Showing papers in "Harvard Law Review in 2008"

The Core of an Uneasy Case for Judicial Review

Abstract: TABLE OF CONTENTS I. WALDRON'S ARGUMENT THAT OUTCOME-RELATED REASONS ARE INADEQUATE TO SUPPORT JUDICIAL REVIEW 1701 A. Waldron's Assumptions 1701 B. Which Assumptions Do What Work? 1701 II. PREFERRED RIGHTS AND OUTCOME-RELATED REASONS TO SUPPORT JUDICIAL REVIEW 1704 A. Distinguishing Errors of Underenforcement and Overenforcement of Individual Rights 1704 B. The Limits of the Outcome-Based Case for Judicial Review: Contestable Premises and the Burdens of Judgment 1709 III. PROCESS-BASED REASONS AND POLITICAL LEGITIMACY 1715 A. Waldron's Process-Based Argument--And Its Limits 1716 B. Political Legitimacy and Its Sources 1716 C. Comparative Democratic and Political Legitimacy 1717 1. Anchoring Assumptions 1717 2. Transitional Questions 1719 3. Judicial Review Without Entrenchment 1719 4. Entrenched Rights and Judicial Review 1722 (a) Entrenched Rights Without Judicial Review 1722 (b) Entrenched Rights Coupled with Entrenched Judicial Review 1724 IV. NOTES ON THE DESIGN OF A SYSTEM OF JUDICIAL REVIEW 1726 A. Judicially Reviewable Issues 1727 B. Scope of Review 1730 C. Choosing Strong or Weak Judicial Review 1731 D. Judicial Review in Societies that Are Not Well Ordered 1732 V. CONCLUSION 1733 Richard H. Fallon, Jr. * For a long season, the desirability of judicial review of legislation was a complacent assumption of American constitutional, political, and moral thought. A vigorous debate percolated about how courts should interpret the Constitution, but not much serious discussion addressed whether judicial review should exist at all. Now matters have changed. Although debate continues concerning how courts should make constitutional decisions, distinguished critics have begun to argue for a fundamental rethinking of the role of courts in a democratic culture such as ours. (1) Some advocate the total abolition of judicial review. (2) Having heard the critics, I now believe that the affirmative case for judicial review needs to be partially revised if judicial review is to be defended successfully on the moral high ground of liberal political theory. In a nutshell, the best case for judicial review in politically and morally healthy societies does not rest (as has often been asserted) on the idea that courts are more likely than legislatures to make correct decisions about how to define vague rights of the kind commonly included in bills of rights--on notions, for example, that courts are peculiarly well designed to function as "forum[s] of principle." (3) The best case, as Frank Cross also has argued, (4) rests instead on the subtly different ground that legislatures and courts should both be enlisted in protecting fundamental rights, and that both should have veto powers over legislation that might reasonably be thought to violate such rights. A suggestive, albeit not perfect, analogy comes from the federal jury system in criminal cases, under which a defendant cannot be convicted without the unanimous agreement of the jury, (5) and each of the twelve jurors must vote to acquit unless persuaded that the defendant has been proven guilty "beyond a reasonable doubt." (6) If the concern were simply to get correct judgments about whether the accused had committed a crime, decisions by majority vote, pursuant to a preponderance of the evidence standard, would produce more accurate outcomes. (7) Instead, we skew the system in a pro-defendant direction based on the premise that errors resulting in mistaken convictions of the innocent are morally worse, and thus more important to avoid, than erroneous acquittals of the guilty. (8) In other words, we care less about minimizing the overall number of errors than about minimizing the errors in a particular direction--a situation that might also obtain with respect to judgments involving individual rights. …

Dead or Alive: Originalism as Popular Constitutionalism in Heller

Abstract: We should find the lost Second Amendment, broaden its scope and determine that it affords the right to arm a state militia and also the right of the individual to keep and bear arms. --Robert Sprecher, ABA prize winner, 1965 (1) [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. ... What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. --Justice Scalia, Lawrence v. Texas, 2003 (2) The Court's announcement in 2008 that the Second Amendment, (3) ratified in 1791, protects an individual's right to bear arms against federal gun control regulation was long awaited by many, long feared by others. What produced this ruling and what might it reveal about the character of our constitutional order? For many, constitutional law changed because the Court interpreted the Second Amendment in accordance with the understandings of the Americans who ratified it: Heller (4) marks the "Triumph of Originalism." (5) Others saw the case very differently, observing that the Court had interpreted the Second Amendment in accordance with the convictions of the twentieth-century gun-rights movement and so had demonstrated the ascendancy of the living Constitution. (6) The two accounts of the decision stand in some tension. One views Heller's authority as emanating from the deliberations of eighteenth-century Americans, while the other views the constitutional debates of twentieth-century Americans as decisive. What kind of authority did the Court exercise when it struck down the District of Columbia's handgun ban as violating the Second Amendment? On the originalism view, the Court is merely enforcing the judgments of eighteenth-century Americans, who, in an epochal act of constitutional lawmaking, ratified a Bill of Rights that forbids handgun bans such as the District of Columbia's. On the popular constitutionalism view, the Court itself is deciding whether handgun bans are consistent with the best understanding of our constitutional tradition; the determination is made in the present and responds to the beliefs and values of living Americans who identify with the commitments and traditions of their forbears. In the first case, the Court stands above the fray, disinterested, merely executing the commands of Americans long deceased. In the second case, the Court is normatively engaged in matters about which living Americans passionately disagree, enforcing its own convictions about the best understanding of a living constitutional tradition to which Heller contributes. On this account, Heller, through its originalism, participates in what Justice Scalia refers to in his Lawrence dissent as "the culture war." (7) Relating these two competing accounts of the opinion, this Comment shows how Heller's originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. It situates originalism's claim to ground judicial decisionmaking outside of politics in the constitutional politics of the late twentieth century, and demonstrates how Heller respects claims and compromises forged in social movement conflict over the right to bear arms in the decades after Brown v. Board of Education. (8) The Comment offers this reading of the opinion in two steps. Part I begins by examining the temporal locus of authority in the Heller opinion itself. In Heller, the dissenters insist the Second Amendment is concerned primarily with militia and military matters, whereas the majority reads the amendment as codifying an individual right of self-defense that enables citizens to protect themselves, their families, and their homes against crime. …

Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements

Abstract: I. THE FAMILIAR PLACE OF PERCEPTIONS IN THE DEBATE OVER ELECTION FRAUD 1740 II. SURVEY METHODOLOGY 1742 III. BELIEFS IN THE FREQUENCY OF VOTER FRAUD, VOTER IMPERSONATION, AND VOTE THEFT 1744 IV. PERCEPTIONS OF FRAUD AND THE LIKELIHOOD OF VOTING 1750 V. VOTER IDENTIFICATION AND FEARS OF FRAUD 1754 VI. CONCLUSIONS 1758 APPENDICES 1761 APPENDIX A 1761 APPENDIX B 1765 APPENDIX C 1768 APPENDIX D 1770 APPENDIX E 1772 APPENDIX F 1773 The current debate over the constitutionality of laws mandating photo identification for voters presents a series of largely unanswered, and in some respects, unanswerable, empirical questions. For the most part, the parties to the litigation culminating in the case currently before the Supreme Court, Crawford v. Marion County Elections Board, (2) have speculated about the number of illegal votes cast and the number of legal voters who would be prevented from voting were voting conditioned on the production of a driver's license or some other form of state-issued voter identification. When critics of voter ID requirements point to the lack of prosecutions or reported incidences of voter impersonation fraud, defenders of such laws reply, in part, that successful fraud goes undetected. When defenders of voter ID argue that such laws lead to very few people being turned away from the polls or having their votes go uncounted, critics respond that even a violation of the voting rights of a few is constitutionally impermissible, and that precious little data exist to assess the impact of such laws on the currently voting population or the deterrent effect it might have on future voters. With the scarcity of empirical findings to settle some of the factual issues central to this debate, (3) there is great risk that the Court will resign itself--as it hinted it might in Purcell v. Gonzalez, (4) quo-ted above--to its intuition that "fear" of election fraud "drives honest citizens out of the democratic process." This intuition, however, presents a testable empirical proposition, which this Essay attempts to evaluate based on new survey data that assess the popular perception of election fraud and the likelihood that such beliefs lead to voter disengagement. We begin this Essay in Part I by situating the argument about fears of fraud within the debate over voter identification requirements and election law more generally. The argument follows a path familiar to campaign finance law, in which the Court elided difficult questions about the empirics of campaign contributions and corruption by relying on the prevention of the appearance of corruption as a state interest sufficient to justify restrictions on campaign contributions and expenditures. (5) Part II describes the unique national survey we conducted to assess how widespread popular fear of two different types of election fraud is, and the relationship between such fear and the likelihood of people turning out to vote. Part III discusses our findings about the prevalence of perceptions of vote fraud and how those perceptions vary among political, racial, and other demographic subgroups. In Part IV, we present findings suggesting that such fears of fraud, while held by a sizable share of the population, do not have any relationship to a respondent's likelihood of intending to vote or turning out to vote. …

Land Assembly Districts

Abstract: Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or “LADs.” This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and moral intuition underlying LADs is simple: when the only justification for assembly is over-fragmentation of land, neighbors should be able to decide collectively whether their land will be assembled. Our legal theory solution is equally simple: use property law to retrofit communities with a condominium-like structure tailored to land assembly. Let’s try giving those burdened by condemnation a way to share in its benefits and to veto projects they decide are not worth their while.

Causal Inference in Civil Rights Litigation

Abstract: TABLE OF CONTENTS I. REGRESSION'S DIFFICULTIES AND THE ABSENCE OF A CAUSAL INFERENCE FRAMEWORK 540 A. What Is Regression? 540 B. Problems with Regression: Bias, Ill-Posed Questions, and Specification Issues 543 1. Bias of the Analyst 544 2. Ill-Posed Questions 544 3. Nature of the Model 545 4. One Regression, or Two? 555 C. The Fundamental Problem: Absence of a Causal Framework 556 II. POTENTIAL OUTCOMES: DEFINING CAUSAL EFFECTS AND BEYOND 557 A. Primitive Concepts: Treatment, Units, and the Fundamental Problem 558 B. Additional Units and the Non-Interference Assumption 560 C. Donating Values: Filling in the Missing Counterfactuals 562 D. Randomization: Balance in Background Variables 563 E. Observational Studies: Challenges and Some Ways To Address Them 565 F. The Need for Lots of Background Variables 573 III. POTENTIAL OUTCOMES IN THE CIVIL RIGHTS LITIGATION SETTING 575 A. In General 576 1. Identifying Primitive Concepts. 576 2. A Tug-of-War: The Need for Background Variables Versus the Desire To Detect Discrimination. 581 B. Specific Contexts 583 1. Capital Punishment. 583 2. Employment Discrimination. 588 3. Causation and Section 2 of the Voting Rights Act 590 IV. CONCLUSION 597 "If they can get you asking the wrong questions, they don't have to worry about answers." -- Thomas Pynchon (1) In modern litigation, courts, attorneys, and expert witnesses use statistics in the hope of shedding light on questions of causation. This is particularly true in the civil rights context, where repetition of similar events makes the use of data analysis techniques attractive. The dialogue between law and quantitative methods in the civil rights area has lasted for decades, but few would characterize the relationship as happy. The disquiet is evident on both sides. As early as 1980, legal commentators concluded that many courts disregarded a substantial portion of statistical analyses they encountered in the employment discrimination context. (2) I Twenty-five years later, a survey of Title VII (3) cases demonstrated that little has changed. (4) On the quantitative end, innovation has stagnated. During the decade or so that the Supreme Court was placing its imprimatur on statistics in general and regression in particular as appropriate forms of evidence in Title VII cases, (5) the academy was responding with scholarly examinations of quantitative issues arising in employment discrimination, (6) capital punishment, (7) redistricting, (8) and other contexts. (9) Quantitative analysts were convening panels and holding symposia to make recommendations to improve judicial understanding and use of statistical methods in litigation. (10) Those recommendations were ignored, (11) however, and a perusal of the hornbooks and looseleafs discussing the use of statistics as evidence in civil rights litigation suggests that the field is fixated on methods introduced decades ago, particularly regression, (12) despite judicial dissatisfaction. …

The ascent of the Administrative State and the demise of mercy

Abstract: TABLE OF CONTENTS I. TAMING DISCRETION: THE DEVELOPMENT OF ADMINISTRATIVE LAW AND THE DECLINE OF UNREVIEWABLE POWER 1336 A. The Development of Administrative Law and the Importance of Judicial Review 1336 B. The Threat of Unreviewable Discretion 1339 1. Jury Nullification 1340 2. Executive Clemency 1345 3. Prosecutorial Discretion 1351 II. THE CENTRALITY OF JUDGES: THE RISE OF ADMINISTRATIVE LAW AND THE INCREASE OF JUDICIAL POWER 1355 III. THE LIMITS OF THE BUREAUCRATIC STATE AND THE PLACE FOR MERCY 1358 There are currently more than two million people behind bars in the United States. (1) Over five million people are on probation or some other form of supervised release. (2) Prisoners are serving ever-longer sentences. (3) Presidential and gubernatorial grants of clemency are rare events. The use of jury nullification to check harsh or overbroad laws is viewed by judges and other legal elites with suspicion. These are punitive, unforgiving times. Although a great deal of scholarship has sought to explain the incarceration boom and the rise in punishment, (4) very little work has focused on the reasons why forms of mercy have been on the decline. (5) Specifically, scholars have not done much to explore why two of the last remaining forms of the unreviewable power to be merciful--executive clemency and jury nullification--are currently looked upon with such disfavor. Perhaps this question has been ignored on the theory that the rise in punishment and the decline in mercy are two sides of the same coin, both outgrowths of the same phenomenon. That is, the political climate that produces greater punishment must also depress mercy. While it is true that the political economy of punishment is an important reason for the decline in nullification and clemency that should not be discounted or ignored, it is not a complete explanation. As this Essay explains, skepticism about jury nullification and executive clemency has its roots in another development as well: the rise of the administrative state and the key concepts of law that have emerged alongside it. (6) This Essay argues that administrative law has weakened these exercises of mercy in two key respects. First and foremost, the rise of the administrative state has made unchecked discretion an anomaly in the law, and a phenomenon to be viewed with suspicion. The expansion of the administrative state has showcased the dangers associated with the exercise of discretion. Without a check on the power of agencies, benefits could be bestowed and sanctions imposed on the basis of an array of inappropriate factors. Racial discrimination, favoritism to campaign contributors, and cronyism are only a few examples of the numerous extralegal factors that could influence an agency's unchecked exercise of discretion. The solution has been the curtailment of discretion through judicial review. Courts insist that agencies operate within legally defined boundaries and give explanations for their actions. Unlike the rational basis review that gives legislative acts the benefit of the doubt, the "hard look" review of agency decisions is more skeptical of discretion. With the rise of administrative law, our legal culture has come to view unreviewable discretion to decide individual cases as the very definition of lawlessness. Jury nullification and an unqualified executive power to grant clemency sit uneasily beside an administrative state that faces such scrutiny, for these exercises of mercy are precisely the type of unreviewable exercises of discretion that administrative law seeks to control. This concern about unchecked discretion takes on even greater importance in criminal law because of the many examples in the history of criminal justice where actors have exercised discretion in racially discriminatory ways or to produce racially disparate results. …

Demosprudence Through Dissent

Abstract: TABLE OF CONTENTS PROLOGUE 7 I. DISSENT AND THE AUDIENCE QUESTION IN HISTORICAL AND CONTEMPORARY CONTEXT 17 A. Norms of Dissent and the Audience Question 17 B. Why Focus on Oral Dissents? Democratic Accountability 22 C. Oral Dissents and Questions of Biography 31 II. DEMOSPRUDENCE THROUGH DISSENT 45 A. What Is a Demosprudential Dissent? 45 B. The Demosprudential Continuum from Oral Dissents to Written Opinions 50 C. The Relationship Between Demosprudence and Popular Constitutionalism 54 III. DEMOSPRUDENCE THROUGH DISSENT IN THE OCTOBER 2007 TERM 57 A. Justices Stevens and Scalia's Opinions in the October 2007 Term: A Demosprudential Perspective 61 1. Baze v. Rees, 128 S. Ct. 1520 (2008) (Stevens, J., concurring) 61 2. District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (Stevens, J., dissenting) (oral dissent) 68 3. Boumediene v. Bush, 128 S. Ct. 2229 (2008) (Scalia, J., dissenting) (oral dissent) 75 4. Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184 (2008) (Scalia, J., dissenting) 77 B. The Best (Missed) Opportunity for Demosprudential Dissent: Crawford v. Marion County Election Board 82 1. How a Dissent's Content Can Motivate Ordinary People 92 2. Models for Organizing: Possibilities Post-Crawford 98 (a) The Rhode Island Reenfranchisement Campaign 99 (b) The Post-Crawford Campaign Against Voter IDs in Missouri 101 IV. IMPLICATIONS OF DEMOSPRUDENCE THROUGH DISSENT 111 A. Democracy-Enhancing Potential of Deliberative Accountability 111 1. Constitutional Authority 111 2. Popular Will 112 3. Public Education About Minority Views 115 4. Democratic Accountability and the Law/Politics Divide 116 B. Challenges 117 1. Axis of Homogeneity 117 2. Goal of Unanimity 119 3. Problem of Dead-Hand Control 121 C. Critiques 123 V. CONCLUSION 126 PROLOGUE It is morning, June 28, 2007, in the august amphitheater of the United States Supreme Court. Three prominent black civil rights lawyers wait expectantly. (1) They, along with members of the press and public, are here to bear witness to the Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1. (2) The case involved two cities separated by thousands of miles: Seattle, Washington, and Louisville, Kentucky. Local communities in these far-flung locales had voluntarily attempted to integrate their public schools. (3) On this, the last day of his first full Term, Chief Justice John Roberts gavels the room to order. He then strikes down the plans in a matter of sentences. On behalf of himself and four colleagues, he declares Seattle's and Louisville's voluntary school integration plans unlawful because they consider race as a factor in student assignment. …

Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties

Abstract: Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution's declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as the other two categories of norms specified in the clause - federal statutes and the Constitution itself.The sole exception to this rule is for treaties that are non-self-executing in the sense contemplated by the Court in Foster v. Neilson. The concept of a non-self-executing treaty fits uneasily with the Supremacy Clause, as reflected in the common but untenable view that non-self-executing treaties lack the force of domestic law. According to Foster, a non-self-executing treaty is not enforceable in the courts because it is addressed to the political branches. But determining which treaties are so addressed has been challenging. Treaties generally leave the question of domestic implementation to the domestic laws of the states-parties, and our domestic law (the Supremacy Clause) directs judges to give them effect. The author argues that the Supremacy Clause establishes a default rule that treaties are directly enforceable in the courts like other laws, rebuttable only by a clear statement that the obligations imposed by the treaty are subject to legislative implementation.If the stipulation had to appear in the text of the treaty, the clear statement rule would present problems for U.S. treaty makers seeking to control the domestic consequences of multilateral treaties. To address this problem, the treaty makers have developed a new form of clear statement, the "declaration" of non-self-execution. However, scholars have questioned the compatibility of such declarations with the Supremacy Clause. The author concludes that the treaty makers have the power to limit the domestic effects of treaties through declarations of non-self-execution. On the other hand, if the Constitution were understood to establish a default rule of non-self-execution, declarations of self-execution would stand on more tenuous ground. Thus, a default rule of self-execution is not only more consistent with the constitutional text and structure and with Supreme Court precedent, it is also normatively attractive because it leaves the treaty makers with the power to control the domestic consequences of the treaties they conclude.

Foreword: Constitutions and Capabilities: "Perception" against Lofty Formalism

Abstract: What are people able to do and to be? And are they really able to do or be these things, or are there impediments, evident or hidden, to their real and substantial freedom? Are they able to unfold themselves or are their lives, in significant respects, pinched and starved? What about their environment--material, social, and political? Has it helped them to develop their capacities to be active in important areas of life? If people are like Pindar's vine tree, is their environment more like a rich soil tended by wise and just gardeners, or more like an arid soil tended by indifferent gardeners, or gardeners with a restricted conception of their task? More specifically, to focus on just one part of our larger question that touches on constitutional law: How have the basic constitutional principles of a nation, and their interpretation, promoted or impeded people's abilities to function in some central areas of human life? Does the interpretation of constitutional entitlements yield real abilities to choose and act, or are the constitution's promises more like hollow verbal gestures? The idea that all citizens in a nation are equally entitled to a set of substantial preconditions for a dignified human life has had a lasting appeal over the centuries in Western political and legal thought--less because intellectuals have favored it than because it has great resonance in the lives of real people. Appealing though the idea is, however, many things can go wrong when a nation sets up and interprets political principles that define citizens' basic entitlements. Often, in one way or another, citizens are less like substantially free people, who can choose to act in the ways most pertinent to human dignity, than like prisoners, unable to select modes of activity that are central to a life worthy of human dignity. This happens most obviously when a regime represses choice across the board, curtailing many of the entitlements that are traditionally thought central to such a life. Sometimes, however, imprisonment is only partial. It does not extend across the entire range of central entitlements, and yet citizens are like prisoners in at least some areas of life--as, for example, when a regime that supports some central opportunities curtails the freedom of religion or the freedom of speech. Sometimes, imprisonment is partial in a different way: only certain groups are affected. Some (privileged) people are free to select the core set of valuable functions, while other people are not--as, for example, when a hierarchical constitution accords basic entitlements to men and not to women, to whites and not to blacks, to the rich and not to the poor. Sometimes, these two types of partial imprisonment intersect, as when a regime treats blacks and whites, women and men, equally with respect to voting rights, but denies them equal educational or employment opportunities. Sometimes, imprisonment is subtle, almost hidden: the words in a nation's constitution may be promising, extending basic entitlements to all citizens on a basis of equality, but the interpretation of these entitlements is so narrow that groups of citizens are not really able to select some crucial activities. In name, they are equally free, but not in actuality. For example, a group of citizens might have rights to free speech and political participation, but be deprived of educational opportunities that are necessary to exercise those rights on a basis of equality with others. Or they might have the freedom of religion in name, but be unprotected against some common assaults against their equal dignity as citizens with diverse religious (and non-religious) views of the good life. Or they might be guaranteed protection against discrimination on the basis of sex, but discover that their legal entitlements have been interpreted in such a way as to render the meaningful exercise of that right extremely difficult. …

The End of the Globalization Debate: A Review Essay

Abstract: CAPITAL RULES: THE CONSTRUCTION OF GLOBAL FINANCE. By Rawi Abdelal. Cambridge, Mass.: Harvard Univ. Press. 2007. Pp. xi, 304. $49.95. IN DEFENSE OF GLOBALIZATION. By Jagdish Bhagwati. New York: Oxford Univ. Press. With new afterword, 2007. Pp. xiii, 330. $16.95. TERRITORY, AUTHORITY, RIGHTS: FROM MEDIEVAL TO GLOBAL ASSEMBLAGES. By Saskia Sassen. Princeton, N.J.: Princeton Univ. Press. 2006. Pp. xiv, 493. $37.95. MAKING GLOBALIZATION WORK. By Joseph E. Stiglitz. New York: W.W. Norton & Co. 2006. Pp. xxv, 358. $16.95. Reviewed by Robert Howse * I. INTRODUCTION Since the end of the Cold War, scholars and citizens, politicians and pundits, have been trying to discern and define the structures and tendencies of a new world order. We bear witness to rapid and complex change: new threats and conflicts emerge just as old ones return and resurge unpredictably. Climate change; terrorism; the rise of religion as a global force; the ascent of China as an economic power; the Internet: how do we grasp the full implications of each for our lives today and tomorrow? The notion of globalization has emerged as one of the predominant conceptual constructs for understanding the tendencies of our age. Its range of meanings in our discourse is well captured in a recent definition by the philosopher Jurgen Habermas: By "globalization" is meant the cumulative processes of a worldwide expansion of trade and production, commodity and financial markets, fashions, the media and computer programs, news and communications networks, transportation systems and flows of migration, the risks generated by large-scale technology, environmental damage and epidemics, as well as organized crime and terrorism. (1) Significantly, Habermas leaves out of his definition the globalization of law. His omission reflects the general assumption--quite likely incorrect or at least too simplistic--that law's role is to react to globalization as a given force, and that law has not itself been an element in that force. (2) At the same time, the breadth of Habermas's definition raises the question of whether "economic globalization" ought to be analyzed separately, in the idioms of economics, as Jagdish Bhagwati does in In Defense of Globalization, or whether, as Saskia Sassen suggests in Territory, Authority, Rights, it is through understanding the many links between the economic and other dimensions of globalization that we will grasp the ways in which structures of human order are being recast globally. In popular discourse, globalization is much more than something that explains and begs to be explained at the same time: it is a magnet for a range of deeply felt hopes and fears, and still produces intense polemics "for" and "against." Many of us, though, can feel both a sense of loss and disorientation from the collapse or erosion of familiar structures fixed within the territorial nation-state model of human organization, and exhilaration at new possibilities of connectedness and human flourishing. Already by the end of the Cold War, the old struggle between right and left over the governance of the economy and the redistribution of wealth within the advanced liberal democracies had yielded to a new pro-market consensus. The center-left embraced many of the center-right critiques of the postwar regulatory and welfare state as inefficient, wasteful, and dependency-inducing, and sought to pursue traditional progressive values through a more economically liberal (in the sense of pro--free market) approach to governance of the economy. (3) Throughout much of the political spectrum, support declined for command-and-control regulation, trade protection and capital controls as instruments of progressive governance that ensured the state's ability to maintain a stable and fair social contract with business, labor, and the disadvantaged. …

Valuing Laws as Local Amenities

Abstract: TABLE OF CONTENTS I. INTRODUCTION 1274 II. THE HEDONICAPPROACH 1280 A. How the Equilibrating ProcessWorks 1281 B. More Complex Laws 1290 1. Laws that Affect Production Costs, Product Demand, and Labor Productivity or Supply 1291 2. Laws that Affect Supply of or Demand for Housing 1293 3. Laws that Exclusively Benefit Longtime, Pre-Law Residents 1297 C. How Informative Is the Hedonic Measure? 1298 1. Limitations 1298 (a) Limitations Common to the Conventional Approach 1298 (b) Limitations Addressed by Refinements 1301 (c) Fundamental Limitations 1307 2. Alternatives to Hedonic Measure 1309 3. Advantages of the Hedonic Approach 1311 III. EMPIRICAL EXAMPLES 1313 A. Data 1313 1. Housing Prices 1313 2. Wages 1314 3. Laws 1314 B. Empirical Model 1317 C. Interpretation of Preliminary Results 1317 IV. CONCLUSION 1330 I. INTRODUCTION The value of a law to a jurisdiction can be judged by the extent to which it either raises short-run housing prices and lowers short-run wages or raises the long-run, aggregate value of residential land in that jurisdiction. (1) This may seem an odd way to assess the welfare effect of a law. After all, higher housing prices and lower wages are thought to be bad outcomes, not good ones. But the proper way to understand these changes is as signals of positive outcomes, not as positive outcomes themselves. They indicate that something good has happened in the community. Housing prices go up because more people want to live there. Wages go down because more people want to work there. Phrased more formally, higher housing prices and lower wages are how markets ration an attractive local public good or amenity. Indeed, the increase in housing prices combined with the reduction in wages provides a measure of how much people are willing to give up to enjoy the amenity. In the long run, the supply of houses and jobs may increase in response to the rise in housing prices and fall in wages, but the maximum amount of land available to residential development is constant. Therefore, people's willingness to pay eventually settles into the aggregate value of residential land in the jurisdiction. Conventional economic thinking recognizes this when it comes to estimating the social value of a new park or a better school. The same logic, I argue here, applies when the local public good (2) is anything from a better tort system to smarter rules regarding capital punishment. This is, of course, not the standard practice. Under the conventional approach, the welfare effect of a law would be measured by evaluating the law's effect on specific related behaviors. For example, a three-strikes law would be evaluated by its effect on homicides; (3) a unilateral divorce law by its impact on rates of domestic violence (4) or divorce; (5) and a tort reform by its impact on insurance payments (6) and accidents. (7) These are certainly sensible metrics for judging the laws at issue. But each has significant shortcomings relative to measuring the welfare effect of a law by its impact on housing prices and wages or on long-run land values, an approach I call the "hedonic" approach to valuation of a law. …

Second Amendment Minimalism: Heller as Griswold

Abstract: I. INTRODUCTION District of Columbia v. Heller (1) is the most explicitly and self-consciously originalist opinion in the history of the Supreme Court. (2) Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning. (3) It would be possible, in this light, to see Heller as a modern incarnation of Marbury v. Madison, (4) at least as that case is understood by some contemporary scholars, (5) and to a considerable extent as Chief Justice John Marshall wrote it. In Marbury, the Court also spoke on behalf of what it took to be the text, structure, and original meaning of the Constitution. (6) On one view, Heller represents the full flowering of the approach that Chief Justice Marshall imperfectly inaugurated--one that has been abandoned at crucial periods in American history. To its defenders, Heller speaks honestly and neutrally on behalf of the original meaning, and it should be appreciated and applauded for that reason. (7) But there is a radically different reading of Heller. The constitutional text is ambiguous, and many historians believe that the Second Amendment does not, in fact, create a right to use guns for nonmilitary purposes. (8) In their view, the Court's reading is untrue to the relevant materials. If they are right, then it is tempting to understand Heller not as Marbury but as a modern incarnation of Lochner v. New York, (9) in which the Court overrode democratic judgments in favor of a dubious understanding of the Constitution. On this view, it is no accident that the five-Justice majority in Heller consisted of the most conservative members of the Court (who were all Republican appointees). Perhaps Heller is, in the relevant sense, a twenty-first-century version of Lochner-style substantive due process, and perhaps it marks the beginning of a long series of confrontations between the Supreme Court and the political branches. On a third view, this characterization badly misses the mark. Heller is more properly characterized as a rerun of the minimalist ruling in Griswold v. Connecticut. (10) In Griswold, the Court struck down a Connecticut law banning the use of contraceptives by married couples, under circumstances in which the Connecticut law was plainly inconsistent with a national consensus. The Court worked hard to support its decision by reference to the standard legal materials, (11) but the national consensus probably provides the best explanation of what the Court did. (12) Perhaps Heller is closely analogous. The Court spoke confidently in terms of the original meaning, but perhaps its ruling is impossible to understand without attending to contemporary values, and in particular to the fact that the provisions that the Court invalidated were national outliers. In this Comment, I contend that the third view is largely correct, and that Heller will, in the fullness of time, be seen as embracing a kind of Second Amendment minimalism. Notwithstanding the Court's preoccupation with constitutional text and history, Heller cannot be adequately understood as an effort to channel the document's original public meaning. The Court may have been wrong on that issue, and even if it was right, a further question remains: why was the robust individual right to possess guns recognized in 2008, rather than 1958, 1968, 1978, 1988, or 1998? And notwithstanding the possible inclinations of the Court's most conservative members, Heller is not best seen as a descendent of Lochner. In spite of its radically different methodology, Heller is far closer to Griswold than it is to Marbury or to Lochner. No less than Griswold, Heller is a narrow ruling with strong minimalist features. And if this view is correct, then the development of the gun right, as it is specified over time, will have close parallels to the development of the privacy right. …

Heller, HLR, and Holistic Legal Reasoning

Abstract: Well, the show sure ended with a bang. On the last day of the Term, the Court--for the first time ever, by a single vote, over vigorous dissents, and against the weight of circuit precedent--wielded the Second Amendment to strike down a federal gun control measure and to declare a robust individual right to use firearms for self-defense. Experts began parsing District of Columbia v. Heller (1) within hours of the Court's pronouncement. Over the ensuing weeks, sophisticated commentary blossomed in a rich profusion of blogs, wikis, posts, threads, and chats. Now, nearly five months after the decision, does anything remain to be said? In the Internet Age, does anyone still read law reviews? They seem so twentieth-century. Yet the Justices apparently still do look at law reviews. Almost half the cases decided with signed opinions last Term cited at least one law review article. (2) In Heller itself, the various opinions invoked over a dozen articles, including a 1940 classic from the Harvard Law Review. (3) Indeed, last Term was a banner year not just for gun wielders like Dick Heller, but also for the editors of the Harvard Law Review. All told, the Justices cited fifteen different HLR articles--more than double the article count of any other legal periodical. (4) Perhaps the Court pays particular attention to HLR because HLR has traditionally returned the compliment, famously beginning every Volume with an entire issue devoted exclusively to the Court's most recent work product and typically featuring in the remaining seven issues a rich smorgasbord of scholarship suitable for judicial consumption. Remarkably, four former HLR staff members--John Roberts, Antonin Scalia, Ruth Bader Ginsburg, and Stephen Breyer--now sit on the very Court they once helped analyze as student editors. No other law review can point to four alums who have ever served on the Court, much less four former editors sitting together as Justices. And the next round of Justices may well be picked by Barack Obama, who first rose to national attention as HLR President. (5) Nor is HLR's influence confined to those who once served on this review. Justice Stevens, for example, though not a Harvard Law Review alum, is evidently a loyal reader. Not only did he cite to HLR in Heller itself, but during the Term as a whole he invoked almost as many HLR articles (seven) as were cited by all his colleagues combined. In this Comment, I refract Heller through the prism of HLR by paying particular attention to the aforementioned HLR alums and HLR's loyal reader, Justice Stevens. (6) I conclude that no member of the HLR group offered a sufficiently holistic account of certain important methodological and substantive issues implicated by the Heller debate. Methodologically, no member of the HLR group persuasively explained how the Court should proceed when established case law collides with the clear meaning of the Constitution itself. Substantively, members of the HLR group scanted various amendments beyond the Second even though three of these amendments--the Ninth, the Fourteenth, and the Nineteenth--are in fact key to a full understanding of what "the right of the people to keep and bear arms" properly means in America today. The HLR group's failure to highlight the Fourteenth Amendment is particularly notable because this failure has a fascinating history starring the Harvard Law Review itself and leading mid-twentieth-century figures closely associated with this periodical. I. THE DUELISTS: SCALIA AND STEVENS In 1959-1960, Antonin Scalia served as Notes Editor for Volume 73 of the Harvard Law Review. (7) In 2008, he delivered what history may well deem his most memorable opinion, writing for a five-Justice majority in the biggest Second Amendment case ever decided. John Paul Stevens, the Court's Senior Associate Justice, wrote the lead dissent for himself and three others. …