The Parliament of the Experts

In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus? I argue that voting by expert panels is likely, on average, to be epistemically superior to the substantive judgment of agency heads, in determining questions of fact, causation, or prediction. Nose counting of expert panels should generally be an acceptable basis for decision under the arbitrary and capricious or substantial evidence tests. Moreover, agencies should be obliged to follow the (super)majority view of an expert panel, even if the agency\u27s own judgment is to the contrary, unless the agency can give an epistemically valid second-order reason for rejecting the panel majority\u27s view

Hercules, Herbert, and Amar: The Trouble With Intratextualism

Commentary on, Akhil Reed Amar, Intratextualism, 112 Harvard Law Review 747 (1999)

Conventions in Court

In the Commonwealth nations, a constitutional “convention” denotes an unwritten but obligatory constitutional custom or norm. The question I will address is whether public law in the United States should be understood to permit, require or forbid federal courts to incorporate conventions into their decisions. My major claim is that public law should adopt an approach that has achieved consensus status in the United Kingdom and Commonwealth – what I will call the “modern Commonwealth view.” This approach holds that while courts may and should recognize conventions, they may not and should not enforce them. The main strength of the modern Commonwealth view is that it is not either of two other leading views, which I will call the “classical Diceyan view” and the “incorporationist view” respectively. I will argue that the two competing views are untenable and undesirable, and that the modern Commonwealth view triumphs faute de mieux – for lack of a better, or even any feasible, alternative. Moreover, I will claim that in important cases, especially recent cases, the U.S. Supreme Court has implicitly moved toward just this approach

Optimal Abuse of Power

I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall. There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about “private” misrule -- misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing power under the rules of the 18th-century common law of property, tort, and contract. The administrative state thus trades off governmental and “private” misrule. Second, the rate of change in the policy environment, especially in the economy, is much greater than in the late 18th century -- so much greater that the administrative state has been forced, willy-nilly, to speed up the rate of policy adjustment. The main speeding-up mechanism has been ever-greater delegation to the executive branch, accepting the resulting risks of error and abuse. Third, the costs of enforcing legal rules against executive officials are necessarily positive and plausibly large, in part because any institutional monitors created to detect and punish abuses must themselves be monitored for abuse. The architects of the administrative state believed that a government that always forms undistorted judgments, and that never abuses its power, will do too little, do it too amateurishly, and do it too slowly. In that sense, the administrative state constantly gropes towards an institutional package solution that embodies an optimal level of abuse of power

The Invisible Hand in Legal and Political Theory

Theorists have offered invisible-hand justifications for a range of legal institutions, including the separation of powers, free speech, the adversary system of litigation, criminal procedure, the common law, and property rights. These arguments are largely localized, with few comparisons across contexts and no general account of how invisible-hand justifications work. This essay has two aims. The first is to identify general conditions under which an invisible-hand justification will succeed. The second is to identify several theoretical dilemmas that arise from the structure of invisible-hand justifications and that cut across local contexts. These are the dilemma of norms, which arises because norms of truth-seeking, ethical action or altruism can both promote and undermine the workings of the invisible hand; the dilemma of second best, which arises because partial compliance with the conditions for an invisible-hand justification can produce the worst of all possible worlds; and the dilemma of verification, which arises where theorists claim that an invisible-hand process functions as a Hayekian discovery procedure -- a claim that is empirical but pragmatically unverifiable

Common-Law Constitutionalism and the Limits of Reason

In recent years, the central claim of common-law constitutionalism has been that precedent and tradition embody some form of latent wisdom. Judges will generally do best by deferring to the wisdom embodied in precedent and tradition, rather than trusting to their unaided reason. In what follows, I offer a critical analysis of this family of claims. Drawing throughout on Jeremy Bentham's critique of the subconstitutional common law, I conclude that the constitutional common law is not plausibly seen as a repository of latent wisdom, at least not to any greater extent than statutes and other nonjudicial sources of law. The mechanisms advanced by common-law constitutionalists suffer from infirmities of internal logic and from a failure to make the necessary institutional comparisons between and among precedent and tradition, on the one hand, and the outputs of legislatures, executive officials, and constitutional framers on the other

A New Deal for Civil Liberties: An Essay in Honor of Cass R. Sunstein

A central, organizing motif of Cass Sunstein's work is the effort to spell out the consequences of the New Deal for American law. I suggest that anyone who shares Sunstein's premises can and should go even farther in this direction. The logical consequence of Sunstein's views is a New Deal for all civil liberties and personal liberties. Criminal law and procedure, and cases growing out of the Global War on Terror, should be approached through New Deal lenses. All civil and personal liberties will ultimately have to justify themselves at the bar of cost-benefit analysis. This essay is prepared for a symposium on "The Scholarship of Cass R. Sunstein" to be published by the Tulsa Law Review

The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division

In the theory of constitutional and statutory interpretation, dynamic arguments point to the beneficial effects on legislative behavior that will result if "judges" or "courts" adopt a particular approach to interpretation. In this paper I claim that such arguments are conceptually confused, and thus do not count as valid arguments at all. Dynamic arguments commit the fundamental mistake of overlooking the collective character of judicial institutions - of overlooking that the judiciary, like Congress, is a "they," not an "it." That mistake produces the critical, and erroneous, assumption that coordinated judicial adoption of some particular approach to legal interpretation is both feasible and desirable. That assumption commits two logical fallacies simultaneously. The fallacy of division arises when a claim that is true of, or justified for, a whole set is taken to apply to any particular member of the set. The fallacy of composition arises when a claim that is true of, or justified for, any particular member of a set is taken to apply to the whole set. Both fallacies infect dynamic interpretive arguments. First, the claim that a given approach would be best for the whole court or judiciary does not entail that it would be best for any given judge taken alone. The inference from the group-level claim to the individual-level claim fails if judicial coordination on a particular approach is infeasible or unlikely. Second, the claim that a particular approach is best for any given judge need not entail that it would be best for the whole court (or judiciary). If a diversity of approaches is desirable for systemic and institutional reasons, then it would be an affirmative bad for all judges to coordinate on a particular approach. To overlook the first point is to commit the division fallacy; to overlook the second is to commit the composition fallacy. The same reasoning applies from the standpoint of every judge in the system. In the language of moral philosophy, dynamic theorists have overlooked essential questions of non-ideal theory, which asks what obligations people have when others will not or cannot comply with their (identical) obligations. In the language of economics and consequentialist political theory, the interpretive theorist has overlooked essential questions of the second-best, which arise when a general or collective equilibrium cannot be attained. It is an irony of interpretive theory that so much emphasis has been given to exploring the consequences of the legislature's collective character, while inadequate attention has been paid to the same problem in judicial institutions