership by women, poor whites, or aliens.
2. The article cites Akhil Reed Amar’s The Bill of Rights,¹⁷ which speculates that the Framers broadly conceptualized the right to bear arms as a political right, and that political rights belonged to “First-Class Citizens.” But Professor Amar’s excellent book cites no materials reporting that women, poor whites, or noncitizens were actually prohibited by law from owning guns. At most, the book seems to suggest that the Framers might have seen such prohibitions as constitutionally permissible had a legislature proposed them. Professor Amar does not assert that such restrictions actually existed.
3. The article supports its statement that “[i]ndividual state constitutions . . . expressly limited firearms to ‘free white men’”¹⁸ by citing the Tennessee Constitution of 1834.¹⁹ But this provision did not “limit[]” firearm possession to men; at most it may have allowed the legislature to limit firearms possession by women, though even that is not clear.²⁰ And I know of no Tennessee statutes that actually purported to restrict gun ownership by women, even if such statutes would have been constitutional under that provision.
4. The article notes that a 1915 article “baldly asserts” that “[w]omen . . . may be prohibited from carrying weapons.”²¹ The use of the adverb “baldly” suggests some skepticism about the 1915 article’s assertions, and the skepticism seems justified: The 1915 article indeed cites no support for its assertion, and I know of no other sources that would support such a claim. Neither The “People” of the Second Amendment nor the 1915 article cites Nunn v. Georgia, the one pre–Civil War source that did discuss the question, and that expressly said that the right to bear arms is a “right of the whole people, old and young, men, women, and boys.”²²
5. The article supports the assertion that “[m]ilitia membership and its attendant firearms rights and obligations were not extended to include poor whites until the first decades of the nineteenth century”²³ by citing and quoting Richard FSlotkin’s book chapter, Equalizers: The Cult of the Colt in American Culture: “Colonial militias excluded from service those residents who were not classed as freemen, a category that included poor whites . . . . The expansion of citizenship rights . . . through the Age of Jackson extended the franchise and the right and obligation of militia service to the white male portion of the excluded classes.”²⁴ But the book chapter does not say anything about the “attendant firearms rights” of militia membership, nor does it give evidence that poor whites lacked such “firearms rights.” It is not clear that the book chapter’s assertions about the exclusion of poor whites from militia membership are generally correct (except those assertions as to some colonies’ exclusion of indentured servants,²⁵ a category that was conceptually and practically quite different from poor whites²⁶). But in any case, the chapter’s assertions, even if accurate about the militia, do not show that any “firearms rights” were actually denied to poor whites.

The article does include a footnote that says, “I am not arguing that women were prevented from owning arms; rather, prevailing statutes and legal opinions gendered arms bearing in important ways.”²⁷ So the careful reader might grasp that the article’s claims about women—but not the article’s claims about poor whites and noncitizens—are not what they first appear.

But I am afraid that some readers might understandably miss that footnote. And if they see it, they might understandably be confused, because it is difficult to reconcile that footnote with the article’s statements that:

• “[S]ince only ‘First-Class citizens’ were allowed to . . . bear arms . . ., . . . women . . . were denied many fundamental rights presently associated with citizenship.”
• “[G]un regulation [depended] on a conception of membership in the national community con¬tin¬gent upon . . . gender.”
• “[O]nly select citizen males could legitimately exercise the right to bear arms.”
• “[A]rms bearing was considered congruent to voting.”
• “[F]irearms . . . could be denied to most . . . women.”

These statements do seem to assert that “women were [legally] prevented from owning arms.”
It is of course possible that custom or informal social understandings might have imposed de facto restrictions on gun ownership, even if the law did not. But none of the sources that the article cites offer evidence of that possibility, either.²⁸

When the article was available in draft on the Social Science Research Network (SSRN), I e-mailed the author asking whether he had found some sources showing that women, poor whites, and noncitizens had indeed been disarmed by law. I asked again after the Law Review published the article. But while the author kindly and promptly replied to my e-mails, neither response pointed to any sources that actually showed that women, poor whites, or noncitizens were legally constrained from owning guns.
It thus seems to me that the article may leave the reader with a mistaken understanding of the matter. I thought this was worth communicating to readers. And I thought it was also worth asking why the Law Review did not insist, as part of its cite-checking function, that the article be made more accurate on this point.

There are two things on which supporters of the individual-rights view of the Second Amendment and supporters of the collective-rights view seem to agree. First, historical claims have played an especially important role in debates about the Second Amendment. And, second, the conventional understanding of the Second Amendment has, unfortunately, often been based on incomplete or erroneous historical claims. I believe it is therefore especially important that all of us who work in this area be particularly careful in our historical assertions.

Acknowledgments:

Eugene Volokh (volokh@law.ucla.edu) is Gary T. Schwartz Professor of Law, UCLA School of Law. He wishes to give many thanks to Stuart Banner and Steve Yeazell for their feedback, and to Amy Atchison and Vicki Steiner at the UCLA Law Library for their indispensable research help.

In modern America, law pervades the practice of democratic politics—from the regulation of public assemblies to the minutiae of election administration—and the Supreme Court is perpetually asked to adjudicate political disputes. While we take this highly regulated political process for granted, it has not always been this way.

Today’s legalized democracy is the product of a particular period of regulatory transformation that brought the political process under comprehensive legal regulation between 1880 and 1930. This fact challenges two core assumptions that drive contemporary understandings of the American political process and the work of scholars who write about it. First, exposing how politics was regulated in the nineteenth century belies the assumption, especially prevalent in the literature, that law must extensively structure democratic politics. Second, recounting how self-governance was accomplished in nineteenth-century America serves as a reminder that elections, political parties, and voting, while critical to democracy, are not the whole deal.

I. Changing the People: The Regulatory Transformation of American Democracy

From the Founding to the 1880s, elections were part of an array of political practices that included public meetings, legislative petitions, street politics, and jury service. Americans used this repertoire of practices—some rugged and unsightly, others remarkably effective—to engage in democratic politics. This repertoire largely withstood significant changes in the substance of American politics through most of the nineteenth century.

These nineteenth-century political practices, while not unconstrained by law, were significantly less systematically and formally regulated by the state. The state did not provide an official ballot. Instead, political parties, which operated entirely outside of formal state supervision, printed their own. Public parades and assemblies occurred frequently and did not require official permits, and citizens—enfranchised and disenfranchised—could influence the legislative agenda through the relatively informal petitioning process. Finally, juries were widely understood to have a legitimate political function and were insulated from judicial second-guessing.

The precise form of legal regulation varied across political practices. For example, the rules governing petitioning were largely customary, whereas the framework for regulating public assemblies was state and local criminal law. What the various forms of early political regulation shared was minimalism. Regulatory controls were relatively weak and often exercised only intermittently. Thus, the people frequently had real autonomy from government—if not from social constraints and economic forces—as they sought representation.

Between 1880 and 1930, this repertoire of political practices changed as states and municipalities increased governmental controls over the full-range of avenues for political participation. These changes collectively constituted a transformation in the mode of regulating democratic practice. While the causes of change were multilayered and differed for each practice, the new mode of governance uniformly and significantly increased the government’s ability to structure the political process through law.¹

The transformation was starkest for political parties. Concerned about rampant corruption, the Progressives succeeded in passing a host of new rules governing elections and, subsequently, political parties. In terms of governmental power, the critical change was the introduction of an official ballot. A single state-printed ballot required and enabled the state to regulate political parties in ways that it had not previously.

For most of the nineteenth century, a ballot had been a piece of paper produced by a political party, or a faction within a party, that a voter stuffed into a box. Regulations governing elections were largely limited to delineating suffrage eligibility and simple election procedures. American political parties “operated without any legal recognition or restriction.”² When political parties produced their own ballots, there was no need to restrict how many parties could vie for office. It was not even necessary to restrict the number of candidates running under a given party label. If conflicts arose within a political party, they were struggled over and resolved privately. When irreconcilable differences arose, factions within a party produced different ballots. Individual voters also wrote in and struck out candidates.

Once the state insisted that there be a single ballot, that ballot became a limited resource, and the state had to establish rules for distributing access to it. Rules had to be established regarding which parties were worthy of inclusion on the ballot. This quickly raised questions regarding who would count as the legitimate candidate of a party as well as who within the party would be authorized to make that decision.

Prior to the adoption of an official ballot, political parties had “chose[n] their own nominating procedures and established their own bodies for internal governance.”³ The introduction of the official ballot changed all of that. Henceforth, the state frequently intervened in the inner workings of political parties and acted as the final arbiter of private disputes regarding political representation.

The official ballot thus marked a shift from a model in which law defined the ground rules of democracy to one in which law defined the processes of representation. This change was particularly significant because it gave incumbent politicians and the major political parties means by which to entrench themselves. The legislature, which comprised incumbents, was suddenly in a position to define the rules governing access to the ballot.

Other practices of nineteenth-century political action underwent analogous regulatory transformations with similar implications for state power. To take one example, the introduction of permit requirements for public assemblies between 1880 and 1930 ensured that people gathered in public now operated under legal supervision to a degree that was unprecedented.

Large gatherings on public streets were central to the democratic politics that emerged after the Founding. Starting in the Early Republic, festive street politics became a central facet of electoral competition. By the mid-nineteenth century, workers, poor people, racial minorities, and social movement participants all used city streets to further their political goals.

During this period, Americans had free access to public spaces for political purposes. Legal regulation was limited to criminal law. A public gathering was lawful as long as it had not become an unlawful assembly or riot under either state or local law. Citizens were not required to ask permission before exercising their right of assembly, and, once on the streets, they were entitled to remain unless and until there was a breach of the peace. In fact, the government was not entitled to regulate in anticipation of possible disorder.

This changed in the late nineteenth century as cities began to systematize and tighten their regulatory controls over urban public spaces, including over public assemblies in those spaces. Permit requirements for parades and other gatherings in public were virtually unheard of prior to the Civil War and remained rare in the early 1880s. By the 1930s, however, many American cities had settled on regulating public assemblies through such ordinances.

While it is not entirely clear what prompted the regulatory change, the new ordinances had important implications for governmental power. These ordinances meant city officials became the gatekeepers of public spaces with regard to public assembly. Previously, officials were involved in only those gatherings that disturbed the public peace. Prior to the introduction of permit requirements, there was, in effect, a presumption that gatherings in public places for social and political purposes were lawful. The new ordinances flipped that presumption: A gathering in public was inherently unlawful unless and until it was authorized by local officials.

The new ordinances solidified the local executive’s control over public assemblies in other ways as well. First, local officials had a role to play in advance of any public assembly, whatever its nature. Second, the ordinances effectively nullified the jury’s input on the lawfulness of the gatherings being regulated by rendering the factual inquiry into an entirely objective question—whether a permit had been sought and granted. This ensured that local officials alone would decide which assemblies should be prohibited. Third, these ordinances simply were tacked on to existing criminal law, thereby adding to the government’s regulatory arsenal.⁴

For forty years, the new regulatory regime enabled local government officials simply to prohibit public assemblies they found objectionable. Even today, permit requirements continue to enable the government to shape the contours of public assembly, including public protest.

II. Lessons for Today

The history of this regulatory transformation challenges two core contemporary assumptions about American politics. We tend to assume today—not only in the legal academy—that the political process must necessarily be structured by law. We (especially those of us in the legal academy) also tend to conceptualize democratic politics narrowly as elections, focusing exclusively on voting, political parties, and money.

This history challenges those assumptions by showing that there have been extended periods in American history when political practices were far more autonomous from existing legal institutions than they are today. It also highlights that the state must have control of the ground rules of politics before existing officeholders can use law to entrench themselves.

No doubt many will question how significant this challenge is. The combination of population growth and the expansion of suffrage in the twentieth century make it hard to imagine how contemporary American democracy could function without systematic regulation. More importantly, elaborate and specific formal legal rules guarantee a modicum of political equality for everyone. Efficiency, in other words, is not the primary value of legalization; the legalization of democracy has had normative benefits.

To these skeptics, I make two points. First, we must remember that formal law is not a per se guarantee of political equality; all depends on substance and historical context. The regulatory transformation discussed in my Article took place at least thirty years prior to the Court’s voting rights revolution and the 1965 Voting Rights Act. During this notoriously exclusionary period, political inequality was entrenched through many of the very laws discussed in the full Article (including literacy tests, poll taxes, voter registration rules, and permit requirements for public assemblies). If history teaches us anything, it is that law can just as easily entrench inequality as protect equality. In fact, it was normative concerns about legally entrenched political inequality that finally persuaded the Supreme Court to enter the political thicket in 1962.

Still, equality is more difficult to guarantee when legal regulation is sporadic and social regulation predominant. This leads me to a second point. Whatever the merits of legal regulation of politics may be, it would be folly to ignore the fact that entrenchment is only possible when law structures the processes of representation. In other words, legal regulation of politics is what allows government officials to define the polity in their own image and according to their own interests. The historical periods discussed in this essay were exclusionary. During those times, violence on the part of citizens and the state was tolerated in ways that it is not today. That should not, however, lead one to chafe at the suggestion that there were also costs to legalization—costs, in particular, to the autonomy of the people.

The central normative question is whether, once the costs are made visible, there are ways to preserve the norm of equality while scaling back regulations that distort politics by protecting incumbents or by undermining the fluidity and vibrancy of democratic practices.

Before we can engage in that inquiry, however, we will need a better understanding of contemporary American political practice. Democracy and elections are not synonymous. This is perhaps this history’s most significant payoff for today. A vivid account of nineteenth-century democracy provides a reminder that the core of democracy is self-governance.

Even today, elections, while critical to democracy, do not cover the whole range of practices of self-governance. Government itself has changed. Political groups no longer seek only to influence the legislative agenda; they spend at least as much time trying to influence administrative agencies and courts. In those contexts, their efforts to influence government take more- and less-formal forms. While elections and political parties are pervasively regulated by law, the administrative state’s notice and comment procedures are much more analogous to the nineteenth-century petitioning process.

Moreover, associations, both formal and informal, are extremely important to our self-governance. Churches and parent-teacher associations—as much as public interest organizations and political action groups—are the heart of political mobilization. Such associational groups come in a variety of forms with various purposes (political, religious, social, service-oriented, and hybrid), various levels of formality, and various relationships to law. Increasingly, these associations operate both in person and virtually through social networking sites.

Finally, the political activities of individuals and groups are wide-ranging. The people certainly donate to campaigns, endorse candidates, and get out the vote, but they do much more. They lobby legislatures and petition administrative agencies. They litigate. They assemble in person—but also, and possibly more frequently, online. They blog and tweet, and the more sophisticated of them work hard to create “spin.”⁵ Political groups today are quite conscious of the importance of cultural politics: The belief that Hollywood is at least as important as Washington is widespread.

A full catalogue and analysis of contemporary American political practice is obviously a future project. This brief musing, however, suggests that the repertoire of contemporary American political practices is richer than legal scholars who write about American democracy would have us believe. For instance, while the republican jury has been lost, public interest litigation has become a prominent way for the people to shape law, including constitutional law, and to influence politics.

In sum, institutional practices and legal rules governing democratic politics change over time. The nature and quality of political practice and democratic participation depend on institutional structures, but the relative autonomy of the democratic public sphere from the state depends on the degree to which the institutions that structure politics are legal institutions. Even today, we may need to look beyond legal rules and legal institutions if we wish to foster an autonomous and vibrant participatory democracy.

Conclusion

As we consider where deregulation might be appropriate to encourage accountability as well as fluid and vibrant political participation, we must move discussions regarding the law of democracy beyond their limited focus on elections and their component parts. We must work the more participatory political practices—from community organizing, whether traditional or internet-based, to public interest litigation on both the left and right—into our analyses and our normative programs for contemporary American politics.

Acknowledgments:

Copyright © 2011 New York University Law Review.

Tabatha Abu El-Haj is an Assistant Professor of Law at Drexel University, Earle Mack School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Tabatha Abu El-Haj, Changing the People: Legal Regulation and American Democracy, 86 N.Y.U. L. REV. 1 (2011).

Since 2000, one of the most serious efforts to reform the Electoral College has quietly unfolded, not in Washington, D.C., but in state capitals across the nation.  Galvanized by a shared sense of outrage regarding the 2000 election, several reform-minded citizens, including Akhil Amar and his brother Vikram Amar, imagined a novel way to transform the manner in which the nation elects its President that avoids the time consuming and daunting process required for a federal constitutional amendment.  Their idea is to have a large group of states agree to appoint their presidential electors in accordance with the national popular vote rather than their respective statewide popular vote.  Memorialized in a proposed interstate compact known as the “National Popular Vote Compact” (NPVC), their proposal goes into effect once states comprising a majority of the Electoral College join it.  From that point on, the national popular vote will conclusively decide the winner of the election regardless of whether all the states agree or a constitutional amendment abolishing the Electoral College is adopted.  In essence, these reformers seek to use the coordinated action of a number of states to turn the Electoral College into the vehicle of its own reform.  To date, eight states, including the electoral behemoth of California and the District of Columbia, have formally adopted the compact, and several other states have moved toward joining it.

The notion of a direct, popular election for the Presidency has an obvious appeal to Americans, who have an abiding faith in majoritarian democracy.  On closer inspection, however, the current system does not derogate from majoritarian democracy to a substantial extent, while the NPVC would produce Presidential elections deeply violative of majoritarian democracy.  In short, the NPVC is neither a necessary nor desirable reform.

First, the Electoral College is not the threat to American democracy that its critics urge.  While the Electoral College admittedly gives some states more electoral clout than their population would otherwise require, that “malapportionment” is both modest in degree and, more importantly, merely the price paid for having a presidential election system that combines elements of majoritarianism and federalism, as other large, federal democracies do.  In fact, when the actual operation of the Electoral College is examined, it turns out that the Electoral College blends those two values in a manner heavily weighted toward majoritarianism.  In all but one election (out of 56), the Electoral College has elected the candidate who won a majority of the national popular vote.  To be sure, the Electoral College does reward candidates whose political support is spread in a more geographically broad fashion throughout the nation, but, in a federal union such as the United States, that federalism-based bias against “favorite son,” sectional candidates is a desirable feature – and one that would be lost in moving to a purely majoritarian election system as the NPVC seeks to do.

Second and relatedly, the NPVC poses a far greater threat to majoritarian democracy than does the Electoral College.  Under the express terms of the NPVC, the national popular vote winner need not win a majority of the national popular vote; rather, the candidate who receives the most votes in the nation is deemed the national popular vote winner.  Thus, a candidate who wins only 40% or 30% (or even less) of the popular vote could become President so long as every other candidate received fewer votes.  That is hardly a move toward majoritarian democracy.

To be sure, plurality Presidencies are possible under the current system, but the prevailing winner-take-all process used by most states places a floor on the level of support the winning candidate receives by favoring the current, two major parties and discouraging third-party bids for the White House.  As a result, the Presidential contest is typically a two candidate affair, with the winner usually receiving a majority of the popular vote.  In fact, since the Civil War, most Presidents have received a majority of the popular vote, and even those Presidents who have been elected with a plurality of the vote have received, on average, over 47% of the vote.  In contrast, under the NPVC, plurality Presidencies with ever lower levels of support would become more common over time.  By transforming the current, state-by-state voting process, the NPVC would erode the current two-candidate system, producing more minor party candidates, which in turn would further fragment the national popular vote and produce more plurality Presidents with ever-declining levels of support.  Indeed, that has been the experience of other countries with voting systems like that proposed by the NPVC, and, as those countries have experienced, plurality presidencies typically lack the legitimacy and political support necessary to effectively lead the nation.

Third, even if moving to a direct popular election for President were desirable, a sub-constitutional, interstate compact is the wrong mechanism to use to achieve that result.  Unlike a constitutional amendment abolishing the Electoral College, the NPVC does not ensure a fair and workable presidential election process.  To the contrary, as an interstate compact which governs only those states that join it, the NPVC promises a number of political and legal fights among the states that will undermine the legitimacy of presidential elections and provoke enervating constitutional litigation of the sort witnessed in 2000.  The problems with the NPVC in this respect fall into two broad categories:  problems of obstruction and problems of implementation.

As to obstruction, the NPVC cannot prevent non-signatory states from undermining the calculation of the national popular vote, nor can it ensure that even signatory states will not withdraw from the compact on the eve of, or worse, shortly after the general election in November.  The easiest (and therefore most likely) form in which such obstruction could take place would be in the calculation of popular votes in each state.  Non-signatory states could simply refuse to release their popular vote totals prior to the date on which the Electoral College votes in mid-December.  If a sufficient number of non-signatory states engaged in this tactic, it would be impossible for the signatory states to determine which candidate was in fact the national popular vote winner.  In such a circumstance, it is purely a guess as to how signatory states would respond – indeed, the NPVC fails to provide any guidance to signatory states in such a scenario, making it highly likely that different states would act in different (and therefore contradictory) manners.

Even worse is the problem of states withdrawing from the compact either right before, or worse, right after the general election in November.  In fairness, the compact itself provides that states may not withdraw after July 20^th in a presidential election year, but that proviso is unenforceable both legally and practically.  If the NPVC is not ratified by Congress, it possesses no greater force than any other state law adopted by a state legislature.  As such, like any other state law, it can be repealed by a state legislature at any time in accordance with that state’s constitutionally prescribed legislative procedure.  Moreover, Article II of the U.S. Constitution delegates to the state legislatures the power to select their presidential electors in such manner as they see fit.  That power cannot be alienated by a prior state legislature.  Thus, a state legislature’s adoption of the NPVC in 2011 cannot prevent that same state’s legislature in 2016 (or any future presidential election year) from choosing to alter its presidential election process at any time up to and even after the November general election.

Nor would Congress’s ratification of the NPVC preclude the ability of signatory states to withdraw after July 20th.  Given Congress’s repeated failure to adopt a constitutional amendment abolishing the Electoral College, it is highly unlikely that Congress will approve the NPVC, but, even if it did, that would not matter.  Article II delegates the power to determine the manner in which electors are selected in each state to the state legislature alone.  In the views of some, that proviso means that Congress may not interfere with a state legislature’s choices with regard to how that state’s presidential electors are selected.  Equally importantly, even if Congress’s ratification did take place and have binding effect, it is far from clear that any court, federal or state, would be able to force a withdrawing state to appoint its presidential electors in accordance with the nationwide popular vote against its will.  In fact, any such injunction might only succeed in producing two competing slates of electors from the same state – one based on the statewide poll and one based on the nationwide poll.  In that case, the determination of which slate of electors was the “legitimate” one would fall to Congress under the Electoral Count Act, and Congress neither is nor can be bound by the NPVC in determining which slate of electors is the appropriate one.

As to implementation, the NPVC cannot guarantee a Presidential election process that accords with rudimentary notions of political equality and fairness.  Different states employ different rules regarding who may vote, how they vote, and how their ballots are counted.  Those differences are substantial, and they preclude simply summing up the popular vote on a national basis.  Indeed, the same constitutional flaw that the U.S. Supreme Court identified in Florida in 2000 – the use of divergent vote tabulation standards in different counties in Florida – would be replicated fifty-fold.  If it violates the Equal Protection Clause for Broward County in Florida to employ a different vote tabulation standard than that used in Miami-Dade County in determining who won the statewide poll, it would likewise violate Equal Protection for Oregon, in determining who won the national popular vote, to use a different vote tabulation standard than that used in California or Florida.  In essence, the NPVC’s failure to provide for a nationwide, uniform election process guarantees that the problems encountered in Florida in 2000 are replicated but, this time, on a national scale.

Moreover, even if it were constitutional to amalgamate the results of state-conducted elections on a national basis, the NPVC fails to provide for a recount if the national popular vote is close, as it was in 2000 (and in several prior elections).  On the one hand, the specter of a nationwide recount with its attendant administrative chaos, expense, and all-too-assured accusations of partisan manipulation of the process in different states should give everyone pause.  Yet, in the absence of such a recount, there would be no way to know which candidate truly won the popular vote.  The only thing worse than conducting a nationwide recount would be failing to conduct one in a close election.

Thus, far from preventing another 2000, the NPVC almost assuredly would produce a series of political and legal crises, along with the accompanying litigation that inevitably form a part of such imbroglios, that would make the 2000 election look like child’s play.  That is not reform; rather, it is an invitation to repeated electoral disasters.  Indeed, for those who prefer that the winner of the Presidency not be determined by the U.S. Supreme Court via post-election constitutional litigation, the NPVC is a dangerous step backwards.

Acknowledgments:

Norman R. Williams is the Ken & Claudia Peterson Professor of Law and Director of the Center for Law and Government at Willamette University.

Copyright © 2011 Georgetown Law Journal