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Bryan Caplan's Critique of the Law and Legal Scholarship:

Economist Bryan Caplan, my George Mason colleague and coauthor has some harsh, though not entirely inaccurate, comments about legal scholarship:

At risk of offending my many friends in the legal academy, I think that law is a shockingly phony discipline. Virtually everyone - liberal, conservative, Marxist, libertarian, or whatever - imagines that the law conveniently agrees with what they favor on non-legal grounds. Almost no one admits that many, if not most, laws are so vague that there is no "fact of the matter" about what they mean.

Once in a while, I should add, a law professor has told me this verbatim, and then gone back to arguing about the law. The philosopher in me insists, "If there's no such thing as unicorns, we can't argue about unicorns," but the Great Unicorn Debate never stops.

There is some truth to Bryan's argument. Undoubtedly, legal scholars' views on disputed legal questions correlate closely with their ideologies. The same, of course, can be said for economists' views of disputed economic issues. For example, conservative and libertarian economists are likely to have far more pro-free market views on the causes and consequences of the financial crisis than liberal and radical ones. As I have emphasized on other occasions, most people tend to interpret political information in a highly biased way that privileges their preexisting views and rejects or downplays opposing evidence. Academics are no exception to this trend, and may indeed be more biased than the average citizen because we tend to care more about political ideology than they do. My subjective impression is that the average economist is somewhat better than the average legal scholar about confronting their own biases; but there is wide variation in both groups, and the average difference between them is a matter of degree rather than kind.

Bryan's broader claim that the meaning of law is almost entirely subjective is, I think, greatly overstated. Far from being "vague," most modern statutes are actually extremely detailed and precise. Just peruse a few pages of the U.S. Code if you doubt me. Debates between legal academics make the law seem far more unclear than it really is because they often focus on either the Constitution (an old and on some important points genuinely vague document) or on the few important modern statutes whose meaning is seriously disputed. It's hard to advance an academic career by focusing on the meaning of statutes and constitutional provisions whose meaning isn't disputed by serious commentators. Lay observers like Bryan might understandably be left with the impression that the issues debated by legal scholars are typical of the law as a whole, whereas in fact they are not.

Similarly, as Bryan himself often points out, laypeople tend to think that economics is mostly subjective because public discussion among economists focuses on issues that they disagree on. Thus, Bryan emphasizes, laypeople fail to realize that economists overwhelmingly agree that free trade is better than protectionism, that price controls are harmful, and so on. The same can to some extent be said for legal scholars' interpretation of the law. There is a wide swathe of law (the vast majority, in fact) whose meaning isn't much disputed by experts. But the experts' scholarship and public commentary focuses on questions that generate disagreement. And on those issues, expert opinion (like lay opinion) often breaks down along ideological lines.

MarkField (mail):

Virtually everyone - liberal, conservative, Marxist, libertarian, or whatever - imagines that the law conveniently agrees with what they favor on non-legal grounds. Almost no one admits that many, if not most, laws are so vague that there is no "fact of the matter" about what they mean.


This certainly is true of Constitutional law.

I think he may overstate the extent of vagueness elsewhere in the law. While there's lots of disagreement at the margins of, say, tort law, not many people disagree on what the elements of a negligence claim are (even if they disagree on the application of those elements in a specific case).
12.30.2008 9:13pm
grackle (mail):
I find myself numbed with the irony implicit in an economist calling any other discipline phony.
12.30.2008 9:21pm
Oren:

Constitution (an old and on some important points genuinely vague document)

I would add intentionally vague. If the Constitution were not worded so that each State could believe that it meant something different, it would not have been ratified in the first place.
12.30.2008 9:22pm
Ak Mike (mail):
I think Prof. Caplan's critique is given strong support by the fact that nearly everyone can predict in advance the votes of eight of the nine sitting supreme court justices on any matter with a significant public policy angle, without knowing anything about the legal merits of the dispute.

Thus the law does seem phony where it deals with public law issues, because (I think) the common law was never developed to handle such issues. Common law was developed to resolve private disputes between private litigants, where the judge would not care who won.

When the judge has an interest in the outcome, judicial reasoning will tend to be pure rationalization. Where the judge has a political viewpoint, she will have an interest in the outcome of public law cases.

With Marbury v. Madison, the supreme court, on its own behalf and that of other courts, grabbed ahold of the power to determine the wisdom of legislative enactments. It could be argued that the constitution allocated that role originally to the senate, whose members also did not have to face the voters and had long terms.

This is essentially a political and not a judicial power, so in exercising it, the courts must put phony judicial clothing over political decisions.
12.30.2008 9:27pm
MarkP (mail):
Caplan must hand around some very strange lawyers. I practice, and I don't know ANYONE who thinks that the law isn't vague. The vagueness/ambiguity/silence/contradictions in the law are at the very heart of what we do. We give advice to clients DESPITE the law's weaknesses -- helping clients make decisions in the face of the law's flaws. As advocates, we make arguments to courts on behalf of clients, in which we take certain advantage of the law's weaknesses, which nonetheless gives the courts the opportunity to make the law less vague/ambiguous/contradictory.

I know that some econ-heads (apparently, depending on their preconceived notions) on the blog will think "you're just taking advantage of the law's infirmities to make money." We can debate the Bar's monopoly some other time. But whatever method allows one to become a lawyer doesn't change the central part of the job -- helping clients and courts grapple with vagaries in the law and still make reasonable decisions that let society's wheels keep moving.

Those who seek certainty in the law are doomed to failure. Even worse, they miss the beauty that lies at the heart of the practice of law. So, stop being frustrated and go help a client out. The rewards, especially the non-economic rewards, are amazing.
12.30.2008 9:39pm
Oren:

...the fact that nearly everyone can predict in advance the votes of eight of the nine sitting supreme court justices on any matter with a significant public policy angle.

How does that work in Raich? I bet Ginsburg votes for medical marijuana when given the choice at the ballot box. I bet Thomas votes against it.
12.30.2008 9:53pm
Steve H:

How does that work in Raich? I bet Ginsburg votes for medical marijuana when given the choice at the ballot box. I bet Thomas votes against it.


Fine. How about "nearly everyone can predict in advance the votes of eight of the nine sitting supreme court justices on almost any matter with a significant public policy angle"?

I think law scholarship is phony because hardly any of it accomplishes anything. Unlike science, for example, law profs aren't usually running experiments and reporting the results - at least, not in the law review articles I have read. Instead, most law review articles constitute pontificating about stuff that is already in the public domain.
12.30.2008 10:15pm
Ilya Somin:
I think law scholarship is phony because hardly any of it accomplishes anything. Unlike science, for example, law profs aren't usually running experiments and reporting the results - at least, not in the law review articles I have read. Instead, most law review articles constitute pontificating about stuff that is already in the public domain.

Lots of scholarship, in many disciplines consists of expert analysis of information already in the public domain. Improving our understanding of information we already have is often just as important generating new information.
12.30.2008 10:18pm
Skyler (mail) (www):
I'm in law school now and every semester, every class I'm struck by how law is pretty much what the beholder wants it to be, with Judges being the only beholders that matter.

The most absurd example of this was Conflicts of Law, where the semester starts off with some simple straightforward rules on choice of law, slowly making them more complex to the end of the semester when you finally realize that just about any theory can be used at just about any time to justify using almost any choice of law in just about any situation. I exaggerate, but not by much.

Reading through opinions written by judges over the centuries gives a similar impression of the common law.

I think describing the study of law as debating about unicorns is pretty accurate. The substance of unicorns is really only of much importance to those who believe in unicorns and no one else. For law, the unicorn believers are law professors and students who wish to someday become law professors and judges. The rest of us just have to speak the language and deal with the unicorn believers because they control the profession.

I imagine that ecclesiastical law was much like this in the old days. Only those in power and the clerics really cared about the exact words when drafting the Nicene Creed. Everyone else just had to deal with it.

Raich, Roe v. Wade, all the popular court cases really have little to do with justice and everything to do with pretending that laws have some basis in logic. You can sometimes tell how much stretching is needed to perpetuate the facade of logic by measuring how long the opinion is. I can't imagine anyone thinks that Roe or Casey are logical in any way. Oh, but I'm sure many ideologues would claim so.

But the thing is, there is no other possible system. Truth is truth regardless of perspective. All the world is black and white. Yet no two people will ever agree on what is black and what is white, nor the shades of gray that they may be perceived as. The study of law is imperfect because we are imperfect.

The attempt to codify right and wrong is a noble effort and doomed to be flawed. To the degree that it succeeds in being accurate at all makes it worth the agony of innumerable tortured opinions. The purpose of civilization is to strive to accurately define right and wrong. Being imperfect, our attempt will always be not only flawed, but influenced by corruption and bias, but to not try at all would be to devolve shamefully into chaos and anarchy.

So, even though the study of law is dominated by unicorn debators, it is the discipline of the debate that keeps us civilized and hopefully free.
12.30.2008 10:30pm
Oren:

I think law scholarship is phony because hardly any of it accomplishes anything. Unlike science, for example, law profs aren't usually running experiments and reporting the results - at least, not in the law review articles I have read. Instead, most law review articles constitute pontificating about stuff that is already in the public domain.

Having a functioning and (somewhat) efficient form of government is plenty good. (Disclaimer: I am a physical scientist).
12.30.2008 10:42pm
PersonFromPorlock:

...most modern statutes are actually extremely detailed and precise.

Yup. And then the Prosecutor or the Judge decides which of these detailed and precise laws applies to a particular set of circumstances on some perfectly arbitrary grounds....
12.30.2008 11:11pm
Hoosier:
Law schools, like ed schools, should not be colleges within universities. When they are, then the faculty have to publish. So they have to "make new shit up." And then all hell breaks loose.
12.30.2008 11:32pm
TerrencePhilip:
Ilya, sounds like your friend is a budding Legal Realist.
12.31.2008 12:16am
Non lawyer:
I read a paper titled "The Myth of the rule of law" by John Hasnas. Wondering if anyone else has read it and what their take on it is. I'm not a lawyer but in the paper he showed or tried to show that for every case with facts A, B, C there were at least two different decisions going in opposite directions. The paper blew my mind, but like I said I'm not a lawyer, so maybe that's not too big of an accomplishment.
12.31.2008 12:19am
J. Aldridge:
I think scholars enjoy the vagueness argument because it allows them to avoid original meaning which in return allows them to pitch their own idea of justice or remedies under the false pretense of interpreting law.
12.31.2008 12:59am
Cornellian (mail):
I read a paper titled "The Myth of the rule of law" by John Hasnas. Wondering if anyone else has read it and what their take on it is. I'm not a lawyer but in the paper he showed or tried to show that for every case with facts A, B, C there were at least two different decisions going in opposite directions. The paper blew my mind, but like I said I'm not a lawyer, so maybe that's not too big of an accomplishment.

Would you say the rules of baseball are hopelessly vague because people disagree when things are close to the line? Only a tiny percentage of legal disputes ever get to trial and they get to trial (usually) because they're close to the line. Just looking at trial (or trial and summary judgment) decisions doesn't give one an accurate picture of how the law works.
12.31.2008 1:21am
Real American (mail):
The problem with some legal scholarship and judicialism, is that they both tend to take that which ISN'T VAGUE and yet find a way to make it vague. Seemingly straightforward language and terms that have fairly precise meanings are parsed down to the syllable, i.e., the meaning of "is" and everything turns on how the judge or scholar feels that day or what his/her ideology is. That's when the law has no meaning.
12.31.2008 2:10am
Skyler (mail) (www):
Yes, Real American, but how would you propose to stop that? You can lead a judge to logic but you can't make him think.

There are certainly people who could explain in great detail why two and two make five or seven instead of four. They often become judges of course. But how would you enforce the math or the logic? Who becomes the arbiter of what is truth? How would you pick these people? Maybe by appointment, committee review and with life tenure? How would you force someone in a free country to use logic?
12.31.2008 2:28am
Oren:

Would you say the rules of baseball are hopelessly vague because people disagree when things are close to the line?

Can you (or any other baseball fan) explain clearly what the hell the balk rule forbids? That particular rule is, in fact, hopelessly vague.

The three-strikes rule, on the other hand, seems pretty clear. I've never seen an umpire call the batter out after 2 strikes nor let the batter continue to 4 or 5.

My take is that legislators (or maybe their aides that actually draft the laws, I have no idea) make a conscious judgment when to spell things out exactly and when to let the judge have some wiggle room.
12.31.2008 3:13am
tvk:
Ak Mike and Steve H.,

It is not clear that your argument leads you where you want to go. Let us imagine that the premise is correct--we can predict, most times, the votes of 8 out of 9 Supreme Court justices in a case. If the prediction is that they will all vote the same way, then the law is not uncertain at all, it is in fact pretty determinate.

Your point, then, seems to focus on the prevalence of 5-4 splits at the Supreme Court. But 5-4 splits are not nearly as common as many people think they are (cognitive bias because the 5-4 splits are given more attention, both exogenous and endogenous causes for this); and such cases are a highly unrepresentative sample.
12.31.2008 3:49am
Asher (mail):
Debates between legal academics make the law seem far more unclear than it really is because they often focus on either the Constitution (an old and on some important points genuinely vague document) or on the few important modern statutes whose meaning is seriously disputed.

Maybe there aren't many such statutes, but they sure are important. The key provisions of the Voting Rights Act, for one, are written in the vaguest of aspirational gobbledygook.
12.31.2008 4:00am
Tritium (mail):
Economists are Optimistic Speculative Based Accountants. Ultimately, they will tell you... that the Economic policies have worked for a long time. This is untrue. While there is a perceived economic flow, you have to realize the deficit hasn't been to $0 or less since the Federal Government began taxing people their hard earned wages. While they have a power to tax a buyer of services/labor, the Direct Taxation was to be apportioned, which would be a useless use of the phrase if the object intended was not the state.

It seems to me that when a person enters the legal profession, they either try to collect as many consulation fees as they can, and offer you a list of numbers of other attorneys who may be able to help, Or they only take cases with a 75% or higher chance of winning. (I know this isn't the case with all graduates, but of couse, student loans must be paid.)

People currently engaged in law believe that everyone worth challenging has already been challenged, therefore there is no reason to challenge laws unless they are new, or newer law conflicts with law in question.

And of course, it seems that the favorite pick for Supreme Court Justices are former Judges. (Not that former judges aren't qualified, but there was no bar association in 1789. Politicians are usually attorneys, and are the first ones to profit from their disobedience to law.

(btw, Obama &Biden both life in Washington D.C., but electing 2 people from the same place is against the 12th Amendment. )

But it all comes down to this, if authority is overreached by the same entity a Constitution establishes, what's going to stop the next one? Politicians feel too empowered from winning a popular vote, and receiving so much $$ in bribes, what good is being honest? A job in the banking industry? The only industry to become totally insolvent, and be allowed to hide behind mergers with asset backed companies and bailout money.

Eventually we'll begin with the simple math, and realize the numbers never added up, and where is the minimal amount of $$ the fed charges for Interest? technically speaking, the federal government could never have a deficit. Or.. I should say.. They shouldn't allow banks who profit up the ying yang at unreasonable amounts, (and yet still went broke) for pressing a button on the printing press. The newspaper companies would be happy to assist for much lower rate.
12.31.2008 5:59am
EricPWJohnson (mail):
Mr. Caplan point is - well - to a non lawyer like me - deliciously hilarious -

Getting beyond my juvenile side - lawyers are something we all tend to forget

Passionate advocates of right and wrong

Sappy, true, but in the end, when you have a grave dispute, or when society really really needs justice, at that point, there is the attorney.

Embracing the law as a science for an economist, (which I am sort of one, I think) is akin to a rhino embracing break dancing
12.31.2008 8:22am
MCM (mail):
The problem with some legal scholarship and judicialism, is that they both tend to take that which ISN'T VAGUE and yet find a way to make it vague. Seemingly straightforward language and terms that have fairly precise meanings are parsed down to the syllable, i.e., the meaning of "is" and everything turns on how the judge or scholar feels that day or what his/her ideology is. That's when the law has no meaning.


I find it hilarious when people make fun of the "what meaning of is 'is'", when they obviously don't know what the actual question was. That's an incredibly poor example for your argument.

There are certainly people who could explain in great detail why two and two make five...


Well, for very large values of two...
12.31.2008 8:58am
Awesome-O:
Virtually everyone - liberal, conservative, Marxist, libertarian, or whatever - imagines that the law conveniently agrees with what they favor on non-legal grounds

On the hot-button issues, sure. But most of what lawyers and judges do doesn't affect them personally. I think I could supply a dispassionate analysis of the law in pretty much any area in which I don't have any skin in the game. Regardless of how you feel about the rest of his dissent, I think Scalia had it right in Casey:
As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here—reading text and discerning our society's traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about.


Legal scholarship isn't science. It's about as outcome-based as history, sociology, anthropology, psychology, economics, and the other social sciences, largely because that's what it is.
12.31.2008 9:01am
A.C.:
When I have my lawyer hat on, I find the clear-cut parts of the law rather dull. They involve sitting at my desk doing ordinary work, not thinking creatively about the strange new problem that someone has invented.

However, when I have my regular person hat on, I think it's important to expand the clear-cut areas of law so that people can go about their business with full knowledge of what the law requires. The process of getting a building permit or business license, for example, should be fairly straightforward. If you have to go to a dozen different offices and bribe a large assortment of officials, as is the case in many countries, a lot less business gets done.
12.31.2008 9:05am
Steve H:

Ak Mike and Steve H.,

It is not clear that your argument leads you where you want to go. Let us imagine that the premise is correct--we can predict, most times, the votes of 8 out of 9 Supreme Court justices in a case. If the prediction is that they will all vote the same way, then the law is not uncertain at all, it is in fact pretty determinate.

Your point, then, seems to focus on the prevalence of 5-4 splits at the Supreme Court. But 5-4 splits are not nearly as common as many people think they are (cognitive bias because the 5-4 splits are given more attention, both exogenous and endogenous causes for this); and such cases are a highly unrepresentative sample.



I don't think your reasoning holds up. That we can predict the votes of most Supreme Court justices does not mean that the law is determinate, because the composition of the court changes, and this has nothing to do with 5-4 splits.

So Rule 8 can mean one thing for fifty years, but when you have enough conservative justices on the court, all of a sudden it means something very different.

And Professor Somin, I do agree that "[i]mproving our understanding of information we already have is often just as important generating new information." Based on my experience, though, much legal scholarship is too obscure or too ideologically driven to accomplish this.
12.31.2008 9:08am
Snaphappy:

I've never seen an umpire call the batter out after 2 strikes nor let the batter continue to 4 or 5.


Of course you have. It's just that in the former case, the umpire called a ball a strike before calling the batter out after only two legitimate strikes. You have also seen an umpire let the batter continue to 4 or 5 by calling proper strikes "balls."
12.31.2008 9:30am
Liberal Libertarian, PHD, JD:
The problem is not that legal academics are bad per se -- to the contrary, there are plenty of solid, rigorous legal scholars out there who produce solid legal scholarship. And the evidence of the Conspirators is a clear counter-example to that claim (meant seriously, not as a kiss up).

The problem, I'd suggest, is that the legal academy is populated by many folks who have no rigorous academic training. Law school doesn't qualify as (or even come close to) the rigor of a serious doctoral program. Clerking does somewhat more so, but not really. Working at a firm (if anything) puts one a few steps backwards. Worse, serious legal academic publishing isn't peer reviewed; worst of all its "reviewed" by legal neophytes.

I'm not saying that the above are necessary or sufficient conditions to good scholarship. But the process of weeding out sub-par, non-rigorous legal scholars and scholarship is not nearly as well developed as it is in other disciplines.
12.31.2008 10:39am
Ak Mike (mail):
Let me reinforce Steve's response: The question raised by Prof. Caplan is whether the law is a joke, pretending to be determined by some objective analysis but in fact driven by ideology. My answer is that he's right but only as to public policy questions that were not the traditional subject of common law decisions.

If you can predict the votes of judges based not on their supposed legal position but instead on their political position, that makes the law more not less of a joke.

And Oren, Raich is a shining example of this problem. Scalia's hatred of drugs caused him to vote against his legal position. Justice Thomas' disdain for big government which happens to be consistent with his announced legal position dictated his vote. Each voted in accordance with what he considered the most important implications of the decision, although there were other implications that he considered less important.

The idea that this ideological voting is something new is nonsense - I should only have to mention the Dred Scott decision to show that where matters with significant political implications are to be decided by judges, the decisions have always been political decisions clothed as legal ones.
12.31.2008 11:02am
JNHeath (mail):
Legal academics get away with third and fourth-rate work because they produce nothing but verbiage and are not accountable for any concrete consequences at all. I have published legal scholarship and attended law school, which I did not complete for lack of funds. I write this from backstage at Royal Albert Hall in London, where I just oversaw the rigging of 18 tons of equipment from the roof for Cirque Du Soleil. My rigging work has to be correct. I put the same care into my legal scholarship only to discover it did not matter. I could as easily have pulled the theories and citations out of my pants. Nobody would have known or cared. There is no comparison. I have spoken at length with many legal academics and many circus riggers, and make no mistake: circus riggers uniformly have better professional ethics and standards than legal scholars.
12.31.2008 11:08am
MarkField (mail):

you have to realize the deficit hasn't been to $0 or less since the Federal Government began taxing people their hard earned wages.


I have no idea what the relevance of this is to the post, but the "deficit" (I think you mean "national debt"; the deficit has been $0 or in surplus on many occasions since wages have been taxed) was not $0 for many years before the income tax either. It really only hit 0 for a very brief period in the early 1830s.
12.31.2008 11:16am
Sk (mail):
"Debates between legal academics make the law seem far more unclear than it really is because they often focus on either the Constitution (an old and on some important points genuinely vague document) or on the few important modern statutes whose meaning is seriously disputed."

I think you are all focusing too much on whether this statement is correct (or, rather, to what degree it is correct-it seems that everyone accepts it to some degree), and not on the implications of the fact that it is correct.

Because, given that the above statement is correct, it follows that constitutional disputes are really political disputes. And if they are really political disputes, then in a democracy, they belong in the legislature rather than the courts. And, as long as Court authority over these decisions continues to grow, the Court is eroding democracy and replacing it with an oligarchy (or a theocracy of black-robed high priests, if you prefer).

Its probably preaching to the choir at a libertarian site, but the focus on non-judges (i.e. non-oligarchs) should therefore be on efforts to deny power to the judiciary, and not to argue how the judiciary should properly decide a case.

Every time we ('we' being all non-judges) attempt to make legal arguments for or against a viewpoint (abortion, gun control, whatever) we are falling into the trap of legitimizing the erosion of democratic rights. In other words, we shouldn't be arguing whether the court should find for or against the DC handgun ban (for instance). We should be arguing how to restructure the system so that courts don't have the authority to make a call with respect to the DC handgun ban.

If civil disobedience, and constitutional legal arguments, and writing letters to the editor, and voting, and marching with protest signs are all equivalent, political, behavior, this has a dramatic impact on the extra legitimacy that constitutional legal arguments enjoy.

Sk
12.31.2008 11:26am
WASP:
Because law, in its disputed areas, requires producing public reasoning that can gain a great many adherents (first to minor premises and working to major premises) than surely a conversation on the law as provided by scholars is a good idea and is, ofcourse, as political as it gets. Criticizing law for being political is absurd.
12.31.2008 11:29am
Clayton E. Cramer (mail) (www):
I will agree that there is too much legal "scholarship" that just happens to reach the public policy conclusions that the writer wants. But there are plenty of examples of scholars who find stuff that they don't particularly like. For example, I would really, really like to find some originalist evidence in support of the constitutionality of felon in possession laws (which seem like good public policy to me). But I've been looking pretty hard, and I can't find it.

I find mandatory gun registration laws absurd and dangerous as a matter of public policy. But I can't find any particular evidence that such laws are contrary to an originalist view of the Second Amendment.

And there are plenty of examples, such as Justice Thomas' dissent in Lawrence, where laws are both constitutional and "uncommonly silly." One of the difficulties that the raving leftists who dominate the legal academy have trouble understanding is that just because a law is foolish, or troublesome, or even potentially tyrannical, doesn't make it automatically unconstitutional.
12.31.2008 11:38am
WASP:
I don't agree that common law is any less political than constitutional law. Perhaps its more in dispute (or more high profile) but it is not less political.
12.31.2008 11:38am
trad and anon (mail):
Just consider the unfathomable shoddiness of the quantitative work that gets published as scholarship in law reviews. Like, say, this or this. And a while back one of your cobloggers (can't find the post, unfortunately) published a paper purporting to be a scholarly analysis of the Bible as a work of history despite having read it only in translation.
12.31.2008 11:48am
Clayton E. Cramer (mail) (www):

Every time we ('we' being all non-judges) attempt to make legal arguments for or against a viewpoint (abortion, gun control, whatever) we are falling into the trap of legitimizing the erosion of democratic rights.
If the Constitution had created a simple majority rules government, you would have a good point. But it didn't. Both because of structural characteristics (equality of states in the Senate) and specific protections (no ex post facto laws, no titles of nobility, the Bill of Rights and subsequent amendments), there are significant protections for minority rights.

The big problem is that when the courts decide to go beyond the text and original intent, and start making up rights out of thin air--that's a problem.

I'm skeptical of unlimited majority rule. But I'm more skeptical of elitist rule. Part of why the left relies on elitist rule is that they know that their chances of persuading the population to their point of view are effectively zero.
12.31.2008 11:48am
Hoosier:
Oren

Can you (or any other baseball fan) explain clearly what the hell the balk rule forbids? That particular rule is, in fact, hopelessly vague.


But vague is the one thing that is isn't. Complicated: Yes. Missed on occasion by even the most experienced umpires: Yes. Arbitrarily enforced: Often.

But not vague. See MLB Official Rules, 8.05.
12.31.2008 11:49am
WASP:
I am suspect of Legal Scholars as Historians. I don't know what training they have for that but it seems they wade willy-nilly into it, regardless.
12.31.2008 11:54am
WASP:
"If the Constitution had created a simple majority rules government, you would have a good point. But it didn't. Both because of structural characteristics (equality of states in the Senate) and specific protections (no ex post facto laws, no titles of nobility, the Bill of Rights and subsequent amendments), there are significant protections for minority rights."

Stucturally it is also a limited government, now how in the world do you get government to get government, to respect limits. The way we've come up with is an independent judiciary. Does someone have a better idea?
12.31.2008 12:04pm
Richard ft (mail):
The philosopher in me insists, "If there's no such thing as unicorns, we can't argue about unicorns,"


The philosopher is wrong. Imagine someone said to you, "Unicorns have two horns," or "Santa's coat is greeen." Would it really be meaningless to argue that unicorns "in fact" have one horn each, and Santa Clause wears a red coat? No.
12.31.2008 12:14pm
Timothy Sandefur (mail) (www):
Prof. Somin,

I would add one point to what you say. One of the big problems in this area continues to be physics envy. The economists want very badly to be precise and have dandy equations that look so sophisticated and objective and Scientific, and they like to look down on disciplines whose standards of precision, styles of argumentation, and subjects of dispute appear to be "subjective" or imprecise by that standard. They disregard Aristotle's wise counsel: "We must be content, then, in speaking of such subjects and with such premisses to indicate the truth roughly and in outline, and in speaking about things which are only for the most part true and with premisses of the same kind to reach conclusions that are no better. In the same spirit, therefore, should each type of statement be received; for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs."

There is no reason why legal scholarship should be judged by the standards applicable to sciences that are more easily reducible to mathematics. On the contrary, the principles of law--which purport to govern the interactions of human beings, each of whom has free will, dreams, desires, taboos, ambitions, &c.--are vastly more complicated than, say, the principles that govern the interactions of soulless subatomic particles or electromagnetic waves. These latter phenomena are only barely explicable in mathematical terms by the science and technology of today, after a centuries-long effort by humanity's finest minds. It should hardly come as a surprise, therefore, that wide areas of law have not reached the same degree of precision. And that fact hardly renders law "subjective," or "imprecise," or "made up," or whatever.
12.31.2008 12:44pm
PJens:
I think part of the function of Law is to communicate. Laws are written communication that says: These are the rules of our society.

Prof Caplan is correct that some law, and legal scholarship is vague, possibly by design. Prof Somin is correct that US code is not always vague, in fact very specific.

I am familiar with CFR 14, Federal Avaition Regulations (FARs) and there is very little wiggle room in those.

The larger point though is to reduce the questions about the law. I personally do not want legal scholarship to go away, and don't think Caplan does either, but rather to become better. I may be a dreamer, but I think legal language can be precise and understandable - by lay people - at the same time.
12.31.2008 1:15pm
A.C.:
Physics envy is right. Physicists themselves are sometimes at the front of the pack in saying we all should have it, but other disciplines are guilty of falling for it.

I'm not opposed to counting things, and a lot of things in law really can be counted. I like it when legal scholars who know their stuff use social science methodology to learn something about how the world works, and then use that information to inform their public policy arguments about how the law should work. I'm not one to say that "the science" should (or can) determine public policy choices, but it's something to throw into the mix along with ideology and gut reactions.

The problem for me is when scholars make public policy arguments but don't admit it. It's fine to say what you think the law should do and why. But it doesn't end there. The next bit, which is often muddled, is explaining how the author would like to move the law in that direction. Possible choices are:

1. Persuade everyone that the new way is the best reading of existing law, even if no one thought of it before;
2. Persuade everyone that the new way is at least permissible under existing law, and should be adopted because of the obvious benefits;
3. Persuade everyone that some statute or regulation should be changed to create the desired outcome.

#1 is very, very hard to do successfully. If you pull it off, though, you're the Genius Of The Age. That leaves a lot of people trying to do it, but doing it rather badly.

What's WRONG with writing arguments under #2 and #3? The whole point to being an academic is that you don't have to decide actual cases under existing law. You can create a whole new institution on paper if you want. If you're good and the time is right, it may even go somewhere.
12.31.2008 1:26pm
Clayton E. Cramer (mail) (www):

I am suspect of Legal Scholars as Historians. I don't know what training they have for that but it seems they wade willy-nilly into it, regardless.
Academic historians as legal scholars (such as Bellesiles or Saul Cornell) can't even seem to get basic historical facts right. This is a wider problem than just legal scholars.
12.31.2008 1:48pm
Awesome-O:
Is English Literature a "shockingly phony discipline" because self-interested homosexual scholars re-interpret Shakespeare to have homosexual themes?

Is history a "shockingly phony discipline" because Marxist scholars reinterpret American history with Marxist assumptions?
12.31.2008 1:52pm
Clayton E. Cramer (mail) (www):

Stucturally it is also a limited government, now how in the world do you get government to get government, to respect limits. The way we've come up with is an independent judiciary. Does someone have a better idea?
If I had to pick the single biggest flaw in the Constitution, it is the notion widely held by the Framers that the judiciary, being independent, and holding office for life, would not be a political branch.

I don't have a better solution, but it is important to recognize that "independent judiciary" has practically speaking turned into judges making stuff up to make themselves happy.
12.31.2008 1:53pm
Sk (mail):
Is English Literature a "shockingly phony discipline" because self-interested homosexual scholars re-interpret Shakespeare to have homosexual themes?

Is history a "shockingly phony discipline" because Marxist scholars reinterpret American history with Marxist assumptions?

Yes and yes.

Sk
12.31.2008 2:07pm
Ak Mike (mail):
Awesome-O - Correct. You have given good examples of phoniness.

WASP - you are kind of right and kind of wrong. There is some truth in your comment that political factors can come in to purely private law cases. However, I think that does not happen much of the time.

You are wrong, though, in stating that legal debate and "public reasoning" are simply a form of political discourse. They are a form of phony discourse, because the "reasoning" used is ex post facto rationalization,typically unpersuasive, and not the real reason that the decider decided the way she did. Sure, judges do frequently mention the policy reasons that they believe are advanced by their decision, but they falsely claim that their decisions are grounded on some legal theory rather than the policy reasons.
12.31.2008 2:13pm
Occasional Lurker:
Agree completely with the "physics envy" point. The human disciplines are bound up with intentionality and language/meaning, makes them very different. People will always argue about the meaning of beauty, justice, etc., indeed philosophers have coined the phrase "essentially contested concept" to denote the way that this indeterminacy is intrinsic.

Not to mention that facts of real cases (including procedural postures) are messy. Law students and those who haven't spent a fair amount of time reading full cases will tend to see a clash of principles and rules -- and may not realize that the outcomes were about something else in the case. One should not underestimate the importance to most courts of doing justice in the actual case.

Perhaps more important (and I haven't read Caplan), I'm pretty unsure that the law is as "vague" as he claims. Not sure what he means by vague, honestly. Curious to know how he defines/operationalizes vagueness.

For instance, for most doctrines there's a spread of case-outcomes, but also really clear clusters, usually to the point that there's a clear majority view though not 90%. So there's disagreement, but as a practicing lawyer I KNOW what the answer will probably be.

I don't even know the universe or data set. If you look at SCt cases you are looking at perhaps the most skewed sample -- cases that 1) actually got to court 2) didn't settle completely 3) got appealed 4) the SCt granted cert or had to take it. And of course the SCt's cert decisions key on whether there's a circuit split, etc.

From the bottom up the vast majority of "law"-events don't even enter formal-legal dispute resolution.
12.31.2008 2:14pm
anotherJDPhD:
The folks in physics like to claim that they are completely objective. Yet, what is so scientific about string theory? In fact, it's not science (there have been no experiments to prove or disprove its existence) which places it the exact same box as Intelligent Design. It's philosophy - just as ID and law is.

Legal scholarship is bad because the Academy is sterile. The only folks who can get a job in the Academy are the snobs from Yale or Harvard who all followed the same paths and think the same ways. The only "original" thinking that's valued (and it isn't original) is wacky lefty stuff like the Crits. The truth is that law professors are terribly afraid of original thinking. That's why we have a system whereby the only way to get published in Harvard Law Rev is to have a Harvard law professor give his or her approval. I mean, what's all of this "I'd like to thank professor prestige so and so" in the 1st footnote crap?

But hey, law is hardly alone. Within the past 6 months we witnessed most economists embrace a nationalization of our banking (and so to be auto) industry because "we must."
12.31.2008 2:36pm
D.O.:
Agreement or disagreement between scholars on some contentious point is not a criterion for "good research field". Physicists disagree all the time on contemporary issues and positions are sometimes taken on ridiculous basis (Prof. A does not like Prof. B thus...) or worse. What is important for research to be "real" is whether it has any real impact. If legal arguments dug up and argued by academics can change thinking and practice of judges/lawyers/regulators trying cases or amending the laws than legal research is a research activity, otherwise it is a form of recreation.
12.31.2008 3:04pm
LHD (mail):
Come on, seriously?

The legal "academy" is a joke. I say this as a law student with a background in philosophy and classics. So I'm a Humanities nerd, through and through.

The student-run law review is a joke. I didn't even try to get on the thing. Perhaps it would have been in my self-interest to do so, given that it is, essentially, a status symbol. I say that, and I have friends on law review. But it's a joke. I'm not necessarily saying that the standard academic peer review system would be better. I don't know. I haven't thought about it enough. But I know a joke when I see one, and law reviews are just that.

That doesn't mean that there isn't some good legal scholarship floating around out there. Of course there is. But I suggest that you go and look through every issue of the most recent law reviews published. From all the law schools in America that publish them. Every one. Including the schools that publish 6 or 7. Look through them. See for yourself.

The question about legal scholarship, though, is very different from the question about law. Take a look at the pieces written by ex-practitioner law profs. who are giving advice on how to make the transition. A common theme among those is: read lots of legal scholarship, recognize that the legal scholar's world is very different from the pracitioner's. Because by and large (though there are, of course, exceptions) legal scholars don't care about the world of practitioners. In other words, they don't care about the law. What is law? At its most basic level, it's a set of rules for ordering and/or governing society. Legal analysis, in practice, is all about application of law to fact, right? That's not a scientific enterprise by any means, so it's not a simple matter of mechanical routine. But the law is meant to, and does, exist and operate in the real world, with real people, having real problems. What are practitioners? People who practice law. What are legal scholars? People who do not.

I was a philosophy student. Don't get me wrong. I like theory as much as the next guy, probably more. But there is a limit to theory. Because law involves humans. Humans act. The interesting stuff happens out in the real world, not in the law reviews.
12.31.2008 3:28pm
WASP:
"but they falsely claim that their decisions are grounded on some legal theory rather than the policy reasons"

Legal theory is a subset of policy reasoning.
12.31.2008 3:55pm
Skyler (mail) (www):
Richard ft wrote:

Would it really be meaningless to argue that unicorns "in fact" have one horn each, and Santa Clause wears a red coat? No.

Why, of course it would be meaningless. Or were you trying to be sarcastic?
12.31.2008 3:59pm
Oren:

Of course you have. It's just that in the former case, the umpire called a ball a strike before calling the batter out after only two legitimate strikes. You have also seen an umpire let the batter continue to 4 or 5 by calling proper strikes "balls."

There is no notion in baseball of a "legitimate strike" that is at variance with what the empire calls. A pitch becomes (in the strict ontological sense) a ball or a strike when it's called that way.
12.31.2008 4:31pm
Dilan Esper (mail) (www):
I don't have a better solution, but it is important to recognize that "independent judiciary" has practically speaking turned into judges making stuff up to make themselves happy.

But not having a better solution is exactly the point. You either give the judiciary the power to run wild or you give the political branches the power to run wild.

The best you can do is try to appoint people to the courts who respect the limits. And the problem is (and this is one that your side has a lot of trouble admitting, Clayton) is that there are frank and intense disagreements between right and left as to what the actual limits are.
12.31.2008 6:40pm
Ak Mike (mail):
WASP - I guess I need to be more specific. Legal theories should be, and purport to be, about how outcomes are determined, and not which outcomes are better. "Policy" as I am using the term here, means which outcome is better. Judges purport to apply theories of law without regard to what outcome the appropriate theory leads to.

In fact, judges prefer a particular outcome for reasons that are usually not discussed in their opinions (eg, they hate illegal drugs), and choose the theory that leads to the outcome they desire. Their discussions (again, I'm only speaking of the public policy case) are fraudulent. So Scalia limits the commerce clause in Adarand but expands it in Raich. Judges in the early twentieth century concluded that the US Constitution prohibited New York from limiting the hours of bakers, just a coincidence that the judges thought that it was a bad idea to interfere with employment contracts.

So the "policy discussions" that occur in the opinions, which concern the legal reasoning that led to the conclusion, are fraudulent and unenlightening. You know beforehand that this justice was going to vote for this outcome; there is mild interest in how he or she justifies the vote, but after all the discussion is of no real consequence: it will not determine any future votes.

By the way, it is worth mentioning that the whole enterprise of attempting a theory of constitutional interpretation is doomed and without any real intellectual merit. The "original meaning" or "original intent" or whatever it is this week is normally impossible to discern; particularly with respect to issues that the framers of the constitution could not conceivably have considered hundreds of years ago. The "living constitution" school is even worse, because there is no guideline at all - it is simply a method for allowing the judge to impose his desired outcome with the smallest amount of discussion.
12.31.2008 8:06pm
Science (mail):
"The folks in physics like to claim that they are completely objective. Yet, what is so scientific about string theory? In fact, it's not science (there have been no experiments to prove or disprove its existence) which places it the exact same box as Intelligent Design. It's philosophy - just as ID and law is."

This is wrong—what makes something a scientific theory is whether it can be objectively tested in principle. Just because no one has done an experiment to test a particular theory doesn't somehow render the theory non-scientific—even if it could be demonstrated that any such experiment is impossible with current technology. I believe most (all?) versions of string theory do in fact make testable predictions, albeit only in energy regimes much too high to reach with current particle accelerators. I am under the impression that the general belief among physicists is that there are probably novel low-energy consequences as well, but that these are very difficult to tease out of the complicated mathematics of the theories. Reasonable people may disagree as to what extent law is "objective," but it's not making statements about physical reality. You can't test an interpretation of the law in a particle accelerator.
12.31.2008 8:19pm
TruePath (mail) (www):
I think you miss the point of his criticism. Yes, there is likely to be a great deal of agreement on most aspects of statutory interpretation while the prominent constitutional questions will be subject to greater dispute but this tells us only about people's willingness to agree not about any underlying truth.

Yes, economists disagree and ideology sometimes determines their views but ultimately economists agree that they are right or wrong insofar as their theories match reality. In practice there are all sorts of ways to avoid admitting your theory is wrong but at least in principle there is something to argue about: what will the economy do.

The issue in law is that the very standards against which legal arguments are judged are undefined. If everyone agreed that law was the discipline of determining what George Washington would have said in the case it would be perfectly well defined if often unresolvable. However, when arguing that X is the correct interpretation of statue/amendment Y there is not even an in principle fact we are trying to determine.
1.1.2009 4:58pm
TruePath (mail) (www):
Don't get me wrong. Law should not have intellectual content in the same way that philosophy or physics sometimes does. It is important that there is no fixed notion (what founder X would have said) of legal validity.

However, it should be at least recognized (before we ignore it) that legal scholarship is not truly in the business of determining objective fact. Rather it is in the business of distilling our societal values and preferences (which include being 'true' to constitutional provisions and the like).

This doesn't mean law profs do nothing useful. Indeed, I would argue just the contrary. However, it's important to realize that there is no fact about what a law requires. Thus unlike in physics where you can be correct but manage to convince no one the law is an ultimately political/social endeavor.
1.1.2009 5:04pm
Lurker (mail):
It is said, "Ignorance of the law is no defense." If this is true, then it is a duty of us all to know something about it. Otherwise the requirement is a fiction designed by Kafka. Yet specialists in the law disagree on the meaning of statutes and cases. What's a poor boy to do?

My simple military mind says go to 1st principles. Were legal practitioners and scholars to quit trying to impress each other with their knowledge and instead teach 1st principles--at say, local community colleges--as continuing education for The Unwashed Rest Of Us, I would be a happy camper.

My suggestion to the history department at a local CC consider offering a class similar to the one Clayton Cramer taught on U.S. Constitutional History has, so far, been answered with
.
.
.
.
.
silence.

But windmills are plentiful, and my saber, though bent and somewhat rusty, has not been discarded because of its blemishes.

The only alternative for TUROU seems to be to have a cop in one pocket, a defense attorney in another pocket, and a prosecutor in the third pocket. The fourth pocket is reserved for my wallet, which these days, contains only my DL, my CCP, and some Change.

I visit the VC daily because it is interesting, usually serious, and a place I can find good argument.

Happy New Year to all conspirators and commenters.

Gale_H
1.1.2009 7:24pm
Andy Freeman (mail):
> Not to mention that facts of real cases (including procedural postures) are messy. Law students and those who haven't spent a fair amount of time reading full cases will tend to see a clash of principles and rules -- and may not realize that the outcomes were about something else in the case. One should not underestimate the importance to most courts of doing justice in the actual case.

The whole point of precedent is that it is not limited to the actual case.
1.2.2009 10:27am
jimjim401:
I hate to say it, but the economist is dead on.

Since I was in law school, it has seemed to me that the majority of what is said and written about specific laws and the legal system in general ignores an overwhelming interest in what one of my professors called "result selection."

Of course judges do it too. Every advocate knows instinctively that the judge needs a legal hook to hang his hat on and a reason to hang his hat on it.

I'm not saying that there is anything intrinsically wrong with this; it would appear to be part of law since the world began.

What I really hate is the people (in the academy or on the bench) who refuse to admit that this is going on. God forbid that the grammatical parsing of legislation should be tainted by any suggestion that it is being applied to breathing, sweating, dying human beings, or that the court does, can or should care about them.

(I should note that it is not only lawyers who do this. There is a fad in evangelical churches of "expository preaching," which is based on the idea that one need only read the literal words on the page. In practice, it means ignoring any inconvenient interpretations and one's own biases, cultural specifics and interests, while claiming to be "objective." Self-delusion is a perpetual feast.)

This is one of the reasons that I love the military legal system (not the US military) in which I operate. It is nakedly utilitarian. It starts with defining the desired result: Maintenance of good order and discipline to increase operational effectiveness, morale, reduction of casualties, obedience to superior orders, respect for the law and amenability to civilian control of the armed forces.

But some civilian lawyers find this statement outrageously provocative. For them, procedural fairness is a flower that blooms for, apparently, the sake of its own beauty. That it should actually be useful offends them to their core.

Of course, they are blissfully secure in the certainty that they will never have to write that letter to Pte Bloggins's mother.
1.2.2009 10:52am

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