Historians (except for the folks who participated in those books) are generally not fans of counterfactuals. In part, that is based on a methodological preference in favor of describing reality rather than speculating. But another reason is that historians tend to be very sensitive about the complexity of events and thus very skeptical about causal arguments of [...]]]> About ten years ago a popular series of books called “What If?” — consisting of a series of essays by historians — came out that looked at key turning points in world or military history and tried to describe plausible counterfactuals.  I’ve often thought that asking that question about law would make for a fun conference.  Proposing the idea, though, points up a major difference between lawyers and historians.

Historians (except for the folks who participated in those books) are generally not fans of counterfactuals. In part, that is based on a methodological preference in favor of describing reality rather than speculating. But another reason is that historians tend to be very sensitive about the complexity of events and thus very skeptical about causal arguments of any sort.

Lawyers, by contrast, use counterfactuals all the time.  After all, “but for” causation or “harmless error” is asking a jury or court to figure out alternative paths for litigation.  In part, this is justified because we view causation as a more probable than not question.  A looser standard for causation leads to a greater willingness to think about what might have occurred if the facts were changed.

Once again, this raises the question of what a legal historian should do.  My own work is chock full of counterfactual experiments, which may explain why some historians might not like my scholarship. Straightforward legal history is important and worthwhile, but it seems to me that law (especially constitutional law) is more contingent than we generally think, and thus we need more work exploring lost paths.  There are some terrific examples — Risa Goluboff’s book on “The Lost History of Civil Rights” comes to mind — but that’s not enough.

A legal historian (a role I play on a semi-regular basis) faces a problem that is common to folks who straddle different disciplines.  Unlike real historians, there is an expectation that legal historians should make their work relevant for current issues.  When I present papers or try to make them more marketable for law reviews, there is always a temptation — that I don’t always resist — to have a final section that tries [...]]]> This weekend I attended the Annual Meeting of the American Society of Legal History, which is always a great event.  The best line came from Jack Rakove, who said that the search for original understanding in constitutional law is increasingly an inquiry into what “Joe the Ploughman” thought in 1787 or 1791.

A legal historian (a role I play on a semi-regular basis) faces a problem that is common to folks who straddle different disciplines.  Unlike real historians, there is an expectation that legal historians should make their work relevant for current issues.  When I present papers or try to make them more marketable for law reviews, there is always a temptation — that I don’t always resist — to have a final section that tries to draw lessons from the history and apply them to current doctrine.  If you don’t do that, then lawyers will often ask, “What’s the point of this?”  If you do take this on, though, then those with a history training will say that you are doing law office history.  I’ve never come up with a great solution to this problem,

I’ll talk about a related issue — the use of counterfactual history — in a post tomorrow.

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes [...]]]> By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you!

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes shorn of scarlet and fur. And no wigs. (This BBC report shows the justices in their new robes, which at least have the decency to include healthy dollops of gold braid.) Why don’t they just throw out the concept of precedent, adopt the Code Napoleon, and be done with it. Nor, alas, is the rot confined to the top of the judiciary. Through out the UK, it would seem, judicial horse hair and scarlet are one the wane.

American judges and barristers lost their wigs thanks to the wicked influence of Thomas Jefferson. The hypocrite sage of Monticello, of course, was an awful Francophile at a time when being a Francophile meant defending the guillotine. For him, wigs and scarlet were English (and therefore evil), medieval (and therefore evil), and associated with the common law (and therefore evil). In the new Empire of Liberty that he envisioned for America they had no place. I suspect that his hope was that the common law would be out as well, to be replaced by some hideously rationalized Enlightenment code.

In the wake of the election of 1800, Jeffersonianism was ascendant and any hope for proper judicial and legal regalia in the United States died. Blackstone, Coke, and Marshall proved powerful enough to preserve the common law, even if we lost forever is pageantry. Rather Jefferson and his minions replaced it with a spare classicism — Roman looking court houses, plain “republican” robes, etc. — whose aesthetic cannot help but strike a jarring note against the law that it purports to represent. I suppose that as between losing the common law and losing its trappings, America managed to opt for the lesser of too evils. Still, I can’t help but feel the loss.

Why, in the name of all that is holy, however, should the UK Supreme Court abandon them. I realize, of course, that in an enlightened post-modern age a certain amount of national self-loathing is de rigueur. Penance for the sins of empire and all that. Fair enough. But surely at the judicial apex of the birthplace of the common law, one may take a stand for they symbols of tradition and continuity without embarrassment. The press reports cited by Chris suggest that the motivation for this particular judicial outrage was the need to “modernize” the English law (and given that Scotland enjoys its own legal tradition with its own forms of fancy dress, this is ultimately an English issue). This is a silly justification. There is nothing that prevents a barrister with gown and wig from presenting perfectly cogent and modern arguments about the proper treatment of credit derivatives or bank capitalization regulations. Likewise, there is nothing that keeps a judge clad in scarlet and ermine from protecting the rights of oppressed minorities. Indeed, such decisions and arguments gain power and legitimacy from nesting themselves within a physical pageant that celebrates its connection and continuity with the past. A rapidly changing society that tosses an ultimately costless method of retaining some emotive and symbolic stability, in my opinion, makes a foolish decision.

Shame on the Brits!

Pick a pair of U.S. states (or multiple pairs) that differ widely in their politics.  (Say Mississippi and Vermont, or Utah and Hawaii).  Then look at each State Supreme Court’s cases interpreting its own Constitution.  How often do those cases cite the “foreign law” from the ideologically opposed state?

This would be helpful information.  Nobody would [...]]]> It is not breaking news to note that a significant debate is underway about whether foreign law should be used to read our Constitution.  Separating this jurisprudential issue from the substantive controversies that often accompany the debate (on capital punishment, for example) is difficult and often breaks down into a liberal/conservative smackdown.  So I’d like to suggest a possible line of neutral research.  This might be a good student note topic.

Pick a pair of U.S. states (or multiple pairs) that differ widely in their politics.  (Say Mississippi and Vermont, or Utah and Hawaii).  Then look at each State Supreme Court’s cases interpreting its own Constitution.  How often do those cases cite the “foreign law” from the ideologically opposed state?

This would be helpful information.  Nobody would argue that it is inappropriate for a state court to cite another state court in a constitutional context because we are one nation.  But it would be interesting to learn whether this practice is common.  Critics of citing foreign law in the U.S. Supreme Court argue that the practice is wrong in part because our citizens did not consent to the processes that produce those decisions and often have different values from a country like France.  The same argument, though, could be made if the Texas Supreme Court, for example, cites a decision from Maine.  (Note that this study would work best in states where amending the constitution is relatively hard.)  If states like Texas routinely cite states like Vermont in constitutional cases (not garden-variety common law cases), then the argument against doing so at the federal level would be undermined.  And vice versa.

Not so it would seem.

The country of Samoa (not to be confused with the U.S. territory American Samoa) is about the switch from driving on the right side of the road to driving on the left side of the road, reports the WSJ.  Somoa is much closer to New Zealand and Australia than to the United [...]]]> Generations of law professors have always insisted that there is some class of rules where the particular content of the law is less important than that we have some clear answer to a question. The paradigmatic example is a rule specifying which side of the road one ought to drive on. The decision, so the argument goes, is entirely arbitrary so long as we all pick a side.

Not so it would seem.

The country of Samoa (not to be confused with the U.S. territory American Samoa) is about the switch from driving on the right side of the road to driving on the left side of the road, reports the WSJ.  Somoa is much closer to New Zealand and Australia than to the United States.  Apparently over 100,000 Samoan expats live in both countries and they want to be able to send their old cars home to relatives in the islands.  By switching sides, the government hopes to facilitate the flow of cheaper, hand-me-down cars into the country.  Interestingly, however, the article argues that the original American choice to drive on the right hand side was not as arbitrary as the law profs would have us believe:

American drivers of horse-drawn carriages tended to ride their horses, or walk alongside them, on the left-hand side of their vehicles so they could wield whips with their right hands. That made it necessary to lead carriages down the right side of the road so drivers could be nearer the center of the street.

The article doesn’t explain why it is that the Brits opted for the left hand side.  Maybe they are all left handed, or perhaps they learned to use a whip with their right hand as part of some sort of public school hazing ritual.  Isn’t there something in a Dickens novel about that?

Perhaps one can always find policy rationales for the substantive content of rules after all.

(ht: Moin Yahya of the University of Alberta Law School)

Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and many prescribe its use, especially in tort law, where such analysis is most successful. Skeptics question the method’s descriptive accuracy and normative appeal, compared to traditional legal analysis, also making particular contributions to tort law.

While scholars use theoretical, philosophical and doctrinal techniques to defend positions, my new Article’s novel evaluation considers how the methods fare in opinions of two judicial exemplars [...]]]> To debate over traditional versus economic analysis in law (aka as fairness v. welfare, deontology v. efficiency and normative v. utilitarian), in the coming law review submission season, I’ll submit evidence from torts opinions of Judges Benjamin Cardozo and Richard Posner (I reported other aspects of this research here and here).

Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and many prescribe its use, especially in tort law, where such analysis is most successful. Skeptics question the method’s descriptive accuracy and normative appeal, compared to traditional legal analysis, also making particular contributions to tort law.

While scholars use theoretical, philosophical and doctrinal techniques to defend positions, my new Article’s novel evaluation considers how the methods fare in opinions of two judicial exemplars of the contending conceptions: Cardozo, quintessential traditionalist, and Posner, avatar economist.

Comparative analysis of those opinions, the most ubiquitous in current Torts casebooks, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law. Selections from my Article’s Introduction follow.

Cardozo’s distinctiveness is grand style epitomizing traditional method. During a 24-year judicial career, Cardozo displayed a pragmatic sensibility blending intuitions of substantive justice with thick doctrine incorporating economic, moral and social factors. In Isaiah Berlin’s terms, Cardozo was the fox who knew many things. Cardozo frequently shifted between doctrines, rendering complex opinions that demonstrate the capacity, richness and limitations of traditional legal analysis.

Posner’s distinctive method is economic analysis of law, a contemporary mode of justification he made famous, both as judge and scholar. It is such a signal characteristic of many Posner opinions that he may be classified, in Berlin’s terms, as the hedgehog to Cardozo’s fox: he knows one big thing. Of course, during his 27-year judicial career, Posner has also shown legal skills of a doctrinal craftsman and shrewd rhetorician. His opinions typically take a linear approach, reflecting the orderly logic of contemporary economic analysis.

Cardozo’s torts opinions used traditional legal concepts, like reasonableness, foreseeability and duty. These perform admirably, if imperfectly, to analyze, classify and explain, despite lacking formal economic content. Posner’s torts opinions reference the same legal concepts but displace, adjust or rationalize them using modern economic concepts, like cost-benefit matrices, incentive effects and least-cost avoider models. This approach sometimes enriches, but more often impoverishes, analysis, classification and explanation.

These contrasts are revealed by evaluating their opinions addressing a range of problems in tort law, from basic issues in negligence, to intermediate concerns of liability, to advanced challenges at tort law’s borders with contract law.

Part I, on basic negligence, explains how Cardozo’s practical reasoning led him to endorse jury power to review conduct under an open-textured negligence standard related to reasonable care. Cardozo emphasized everyday experience, custom and natural forms of behavior. Posner brings to negligence analysis a rigid formulaic economic tool, resembling a rule not a standard. Thin compared to traditional legal analysis, it measures and compares defined categories of costs and benefits whose abstractness can disregard factors traditional legal analysis stresses.

True, Cardozo included economic insights but they never overwhelmed analysis and moral intuitions add to his opinions. Though Posner tries to show how Cardozo’s moral reasoning is co-extensive with his own economic reasoning, acute differences in premises, method and result mean melding the two would weaken Cardozo’s opinions. The limited capacity of Posner’s formulaic approach appears in how it is inapposite to many issues in negligence cases.

Part II, addressing intermediate tort law problems, shows that Cardozo’s rhetoric reinforced legal analysis while Posner’s economics can be antagonistic to it and how Cardozo’s thick doctrinal framework enabled accommodating contending values while Posner’s framework exalts economic efficiency. It is difficult to improve on some of Cardozo’s traditional legal analysis, such as limiting liability under principles of duty and foreseeability.

Posner unwittingly reflects this in his opinions, which are stronger when emphasizing traditional legal analysis than when extensively supplemented by economic thought. Traditional legal analysis has a peerless capacity to respond to changing socioeconomic conditions. This is not to say economic analysis is anemic, as it can reinforce traditional legal principles, such as American law’s preference for liability based on fault over strict liability.

But, as Part III on advanced problems illustrates, traditional legal analysis is indispensible, and contemporary economic analysis cannot supplant it. Venerable legal principles like duty enable navigating, if imperfectly, challenges such as when third parties may enforce tort or contract claims against contract parties. Economic explanations, like least-cost avoider models, for law’s traditional approach, can help justify related decisions but cannot resolve disputes without the tools traditional legal analysis provides.

Accordingly, comparative analysis of leading torts opinions of these exemplary judges provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis. The Article’s Conclusion explains this evidence in terms of how traditional legal analysis enables comprehending complex human reality while contemporary economic analysis oversimplifies it.  

I’ve received extensive comments on previous drafts and would still welcome readers willing to provide scholarly comments on the latest.  Please email me if interested: lacunningham@law.gwu.edu.

I tried to put together a list of what statutes might qualify for this exalted status.  Here’s what I came up with:

1.  The Judiciary Act of 1789

2.  The Civil Rights Act of 1964

3.  The Voting Rights Act of 1965

4.  The Federal Reserve Act of 1913

5.  The Administrative Procedure Act of 1946

6.  The Social Security Act of 1935

7.  The Pendleton Act (as amended by the Hatch [...]]]> There’s been a lot of discussion recently about the idea that certain statutes (whether you call them canonical, super-statutes, or super-duper statutes) are now part of the Constitution.  This idea comes from the British Constitution, where certain statutes (The Reform Act of 1832, the 1911 Parliament Act) are considered fundamental and not subject to repeal even though formally they could be.

I tried to put together a list of what statutes might qualify for this exalted status.  Here’s what I came up with:

1.  The Judiciary Act of 1789

2.  The Civil Rights Act of 1964

3.  The Voting Rights Act of 1965

4.  The Federal Reserve Act of 1913

5.  The Administrative Procedure Act of 1946

6.  The Social Security Act of 1935

7.  The Pendleton Act (as amended by the Hatch Act)

Here are some other (less convincing) possibilities:

1.  The Fair Labor Standards Act

2.  Taft-Hartley

3.  The Sherman Anti-Trust Act

4.  The Clean Air Act , Clean Water Act, and CERCLA

5.  The Americans with Disabilities Act

Perhaps I’m missing some.  I’d be curious to hear your thoughts.  The interesting thing that I noticed is that it looks like all of these super-statutes passed by supermajorities in Congress.  If true, this undermines the argument that the composition of the Senate is unreasonably skewed or is prevents major legislation (i.e., universal health care) from being enacted.  A better explanation is that political elites shrink from making these sorts of groundbreaking changes unless they have massive support, which gives credence to the notion of their “quasi-constitutional” status.

There are two reasons why this should be of concern.  First, science can be . . . er . . . wrong.  It is more accurate to say that science is always incomplete, but sometimes that incompleteness can be so serious that the conclusions drawn are unreliable.  Second, science cannot answer ethical issues. Something could well be scientifically valid but morally wrong.  Here are a few examples:

At the [...]]]> During the Bush Administration, there was a lot of concern expressed about how religious faith was distorting policy judgments on issues such as stem-cell research.  I think these fears were overblown (with apologies to Andrew Sullivan).  What surprises me, though, is that people do not talk much about the opposite problem — how science can distort the law.

There are two reasons why this should be of concern.  First, science can be . . . er . . . wrong.  It is more accurate to say that science is always incomplete, but sometimes that incompleteness can be so serious that the conclusions drawn are unreliable.  Second, science cannot answer ethical issues. Something could well be scientifically valid but morally wrong.  Here are a few examples:

At the turn of the twentieth century, there was a broad consensus that racism was scientifically valid. This finding was used as a justification for colonialism, segregation, the denial of voting rights, and all sorts of other practices.  In effect, if you supported racial equality at that time, you were an “anti-science” person making decisions based on something irrational like faith.  Later, of course, this science on race was discredited.  

A few decades later, many serious scientists were doing research on eugenics.  This was also embraced by policymakers who derided those who fought for disabled rights as “anti-science.” Holmes was the most notable example of this attitude in his opinion in Buck v. Bell upholding the sterilization of what he called “imbeciles.”  The only dissenter in Buck (without opinion) was Justice Pierce Butler.  Why did he dissent?  Probably because he was a devout Roman Catholic.  Did that make him an irrational “theocrat,” to use the modern phrase?

This brings me to the debate about global warming.  While there is no faith-based objection to doing something about climate change, the question is what level of confidence should politicians have in that science before they take significant policy decisions?  I don’t have a good answer to that, though my own conversations with people who study climate change suggest that that field of study is more incomplete than most.  Consider the small sample size.  The Earth is billions of years old, but we only have climate data over a period of thousands or maybe tens of thousands of years.  

The lesson is that caution should be exercised when wrenching changes on energy or regulatory policy are based on current scientific trends.  Sometimes the “anti-science” people are right.

Would readers take a quick poll on famous torts cases and judges stemming from my work “Cardozo and Posner: A Study in Torts” (noted here and here)?    Those judges are the first and second most consequential on tort law measured by opinion frequency in 20 current Torts casebooks.  Both are legendary judges with particular recognition in the law of torts.  

Cardozo’s torts opinions are canonical: 10 appear in the books, 7 in at least 1/4 of them, and all but 1 appear in at least 3 books.  Posner’s opinions enjoy more sporadic interest: 25 opinions appear in the books, only 2 in at least 1/4 of them, and 20 appear in only 1 or 2 books.  

My analysis inter-acts these opinions, in their practical, theoretical and pedagogical contexts, to hypothesize explanations [...]]]>

Would readers take a quick poll on famous torts cases and judges stemming from my work “Cardozo and Posner: A Study in Torts” (noted here and here)?    Those judges are the first and second most consequential on tort law measured by opinion frequency in 20 current Torts casebooks.  Both are legendary judges with particular recognition in the law of torts.  

Cardozo’s torts opinions are canonical: 10 appear in the books, 7 in at least 1/4 of them, and all but 1 appear in at least 3 books.  Posner’s opinions enjoy more sporadic interest: 25 opinions appear in the books, only 2 in at least 1/4 of them, and 20 appear in only 1 or 2 books.  

My analysis inter-acts these opinions, in their practical, theoretical and pedagogical contexts, to hypothesize explanations for this differential status.  A simplified version of the thesis: Cardozo’s traditional doctrinalism, supplemented using old-fashioned rhetoric, wins out over Posner’s contemporary economic supplementation of legal reasoning.  

Out of curiosity, I list below the 10 Cardozo opinions and a sampling of Posner opinions and wonder if readers would comment whether they recognize the opinions and, if so, what stands out about them.

A. BENJAMIN CARDOZO

1.  Palsgraf v. Long Island R.R.

2.  Martin v. Herzog

3.  MacPherson v. Buick Motor

4.  Pokora v. Wabash Railway

5.  Murphy v. Steeplechase Amusement

6.  H.R. Moch v. Rensselaer Water Co.

7.  Ultramares v. Touche, Niven

8.  Adams v. Bullock

9. Wagner v. Internation Railway

10.  Glanzer v. Shepherd

B.  RICHARD POSNER

1. Indiana Harbor  Belt R.R. v. American Cyanamid

2. Haynes v. Alfred Knopf

3. Desnick v. ABC

4. Kemezy v. Peters

5. Wassell v. Adams

6. McCarty v. Pheasant Run

7. Davis v. Conrail

8. Greycas v. Proud

9. Orthmann v. Apple River Campground

10. Stoleson v. United States

NB1: I don’t propose to use resulting information in the article but responses may influence analysis. 

NB2: it may be helpful if commenters say whether they are current/recent law students, lawyers, law profs, or non-law types.

Thanks to those willing to comment!

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is [...]]]> There has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.”  Obama further explained:

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.”  He writes:

What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30″ side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.

Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.

In The Concept of Law, H.L.A. Hart famously observed:

Whichever device, precedent or legislation, is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture.

In these cases, Hart posited that judges have discretion to decide the case either way.  The law simply has nothing to say.  Ronald Dworkin took issue with Hart’s claim that “hard cases” could not be decided by law.  In Taking Rights Seriously, Dworkin argued that “even when no settled rule disposes of the case, one party may nevertheless have a right to win.”  He contended that principles may “incline a decision one way, though not conclusively” and that “in most hard cases there are right answers to be hunted by reason and imagination.”

For a legal positivist following Hart, the 5 percent of cases (the “hard cases”) Obama is talking about have no legal answer.  Obama wants a justice who will decide them in a way he desires.  As Orin posits:

A substantial number of the close cases that reach the Supreme Court involve some sort of power dynamic — employer versus employee, plaintiff versus big company — and Obama wants the judge who will pick the side of the powerless.

For Hart, this is fine — in hard cases, judges are outside the law, so they can’t decide the case based on law.  For Dworkin, the hard cases would require that justices look to principles, and they would not be free to side with their political ideology.   Their empathy might make them inclined to find or interpret principles that favor the powerless, but cases would not be decided by pure ideology.  Orin’s post seems to be viewing Obama’s jurisprudence as legal positivism in the tradition of Hart.

There’s something missing from the Hart-Dworkin debate, which Orin alludes to in his post.  How readily will a justice recognize ambiguity?  Orin raises the concern that the empathetic judge will too readily find cases to be hard.  So instead of finding 5 percent of cases to be hard, an empathetic justice might find a greater precentage to be hard.

In an article I wrote long ago as a law student, I argued that Hart and Dworkin failed to adequately theorize how judges perceive whether a case is hard.  In order to apply rules and precedents, judges must determine whether a case fits, whether it is similar enough to other instances in which the case or the rule applies.  But no two cases are exactly alike.  I wrote:

The level of generality with which a judge perceives the facts of a case has a profound impact on how she interprets these facts. Interpreting the facts involves sifting out the trivial ones and locating the nuggets‑‑those facts which are critical to the decision that must be made. This interpretation is vital to how judges categorize cases, in how judges determine whether a case fits under an general proposition.

We perceive events and situations at varying levels of generality. At a high level of generality, we do not notice subtle differences, but at a more individuated level, we can observe the unique intricacies of each case. For example, we will not notice the differences between two snowflakes unless we examine them closely. As proximity increases, a judge will often become more aware of the imprecision of general legal propositions. For example, in Lorenzo v. Wirth, Judge Holmes, then a state court judge, held that a defendant should not be liable when a plaintiff fell into an open coal hole on the defendant’s property. Holmes declared: “A heap of coal on a sidewalk in Boston is an indication according to common experience that there very possibly may be a coal hole to receive it.” After reading Holmes’ opinion, this appears to be a rather easy case. However, Judge Knowlton, dissenting, supplies a critical fact that Holmes left out: the plaintiff had just come from Spain and had never seen coal put into a cellar through a coal hole. The introduction of more facts makes the case more unique, and thus more difficult to fit into general categories. Indeed almost any case, when viewed at a great distance, when depicted in the most general of terms, will present no difficulties for general legal propositions. As Judge Richard Posner wrote: “The more facts that are stated in an opinion, the easier it is for judges in subsequent cases to distinguish, narrow, confine, and otherwise diminish the scope and impact of the opinion.”

Perhaps the more empathetic judge is one who views cases at a closer level  than the non-empathetic judge.  The non-empathetic judge sees things at a  great level of generality.  The empathetic judge is more inclined to focus on the facts that make cases different and unique.  Empathetic judges are more inclined to put themselves in the litigants’ shoes rather than view the case abstractly and distantly.  Such proximity may incline a judge toward more compassion for litigants, but it need not necessarily do so.  Indeed, empathy in this sense need not be confined to liberal judges.  Justice O’Connor was one who was very inclined to focus on the facts and see cases as different.

Empathy is just one of the components Obama mentioned he was looking for in a justice.  As I’ve discussed in this post, empathy could have two meanings: (1) it could mean judges who decide the 5 percent of hard cases for the powerless.; or (2)  it could mean judges who find more cases to be hard than 5 percent.   The empathetic judge might exhibit a combination of (1) and (2) above or not.  They are different issues after all.

Ironically, empathy in the first sense would not be replacing law with politics as some critics may charge at least not from Hart’s perspective.  In hard cases, the law is silent.

In the second sense, is empathy more akin to lawlessness?  True, in a Hartian perspective, the judge who finds more cases to be hard will find more cases to be beyond the law.  But if those cases are indeed hard cases, then such a judge isn’t being lawless.  In fact, such a judge is being faithful to the law by not twisting it to fit cases it doesn’t fit.

Sadly, the issue gets perverted by the common critique that judges are being lawless or activist.  The issue is much more complicated, and it involves questions in jurisprudence that haven’t been adequately worked out.

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have [...]]]> From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

Even casual basketball fans know that the final minute or two of many basketball games is a choreographed ballet of intentional fouls and foul shots. Players, coaches, fans, and referees have come to expect them. It’s part of the game, like Michael Jordan’s tongue or LeBron James’s talcum powder. In a way, Wright and the Mavericks played by the rules, and they were justifiably upset when the referees didn’t.

In a different, formal way, of course, Wright and the Mavs weren’t playing by the rules at all. Viewed from a third-party perspective (perhaps from the referees’ perspective), Wright’s disappointment and the Mavericks’ outrage seem out of place. Wright broke the rule. Having broken the rule, it seems to me that neither he nor the team has any legitimate expectation regarding the form of his punishment. Why, in other words, should the wrongdoers benefit by stopping the clock) and the victims suffer when the rules are broken? This seems to be the perfect case for the maxim “No harm, no foul.” Wright fouled Anthony but didn’t cause Anthony or the Nuggets any harm. Why reward Wright?

It’s easy to imagine a scenario in which where Anthony and the Nuggets might have a stronger case, even granting the possibility that Anthony might still have made that final shot. If Wright had fouled Anthony recklessly or with an intent to injure Anthony, that is, if Wright acted with a different sort of mens rea, then Wright might have been liable for a flagrant foul (with some interesting jurisprudential twists of its own), and protecting the health or safety of Anthony and similarly situated players, by calling the foul, might well take precedence over the game’s competitive flow. But this grants Anthony a stronger case for punishment, not Wright; we don’t want to encourage Wright to injure Anthony in order to obtain his team’s reward. The punishment in this scenario might be adjusted upward to an extent that it deters the strategic use of flagrant fouls, or it might be deferred until after play has concluded.

I pause here to note Wright’s interest in punishment, which in Kantian or Hegelian terms might flow from Wright’s own status as an autonomous agent.  (I’m answering my (rhetorical) question with assistance from an interesting article by Markus Dubber, The Right to Be Punished: Autonomy and its Demise in Modern Penal Thought, 16 Law & History Rev. 113 (1998). ) It might be said that whether Wright’s foul was flagrant or merely intentional, his claim for punishment is grounded in his claim to status as an autonomous moral agent, intending to bring on himself the full consequences of his actions.  That logic falls apart, I think, on the ground that in context Wright is no autonomous moral actor; he is an agent, or an instrument, of his coach or of the team, or both.  Wright didn’t choose to foul; he was told to foul. 

The more challenging question, it seems to me, is how basketball society should enforce its collective expectations regarding the tactical use of wrongdoing.  A sporting event between two teams is a kind of competitive commons.  Only one team can win the game (usually, and almost always in basketball), but both teams have kind of shared duty to perpetuate the sport.  That involves both playing by formal rules and playing by the informal rules, or the collective expectations of the relevant sporting community.  ”Ordinary” fouling in basketball is a weird way of giving back to the game.  *Tactical* fouling, on the other hand, might be said to do a kind of violence to the particular competition, but it might be part of the scheme of the sport.  Does Wright’s wrong make a right?

Personally, I don’t think so, but I’d be interested in hearing from folks who can think of both analogous and distinguishable situations in other contexts. My instincts here are informed by my deeper experience with soccer, where officiating practices are quite different. As I understand the matter, officiating in basketball, like officiating in football, is supposed to be judgment-free: If the rule is broken, the referee is supposed to call a foul. Everyone knows that basketball and football officials really do exercise discretion, but that discretion isn’t part of the rules or the ethos of the sport. In fact, if the officials in the Mavs/Nuggets game exercised discretion by observing Wright’s intentional foul yet deciding not to call it (cf. the current NHL playoffs), then they may have broken their own rules.

Contrast this with officiating in soccer, which has no “rules.” Soccer has laws, and it is understood by the soccer community that the center referee typically has broad discretion in interpreting and applying those the laws, especially when it comes to penalizing serious infractions with cautions and ejections and when it comes to deciding whether a violation of the laws is serious enough to warrant a penalty kick. In those cases, a penalty is not merely awarded, but earned. Soccer referees have discretion to delay calling a foul or to defer it altogether, if the victimized team retains possession of the ball and an attacking advantage.  Soccer players dispense their own justice, as when one team voluntarily relinquishes the ball to the other after the ball has been deliberately been put out of play in order to enable an injured player to be treated.  The team that stops play is entitled to the return of the ball – by universal custom, not by law or order of the referee.

Soccer and basketball are, in other words, different sorts of sporting commons.  Soccer seems to be governed by equity, and basketball seems to be governed by law. My critique of the NBA’s post-game reversal of Wright’s  intentional foul non-call involves applying equitable maxims to a legal case (“One who seeks equity must do equity”; “One who comes into equity must come with clean hands”; “Equity will not allow a statute to be used as a cloak for fraud”). It’s plausible to object that the civil procedure of sports hasn’t merged the two.  One wonders, however, which model is better suited to adapting a single sport across a multiplicity of cultures.

One of the least attractive aspects of professional training in law is the tendency to equate smartness with judgment, and judgment with virtue.  Though law school doesn’t tend to reward either judgment or virtue, law practice does – and, more significantly, correlates effort and success in a way that the First Year Exam system rarely does.

It’s therefore unfortunate that the debate over Judge Sotomayor’s qualifications to be a Justice has turned to questions about her brilliance.  Rob Kar, in her defense, writes:

“Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood [...]]]>

Oliver Wendell Holmes

One of the least attractive aspects of professional training in law is the tendency to equate smartness with judgment, and judgment with virtue.  Though law school doesn’t tend to reward either judgment or virtue, law practice does – and, more significantly, correlates effort and success in a way that the First Year Exam system rarely does.

It’s therefore unfortunate that the debate over Judge Sotomayor’s qualifications to be a Justice has turned to questions about her brilliance.  Rob Kar, in her defense, writes:

“Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison.”

I’m not sure that Prof. Kar is entirely serious here, but his post was picked up by TPM in its influential roundup, which noted the spreading of the idea that Sotomayor was “too temperamental–and not intelligent enough–” to be a Justice.

There’s plenty wrong with this mindset. Not least, as Bill Stuntz points out, “[intellectual] horsepower alone isn’t enough to produce a lasting impact on the law.” Vivid writing matters, as does judgment, and an appropriate sense of judicial role and temperment.  And, since the Justices are the highest profile lawyers in the country, so does personal history and demographics: lawyers should have professional models, to guide them in making hard decisions in the absence of judicial oversight.

As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible.  So why the focus?  I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc.  We don’t want the smartest justice.  We want the wisest.  Or at least someone who understands that smartness correlates with wisdom about as well as law does to justice.

Bloom highlighted Wordsworth’s struggle with Milton. The thesis is that poetic influence is no simple transfer of method from strong predecessors to strong successors. The process makes life difficult for successors when predecessor influence is so hefty that strong successors cannot absorb it passively. They fight to avoid having predecessor’s power subordinate the successor to the status of imitator.

Strong successors fight the anxiety of influence to secure creative space. The fight is hard, given how predecessors influence not only a successor’s world [...]]]> Harold Bloom’s The Anxiety of Influence is a theory of ambivalence that “strong poets” feel toward influential predecessors and techniques successors use to fight resulting anxiety of influence. One detects hints of a parallel story in Richard Posner’s encounters with Benjamin Cardozo.

Bloom highlighted Wordsworth’s struggle with Milton. The thesis is that poetic influence is no simple transfer of method from strong predecessors to strong successors. The process makes life difficult for successors when predecessor influence is so hefty that strong successors cannot absorb it passively. They fight to avoid having predecessor’s power subordinate the successor to the status of imitator.

Strong successors fight the anxiety of influence to secure creative space. The fight is hard, given how predecessors influence not only a successor’s world but the successor’s contemporaries, equally under the influence that produces the anxiety. Strong successors cannot ignore strong predecessors but cannot passively absorb them. Strong predecessors must be reread (even misread), revised, undone, and completed—and still their shadow persists.

Posner may be Wordsworth to Cardozo’s Milton, or so I speculate in the conclusion to a draft article called Cardozo and Posner: A Study in Torts (companion to my 1995 Cardozo and Posner: A Study in Contracts). Bloom posits four phases of the process strong successors endure to battle the anxiety of influence against their strong predecessors, that I adapt and rename: (1) revising Cardozo down; (2) completing Cardozo; (3) undoing Cardozo; and (4) the haunting Cardozo.

1. Revising Cardozo Down. Posner demotes any conception of Cardozo as a pragmatic judge. Posner allows that Cardozo had good intuitions of substantive justice and wrote well. But his opinions suffered from “plummy” rhetoric and “characteristic stylistic and analytic flaws.” The main one was the “substitution of words for thought.” Many Cardozo opinions are famous for stylistic reasons Posner says, like how they are short on facts, enabling longer shelf life because less easily distinguished by later lawyers and judges. He sniffs at Palsgraf, MacPherson, Wagner and Glanzer.

All this amounts to something of what Bloom called a swerve. It takes Cardozo out of positions to which others had accustomed him. Cardozo is seen as a pragmatist. His use of words is classified as a rhetorical gift, though critics share the view that it can be ornate. But to say there is a lack of thought is unusual. The fame of Cardozo’s opinions is not routinely attributed to style or handling of facts.

2. Completing Cardozo. Having revised Cardozo down, Bloom’s analysis predicts that Posner would show how to complete the strong predecessor judge. Posner offers economic analysis as the tool Cardozo lacked and that would complete him and that Posner brings to the courthouse. Most generally, Posner credits Cardozo’s intuitions of substantive justice but says he “principally lacked . . . an incisive framework . . . for policy analysis such as modern economic analysis provides.”

Posner shows how Cardozo’s opinion could have been strengthened by adding economic analysis. He shows them to be “proto-economic analysis,” incomplete, but with great promise, to be improved by rigorous application of the Hand formula, formal cost-benefit calculus, or linking moral impulses to commercial expectations and capacity for self-protection.

This is an exercise in what Bloom calls “completion” to the extent one could accept Cardozo’s opinions on their own, strong enough. Certainly they were durable opinions before economic analysis of law achieved its commanding status and remain durable opinions decades since that achievement. It is not obvious that the opinions would actually be stronger by add Posner’s suggestions.

3. Undoing Cardozo. Bloom’s third phase involves a strong successor making a discontinuity break with the strong predecessor to enable a new kind of product that the latter could not have written. Evidence is Posner’s sympathy that Cardozo did not have available to him the tools of modern economic analysis: “He can hardly be blamed for failing to use tools developed long after his death,” Posner said of Cardozo. Posner helped to invent those tools in the academy and honed them on the bench. Posner undoes Cardozo by offering a kind of opinion that Cardozo could not have.

In Bloom’s terms, this is a killing of Cardozo’s theory of law, judging and even torts. It is also something of an overstatement, given how Posner hastens to add that Cardozo showed the proto-economic insights Posner would later sharpen. In addition, given the frequency with which Posner would concur or does concur with Cardozo’s results, it is not obvious that these are substantive, functional or productive criticisms. They are criticisms of style, tools and framework. By acknowledging, if undervaluing, the roles of rhetoric and even morality in Cardozo’s ouvre, this amounts to what Bloom calls “kenosis,” an “emptying of theory” from Cardozo’s jurisprudence by highlighting the absence of thoroughgoing economic analysis.

4. The Haunting Cardozo. Despite, or maybe consistent with, a strong successor’s battle with the anxiety of influence through revising down, completing and undoing, the strong predecessor always haunts, especially in the successor’s strongest performance, Bloom’s theory says. For Posner, the haunting of Cardozo appears in several cases, especially where Posner draws on famous Cardozo opinions to discover new uses for them. Not content with Cardozo’s precedents as they sat on the shelf, Posner adds economic analysis. But this does more to cast Cardozo’s long doctrinal shadow over Posner’s economic virtuosity than to sustain the effort to revise, complete and undo Cardozo.

Despite succesful revising, completing and undoing , Bloom warns that that the strong dead return, even showing up in their strong successor’s work. Posner writes like Cardozo sometimes and even shows the occasional moralizing tendency. Cardozo would handle many Posner opinions in ways similar to how Posner handles them—in result if not in economic reasoning or adornment. In these cases, Posner may do what Bloom says only strong successors can: “achieve a style that captures and oddly retains priority over their precursors, so that the tyranny of time almost is overturned, and one can believe, for startled moments, that they are being imitated by their ancestors.”

Notes

HT/Inspiration: Charles M. Yablon, Grant Gilmore, Holmes, and the Anxiety of Influence, 90 Nw. U. L. Rev. 236 (1995) (applying Bloom’s theory to Gilmore’s Death of Contract).

Posner quotes are from his book, Cardozo: A Study in Reputation.

First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: [...]]]> I take up this topic with some hesitation because, to be honest, I would rather talk about something less depressing. Furthermore, I am not sure that I have anything to add to what has already been said about our treatment of high-level detainees (take a look at Sonja’s post below, for example). Nevertheless, I feel compelled to say something following the release of these memos. Putting aside the policy aspects of what was under consideration (if that is possible), three things stand out to me.

First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: (1) torture requires the infliction of severe pain or suffering; (2) when our trainees were subjected to these techniques they did not suffer severe pain or suffering; therefore (3) using this techniques on detainees is not torture. The problem is that point #3 does not follow from #2. As the first Bradbury memo concedes, our troops know that they are just undergoing training and will not be harmed when the techniques are applied to them. The detainees have no such assurance. This is a pretty important distinction, but even after this concession the memos continued to use our training experience to evaluate the severity of the interrogation techniques.

Second, the memos often erroneously treat the definition of torture as an issue of first impression. Framed in that way, the techniques in question are hard to assess. If I starting asking, “Does this cause severe pain?” or “Does that cause severe pain?” reasonable people would disagree with respect to certain practices. But some of the methods under discussion have been used for centuries and were commonly understood as torture. For instance, waterboarding was employed by the Spanish Inquisition, the Gestapo, and the Khmer Rouge (among others). This historical practice was the background for the anti-torture statutes and conventions. Thus, a proper analysis should have explained how (notwithstanding those traditions) our use of those methods could be distinguished (which would be pretty hard).

Third, the memos seek to introduce a necessity defense into the torture or “shock the conscience” analysis that either isn’t there or is subject to serious objections. The third Bradbury memo observed that the State Department calls many of the techniques that we were using torture when practiced in other nations. But then the memo, in part, dismisses the force of that point by saying that other nations use these methods for relatively trivial purposes, while we were using them to protect America. The end, in a sense, justifies the means. One difficulty with the memo’s analysis is that many regimes that inflicted torture probably thought they were doing it for a good reason. The Inquisition was trying to defend the Faith, the Nazis were trying to defend racial purity, the Khmer Rouge was trying to defend the workers’ paradise, etc. That’s why the whole point of banning torture was to prohibit certain types of conduct without regard to motive. The rack or the thumbscrew can’t be used even it works really well at getting information and is done for an excellent reason. Treating torture as a relative harm rather than as a categorial ban is contrary to that understanding, and that departure is not really explained in the memos.

Finally, let me conclude by nominating a “controlled acute event” (for waterboarding) as my candidate for “Euphemism of the Year.” (Followed closely by “legacy assets” to describe the worthless paper that the banks are holding and “surgical bankruptcy” to described the worthless assets that GM is holding.)

In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws ­ laws not promulgated with the intention of affronting anyone’s conscience ­ the violations will not be allowed and will certainly not [...]]]> Over at the NYT’s Think Again blog Stanley Fish has a post on the Obama Administration’s contemplated reversal of the so-called conscience clause, which allows medical professionals to refuse to provide otherwise legal procedure when they have religious objections. Fish presents the issue as pitting the demands of a neutrally applicable law against the demands of personal conscience. He writes:

In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws ­ laws not promulgated with the intention of affronting anyone’s conscience ­ the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Of course Fish doesn’t quite get the law right. While he is correct that generally claims that the constitution requires the exemption of religious believers from neutrally applicable laws has been a loser in court, the Justices have also been quite clear of late that despite this hostility, it is fine for law makers to create such exemptions as a matter of non-constitutional law. This is my understanding what the Bush Administration did. No matter. We don’t read Fish for the constitutional law anyway. Far more interesting is his connection of the debate to the broader issue of religion in a liberal democracy:

But should patients be asked to add to the problems they already have the problem of having to figure out (if they have the time) which providers will be willing to treat them? When a professional hangs out his shingle doesn’t he offer his services and skills to the public and not just to members of it who share his morality? Isn’t it a matter of conscience (in Hobbes’s sense) to abide by the rules that define the profession you’ve signed up for?

The force of these questions depends on assumptions the proponents of the conscience clause do not share, chiefly the assumption that obligations vary with different contexts and that one can (and should) relax the obligations of faith when one is not in church. This sequestering of religion in a private space is a cornerstone of enlightenment liberalism which only works as a political system if everyone agrees to comport himself or herself as a citizen and not as a sectarian, at least for the purposes of public transactions.

Now for the record, I support the conscience clause. Provided that there are competitive markets that can provide legal services to those that demand them, I am not particularly outraged about the claims of this or that person’s conscience. There are, it seems to me, two ways of situating my position within the liberal framework that Fish alludes to. The first is to situate the marketplace within the private sphere where Fish thinks that religion may still legitimately make its claims. The second is to suggest that while there is a kind of public citizenship of the market place, it is different than the political citizenship upon which Fish models his liberalism.

The first approach is essentially that taken by market-oriented libertarians and is likely the most common response. The second approach, however, strikes me as much more interesting. It suggests that the market ought to be understood as a kind of intermediate public space between the political agora and the privacy of the household, a public space where liberal norms are important but not all important. I suspect that even the most ardent privatizers of religion would not want to insist that all the norms of political liberalism apply to the marketplace. Consider, for example, the question of consumption. I assume that no one objects to the orthodox Jew who patronizes only kosher butcher shops, even those who would argue that it would violate the ideals of liberal citizenship for the same orthodox Jew to refuse to vote for a Christian candidate. In other words, religion may be a criterion for butcher shops in a way that it ought not to be a criterion for political candidates. This suggests, however, that the separation of church and market is not as absolute as the separation of church and state.

Notice that in order to get his argument off the ground, Fish appeals to two extra concepts to work up the outrage against the non-comforming doctors. The first is consent — they signed up for the rules of profession. Of course, the problem with this kind of consent argument is that it would justify ANY set of rules that were announced ex ante. Don’t like them, don’t sign up for that particular activity. The second is the idea of a profession, that as a doctor one has a set of special obligations. The irony here, of course, is that there is a sense in which invoking the notion of a profession runs counter to precisely the ideal of equal citizenship that Fish invokes. To be a professional is to have certain non-disclaimable duties by virtue of one’s status. Another way of putting this is that the appeal to the profession is in a sense a negation of equal citizenship. Their duties are different than ours because they are different kinds of people. I would assume, however, that Fish would not see liberalism as requiring that doctors have a different set of political rights and duties, say an obligation not to vote in elections or to refrain from political speech. In the political agora they ought to be treated just like everyone else. Here liberalism abhors the notion of status.

The real problem, of course, is that we have a set of political philosophies that center on the state. The result is that they have a hard time telling us a great deal about the market, which must always operate by analogy to something — the state or the household — about which the philosophers have thought. There are, however, more things in heaven and earth than are dreamt of in liberal philosophy.

In a nutshell, there is a lot of money sloshing around the Islamic world. 20 percent of the world’s population is Muslim and at least part of the population sits atop oil fields that churn out an enormous amount of cash every day. What is an observant Muslim, one who cares about [...]]]> Generally speaking, when Americans hear about shar’ia it conjures up images of bearded and turbaned Taliban executioners gleefully stoning women to death in an Afghan soccer stadium. It is an unfair stereotype of a great legal tradition, and it is also one that misses some of the most important issues that shar’ia raises for the modern world. As usual, if you want to find the real action follow the money.

In a nutshell, there is a lot of money sloshing around the Islamic world. 20 percent of the world’s population is Muslim and at least part of the population sits atop oil fields that churn out an enormous amount of cash every day. What is an observant Muslim, one who cares about Islamic strictures against usury to do? Islamic law forbids the taking of interest, but certain transactional structures that allow some return in exchange for tying up capital are allowed. For example, a straight out purchase-money loan with interest secured by a mortgage on a the purchased house would violate Islamic injunctions against usury. On the other hand, if the bank buys the house, leases it to the resident for a period of years, followed by the resident’s purchase of the house at the expiration of the lease for a nominal sum, it does not violate the injunction. The game in Islamic finance is to come up with ways of structuring transactions so as to generate an attractive rate of return for investors without running afoul of the strictures of shar’ia. The result has been a cottage industry of banks and lawyers experimenting with various transactional structures and then rushing to find a reputable Islamic legal scholar willing to issue a fatwah validating the deal for Muslim investors.

The Economist just put up a rather good briefing article detailing some of the growing pains that the industry is facing. At least part of this problem is legal. To give one example that interests me, UCC 9-109 states that the Article 9 governs “a transaction, regardless of form, that creates a security interest in personal property . . . by contract.” The rule is aimed at precisely the kind of sale-and-lease-back transactions that are used in Islamic finance, a transactional gimmick that has also been tried as a way of avoiding the strictures of the UCC. The result of the rule, however, is that despite their best efforts parties may be forced, legally speaking, into an interest bearing loan. There is also the simple problem of complexity and the associated transaction costs. Still, according to the Economist:

None of these tensions need derail the growth of Islamic finance just yet. There is plenty of demand, whether from oil-rich investors, the faithful Muslim minorities in Western countries or the emerging middle classes in Muslim ones. There is lots of supply, in the form of infrastructure projects that need to be financed, Western borrowers looking for capital and ambitious rulers eager to set up their own Islamic-finance hubs. The industry is innovative; new products keep expanding the range of shar’ia-compliant instruments. And as in conventional finance, the economics of the Islamic kind improve as it gains scale.

If they are right, then Islamic finance is likely to be the real face of shar’ia in the modern world. In 2007, for example, over 150 new Sukuk (essentially a form shar’ia compliant bond) funds were launched with a value of nearly $50 billion. Given the less than inspiring ethical performance of certain aspects of the American lending market of late, a dose of financial puritanism from the desert might not be such a bad thing.

(Image source: Wikipedia)

At the Volokh Conspiracy, over the weekend they were talking about the origins of the Judge-Umpire analogy famously raised by now-Chief Justice Roberts in his confirmation hearings. Roberts, of course, was trying to suggest that he was just a neutral arbiter, applying the rules as best he could. Many people understandably found this analogy to be simplistic, or silly, but Ilya Somin rightly notes that “umpring is more complex than some detractors of the metaphor realize.”

But after watching last night’s first preseason NFL game, I would go further than Somin: not only do I think that umpring and judging are a lot alike, but I think [...]]]> Or at least, I have more faith in their neutrality than I do in the neutrality of judges.

At the Volokh Conspiracy, over the weekend they were talking about the origins of the Judge-Umpire analogy famously raised by now-Chief Justice Roberts in his confirmation hearings. Roberts, of course, was trying to suggest that he was just a neutral arbiter, applying the rules as best he could. Many people understandably found this analogy to be simplistic, or silly, but Ilya Somin rightly notes that “umpring is more complex than some detractors of the metaphor realize.”

But after watching last night’s first preseason NFL game, I would go further than Somin: not only do I think that umpring and judging are a lot alike, but I think that these some of these similarities are in areas that do not refelct well on either judges or umpires, and that, when you compare NFL officials and judges, you have a lot more reason to trust the competence of NFL officials than those of judges. And that’s mainly because (unlike Somin) I think judges and umpires have similar incentives and that the incentives of NFL officials are better.

First, as Solmin suggests, judges and sports officials all have a great deal of discretion and in many contexts both routinely ignore the “letter of the law.” In addtiion to the examples he gives, it is routine for baseball umpries to ignore the “phantom double play” (also sometimes referred to as the neighborhood play): this is when second basemen and shortstops fail to touch second base when turning a double play, at least if they could have done so. (Where the throw to the player draws him off the bag, umpires will enforce the rule; here’s a Sports Illustrated article from 1981 discussing a numer of “cheats” in baseball). More subtly, exactly the same thing often happens with first basemen who pull their leg early: again, unless the throw has been the cause, umpires always ignore it. I am sure that each reader can come up with their own examples of how judges do exactly the same thing. When it comes to baseball, and judging for that matter, I actually think this can be a good thing. But I do not think that Chief Justice Roberts had this similarity in mind (and I very much doubt his supporters did).

Second, judges and umpires (or really, any set of sports officials) alter their behavior based on who is watching and reviewing them. The most glaring example of this in baseball has been the change in strike zones called by major league officials at the major league level as the result of the QuesTec system. When umpires knew that they were being evaluated on how well they called the rule book definition of a strike, they appeared to conform their behavior to the rule book, in particular we have seen a decline in pitches off the outside corner being called strikes.

More subtly, umpires’ calls of tag plays (and probably referees calls of block/charges in basketball) have almost certainly been changed by the availability of replay. It used to be the case that the ‘recieved widom’ was that if the ball beat the runner to the base on a steal, the runner was out, even if the tag was not made (so long as the failure to tag was not too obvious): from the perspective of the umpire, calling the runner safe would generate an argument where the umpire would have to explain why the runner is safe, whereas the only person in a position to complain about an out call was the runner, whose perspective everyone knew was biased. Replay, though, means that an out call here does lead to an argument, so the umprire has more incentive to get it right. Perhaps it is just my particular (and limited) experience, but I think judges behavior can vary tremendously based on the likelihoods that their decisions will be reviewed, either by the public or by higher courts.

Third, politics play a big role in who gets to officiate in any sport, just as it does with judges. Of course, the officials working in major sports leagues are very skilled; they could not survive if they were not. But that does not mean they are the best of the best: having the right connections can play a big role in who makes it to the majors in baseball and to the NBA, and who does not. Is it really a coincidence that Harry Wendelstedt’s son is a MLB umpire, that Brian Runge’s father and grandfather were major league umpires or that the Welke brothers are? Putting aside the problems with elected judges, even in a system of appointed judges (like the federal system), politics matters a lot in determining who gets to be a judge. This plays out at every level of the federal judiciary. Of course, I am not suggesting that federal judges are bad as a result; I am just dubious that the the importance of politics in appointment makes them better than they would be in a world where politics played a smaller role.

Fourth, officials in collegiate sports, no doubt like judges in some places, are often more connected to one of the teams (or parties) than the other. We are all used to major league sports officials, who are employed by the league, not the schools, and therefore have no facially apparent bias toward one team or the other. At the college level, though, that is often not the case. Officials are usually employees of a particular conference, not the NCAA, so in any game between teams in different conferences, there is the possibility of the officials favoring the team from their conference (this is somewhat lesslikely in Division I basketball, where many of the officials work for multiple conferences). This has presented a problem at times in college football (for instance, the controversy over the 2006 Oklahoma-Oregon game) and similarly, we see the connections between judges and the parties having worrisome effects, most notably in West Virginia. I don’t even need to get into the some of the issues with NBA referees and players that have come out as a result of the recent Tim Donaghy scandal. Back when major league baseball umpires worked for only one league, baseball tried to account for this with balanced umpiring crews for the World Series.

Indeed, for many sports, it is actually worse than this, and I think worse for judges as well. That is because for non-revenue sports at the collegiate level, the officials are generally local ones. At least back in the early 90s (the time period I have the most information about), college baseball officials were “conference” employees in name only in the Pac-10 and other western conferences (I am pretty sure this was true elsewhere and that it was true for other non-revenue sports, but would be happy to be corrected). That was because the officials did not travel outside of their geographic region. So, for instance, umpries based in Los Angeles worked only USC and UCLA home games. Because the local teams were repeat players, and the evaluations of the local teams made the biggest difference to their future assignments, these officials had a large incentive to keep those teams happy. At a minimum, the repeat-player aspect of these interactions had to have a subconscious effect on the umpires. I have little doubt that judges are similarly influenced by exactly the same sort of repeat player problem, at least in some places.

My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire).

None of this meant to suggest that I think that judges are bad at what they do, or that they are corrupt. Nor am I unaware that NFL officials make mistakes; of course they do, and sometimes those mistakes are just plain dumb. What I am suggesting, though, is that when we compare NFL officials and federal judges, we have some reasons to suspect that NFL officials are likely to perform their jobs better than federal judges do.