Category: General Law


Harry Truman and The Bill of Rights–Part Two

188px-Truman_initiating_Korean_involvementTo return to my theme from last week, let’s see how President Truman discussed the Bill of Rights from 1947-1952 as a way of distinguishing the United States from the Soviet Union.

At a Q&A with the Association of Radio News Analysts (May 13, 1947), Truman said:

“I believe in the Bill of Rights. I think that is the most important part of our Constitution–the right of the individual to go where he pleases, to do what he pleases, say what he pleases, as long as he is not materially injuring his neighbors.  That is the basis on which our Government is founded, and I think it is the greatest basis in the world for a government.  Totalitarian governments do not work that way.  The police state is a police state; I don’t care what you call it.  I have tried me level best to get along with our friends the Russians, and I still want to get along with them.”

Address Before the Attorney General’s Conference on Law Enforcement (Feb. 15, 1950):

“I know that it would be easier to catch and jail criminals if we did not have a Bill of Rights in our Federal and State Constitutions. But I thank God every day that it is there, that the Bill of Rights is a fundamental law. That is what distinguishes us from the totalitarian powers.”

Address on Constitution Day at the Library of Congress (Sept. 17, 1951):

“[T]he first 10 amendments–the Bill of Rights . . . are just as fundamental a part of our basic law as the original version that we are sealing up here today. I hope that the first 10 amendments will be put on parchment and sealed up and placed alongside the original document. In my opinion they are the most important parts of the Constitution.

. . .

A Constitution is not just a matter of words. There are other constitutions which may read as well as ours. Just take, for example, the constitution of the Soviet Union. That constitution of the Soviet Union says that Soviet citizens are guaranteed freedom of speech, freedom of the press, and freedom of assembly.  I wonder what would happen to a citizen of the Soviet Union is he tried to exercise any of those freedoms? It professes to guarantee that citizens of the Soviet Union shall be secure in their persons and in their homes. And in addition, it purports to guarantee equality, the right to work, the right to an education, the right to rest and leisure, freedom of religion, and a lot of other fine things.

But these good words in the Soviet Constitution means less than nothing.  They are empty promises, because the citizens of the Soviet Union have no way of enforcing their rights against the state.”



Journal of Legal Education: Volume 65, # 3, Spring 2016


From the Editors

By Thomas D. Cobb & Kate O’Neill


           By Adam Chodorow & Philip Hackney

           By Lynn M. LoPucki

           By Justin McCrary, Joy Milligan, & James Phillips

           By Elaine Campbell

          By John C. Kleefeld & Katelyn Rattray

At the Lectern

           By Beth Hirschfelder Wilensky


           By Ronald K.L. Collins

Book Reviews

           By Duncan Farthing-Nichol

           By Michael Robertson


Law and Economics for the Read-Write Generation: A Review of Guido Calabresi’s “The Future of Law and Economics”

One of the great pleasures of this little book is that it does not attempt to be exhaustive. Reading it feels like being whisked through a behind-the-scenes tour of a chocolate boutique, with the chocolatier himself merely gesturing modestly at the lines of perfected squares behind the counters, and then enthusiastically pressing new creations upon you: would you try this one, where I have treated basil as if it were raspberry? How about a bite of altruism, which I treat just like any other taste or preference? Many flavors are familiar, others exotic; and some of the oddest combinations seem obvious when combined by the hand of a master.

It’s best, of course, to go on the chocolate tour yourself by reading the book. For myself, I want mostly to point to just two of my favorite pieces. The first is what Calabresi doesn’t want for the future of law and economics: he doesn’t want economic analysts of law to keep on talking at lawyers. That kind of unidirectional application of insights from one field to another—what he terms “Economic Analysis of Law”—just can’t capture or explain either “legal reality” or “human experience.” “In this sense,” he explains, in a move that grounds his vision of the interactive future, “while in Economic Analysis of Law economics dominates and law is its subject of analysis and criticism, in Law and Economics the relationship is bilateral.”

law and econ talking

In Calabresi’s view, the relationship between the disciplines should be based on a give and take, where each sometimes talks and the other listens. Calabresi’s view of the future of law and economics, then, is a distinctively friendly one: a social, creative, interactive future where economists and everyday lawyers meet over drinks to share their insights with one another, and to gradually illuminate the realities of human behavior. Is this the best possible future for law and economics? Whether it is or not, it may be the kind of future that the modern digital generation is best poised to make reality.

To expand on this thought, let me start by pointing to the second piece of the book I wanted to review: the book’s remarkable culmination, a wacky and/or brilliant exhortation to economists to help lawyers—and everyone, really—enjoy the simple, creative things in life: ordinary wine, child-rearing, macramé. Yes really: even the “now often devalued arts like knitting, quilt making, and lacework” have a central role to play in the future of law and economics. If this sounds crazy, well—it is. But what’s even crazier is that, if you read this book, you may—like me—end up with an uneasy inkling that it could also be true.

The fact that I am skipping from the beginning to the end should not dissuade the reader, and indeed, the ending is best savored in light of the craftsmanship of the preceding courses. These are delicious: the first the spicy critique of “economic analysis of law” sketched above, followed by a crunchy/soft confection of commodification and commandification, a peppery treatment of inequality, the unexpectedly smoothness of the insights on altruism, a carefully self-referential redux of the liability rule, a biting treatment “of tastes and values ignored.” Each builds on the previous until: at the zenith of this extraordinary collection of expertise, the book concludes with his sudden and even uncomfortable paean to ordinariness.

The impact of this conclusion is difficult to overstate. It is as if, after touring the boutique and having our minds blown by the chocolatier’s sheer mastery of his art, and the layered beauty created by this gift for pulling disparate ingredients together into an intuitive whole, the master ushered us out of the door by encouraging us to go home and make our own hot chocolate with Swiss Miss and tap water. Really? Really?

The author knows himself to be pushing the envelope here, and he is. Given the title, we are all on notice that this is supposed to be a book about the future of law and economics, but this is radical. Can law or economics really be ready for this kind of Warholization—for this deliberate exultation in the everyday and the mundane?

Well…perhaps. At the least, I think that this approach will find fertile ground with the so-called “read-write” generation: the generation of scholars developing now, who have always engaged with the world through digital networks, and who carry with them a presumption that scholarship—like the rest of their lives—involves listening and talking: reading and writing.

But before I develop that further, let me explain a bit more about how exactly Calabresi ends up where he does.

First, it’s worth noting that Calabresi is does not reject the extraordinary: but while fine wines, sexual acrobatics, and Yankees pitching may all be very well, he suggests they are rare and scarce and costly, and probably best left to professionals. Wouldn’t the world be better—wouldn’t there be more value, more happiness, more delight in the world—if people appreciated things that were common? Law can help shape people’s values, he points out, with a hat tip to critical legal studies. So why not shape values so that preferences can be commonly satisfied, so that achieving that which we hold dear is made easier instead of harder? Economists, he says, can help us—lawyers, society—with this: not by hiding behind a false objectivity, but by deriving principles based on articulated normative priorities. The key is to take principles constitutive of a desirable society, and to derive sub-principles, which can then be used to construct legal interventions. (An even more inclusive view might point out that philosophers might be helpful here as well in identifying the right goals, and that non-economics social scientists might be useful in observing human behavior and testing the impact of selected interventions.)

Calabresi even takes a quick first cut at what key values might be. He adds the two principles “more is better than less” (i.e. bigger pies are better than smaller ones) + “a more equal distribution is better than a less equal one” (i.e. that equal divisions of pie are better than unequal ones) to come up with the conclusion that = “any tastes or values that increase the desire for things which are in common supply in that society—for things that are not scarce—will yield a larger joint maximization.”

This is already a lot to consume—perhaps particularly for economists, whom as Calabresi recognizes, have historically experienced a pervasive queasiness at the thought of recommending some tastes or values over others. But Calabresi doesn’t stop there: he brings a third and even more provocative principle to bear, suggesting that people have a “desire to create.” In combination with the prior principles, this leads him to two questions—the kinds of questions, he argues, that an interactive law and economics can help answer, for the purpose of determining the desirability of specific law and legal structures. These are “[f]irst: What creative activities are broadly available to people who do not have unusual skills? Second: What can law do to further the desirability of such activities?”

And this is where the book steps into the ordinary. Calabresi lists a set of goods—fiber arts, common food, ordinary sex—that he suggests may be widely available. Economists have a critical role to play in identifying these sorts of goods, Calabresi says, and the relationship between law and economics should be one where lawyers can listen, learn, and respond to insights like these from economists. On this conversational model, the give-and-take between disciplines allows law to encourage things that economists point out would make society better off (and presumably?—although this is not the essay’s focus—to discourage things that would make it worse off).

While Calabresi mentions a number of goods that might fit into his categories, he doesn’t mention two that form the basis for much of the modern human experience: social goods, and technology. These are arguably also the building blocks for the creative recipes of the read-write generation. The idea here is that digital natives—people who have never known a world that was not connected through digital means—have a different set of expectations about how to engage with and understand the world around them. Conditioned by social media updates, blogs, and Youtube comments, they expect to participate in creating the world around them—in “writing”—instead of (merely?) passively reading the words of others. They curate Reddit threads; attach biting Twitter hashtags; label and re-label the same picture to create memes. The same generation embraces—often with self-conscious hipsterism—“DIY culture;” an emphasis on “doing it yourself,” whether the “it” is brewing their own alcoholic beverages, constructing homemade marshmallow guns, or using what Calabresi worries are the lost fiber arts to crochet pillows of the Star Wars Death Star. They even share tips with the world on how to make the perfect Swiss Miss hot cocoa. Some of these attempts are more impressive than others, but they all share a commitment to engagement, interaction and creativity. These goods are by no means scarce, in part because of the access allowed by technology, and in part because many are produced in part by the social processes that are also their product. Perhaps even most importantly, they already evidence a shift towards the kinds of values that Calabresi suggests society would do better to affirmatively embrace.

By the end of the book, I had a simultaneous feeling of optimism and foreboding. If Calabresi’s account of common goods is right, then the DIY nature of modern read-write culture is on exactly the right trajectory: in fact, economists and lawyers should all be working to find ways to use law to make more hipsters. At the same time, while networked engagement and creativity may generate significant social value, I worry that the ordinary may sometimes be substituted for the extraordinary. If posting hourly to Facebook means that our best writers never write novels, and our best readers spend their time on social media updates instead of Calabresi’s book, then something truly valuable is lost.

I’m honestly not sure, yet, what I think about the tradeoffs inherent in Calabresi’s final proposal. Regardless, however—and this may be the best test of the book’s success—I am left with an almost overwhelming urge to talk this book over with some economist friends. Possibly over a glass of ordinary wine. And if that’s the future of law and economics, please count me in.

the future of law and econ


Means and Ends in Law and Economics

Is law and economics about means, ends, or both? This question, which lies at the heart of Guido Calabresi’s intriguing new book, turns out to have no easy answer.  Law and economics is by turns imperialistic and indifferent, a dominating know-it-all and a deferential technician.  Often law and economics seems like a means-focused enterprise:  Give us a social goal, its practitioners offer, and we will find the best way there—the efficient way.  This accords with the lay definition of efficiency, which, according to Merriam-Webster, means “the ability to do something or produce something without wasting materials, time, or energy.” But what is that something that we wish to do or produce?  Here, as Calabresi observes, law and economics oscillates between open-minded acceptance of varying tastes and values and the reflexive dismissal of some tastes and values as unworthy of consideration—including, notably, many tastes and values relating to redistributive practices undertaken by society, and to altruistic practices undertaken by individuals.

Why should this be the case? A clue can be found in Calabresi’s observation that altruism “is a collection of goods that can substitute for each other as means, but also that are each wanted as different ends in themselves.”  It is entirely possible to rank and evaluate charitable efforts based on the effects that they produce in the world.  But many, if not most, charitable donors care less about the net impact of their donations than they do about helping particular others with whom they can identify, through particular means that seem intrinsically worthy.  The means, in short, are also ends in themselves.  And where ends are not shared, advice about means will fall short.

The same might be said about different methods of redistribution. Legal rules and the tax-and-transfer system can both redistribute income.  This makes them look like competing means to achieve the end of greater (or lesser) economic equality.  And conventional law and economics holds that one of these means, tax-and-transfer, plainly dominates.  But it dominates, if it does, only as a means to that broad end of increasing or decreasing overall economic equality. It does not, and could not, dominate as a means to achieve the very different sets of ends that are suggested by and actually embedded in other redistributive routes.  If many people are what Aanund Hylland and Richard Zeckhauser call “goods egalitarians,” rather than “income egalitarians,” then a move in the direction of equalizing income does not simply represent a speedier path to the same destination as could be reached by, say, subsidizing housing and medical care; rather, it involves substituting different ends for the ones originally chosen.

This point connects to Calabresi’s discussion of “merit goods,” one of the central ideas in the book. According to Calabresi, a merit good is one that many members of society believe should be allocated on some basis other than conventional market transactions.  As examples, Calabresi discusses kidneys, education, and avoidance of military service.  A significant part of the population holds such goods to be “pearls beyond price” that should not be commodified, or, accepting commodification in principle, abhors a market allocation that allows the rich to outbid the poor, given existing inequality. In this arena, Calabresi explains, law and economics tends to violate its own commitment not to judge preferences.  The most important aspect of preferences surrounding merit goods, as Calabresi describes it, is this: only some goods are merit goods; most are not. Many people can accept a certain level of general inequality in society, indifferent to the fact that the rich outbid the poor for run-of-the-mill goods, but feel a moral pain at the same kind of allocation for the subset of merit goods.

Significantly, this pain does not come from a generalized maldistribution but rather from its appearance in particular realms. Accordingly, addressing it through generalized redistribution would be cumbersome and ultimately infeasible; to redistribute at a level sufficient to remove painful inequities from these particular pockets of concern would conflict with other widely held preferences about maintaining market incentives in most domains. Thus, even if using legal rules to allocate merit goods in a way that benefits the poor seems inferior to tax-and-transfer as a means to address the general problem of maldistribution, it may be very well suited to serve a far more specific and widely shared end: avoiding the pain of allocating merit goods through the market.

What is more, as we have recently argued, such an approach may also turn out to be a more politically viable path for improving distribution overall, precisely because it accords with the preferences that many people hold.  There is no set quantum of redistribution that people are categorically prepared to engage in, regardless of its form; the shape that redistribution takes determines the ends that it is capable of serving, and hence the political support it will enjoy.  Likewise, charities that appeal to the human desire to help identifiable victims are not necessarily channeling money away from more effective causes, because the act of giving is itself endogenous to one’s selected ends.  Perhaps people should have different ends than they do—and perhaps law and economics can even help in that enterprise—but their existing sets of preferences cannot be dismissed.

Law and economics is, fundamentally, a method, a means, a way of thinking systematically about rules, policies, and institutions, but it is also an activity of engagement between disciplines, an end in itself. When we are in the true realm of law and economics, which Calabresi distinguishes from the economic analysis of law by the former’s sense of mutual engagement, the method operates not only to assess means, but also to ask questions about ends.  If law and economics can become more curious about why people and societies address questions of distribution in the way that they do, Calabresi’s optimism about the future of law and economics will prove well founded.


Roundup: Law and Humanities 02.05.16

An update on the Law and Humanities Scene, February 2016.


1.The Law and Society Association meets in New Orleans from June 2 to June 5, 2016. The theme of the conference is At the Delta: Belonging, Place and Visions of Law and Social Change. Registration opens in early February, 2016. More information is available at the conference website here.

2.The Association for the Study of Law, Culture, and the Humanities 19th Annual Conference takes place at the University of Connecticut Law School April 1-2, 2016. This year’s conference theme is Reading Race, Writing Race, and Living Race. More information is available at the conference website here.

3.The Kent Summer School in Critical Theory will run for the second time this year, in Paris, 13-24 June 2016. The website has just gone live.

This summer school for early career researchers and doctoral students aims to create a unique pedagogical experience, enabling leading critical thinkers to conduct an intensive 2-week seminar with members of a new generation of critical scholars.

Applications are now open to attend the summer school, and you will find application instructions on the website.

The teachers of the intensive seminars in 2016 will be Professor Samantha Frost, Professor James Martel, and Professor Bernard Stiegler. The website also contains information about the seminars, in addition to the school’s other events.


Read More


Markets, Morals and Guido Calabresi’s The Future of Law and Economics

Guido Calabresi is a dear friend and mentor, and like everyone else who knows his justly famous work, I was delighted to hear that he has a new book. One central theme of the book is his critique of conventional economists– for not doing what they say they do. They say they treat all preferences alike, but then they ignore some widespread popular preferences because, well, because these preferences just don’t fit well into a conventional economic focus on markets. According to Guido, people widely prefer not to use markets for some kinds of matters, for reasons of humaneness, justice, and generosity. Thus, for example, many people think that no one should be able to buy and sell babies or kidneys; they think educational opportunity should not depend on money; and they think health care is best supplied by altruistic institutions. Guido’s critique is that these uncomfortable non-market preferences are still preferences, and if economists really mean what they say about their neutral treatment of preferences, then economists should count these preferences too. But they don’t, and Guido takes them to the woodshed for this inconsistency. Then later he relents and suggests some ways to change their ways.
This is a quite resounding critique, written with Guido’s customary combination of incisiveness, bravado and charm. It was a great read, not only for this critique of conventional economics but also for many other fascinating discussions. Nevertheless, I found myself having a few qualms about the depiction of market transactions.
In the book, market transactions generally come off as cold, impersonal, and ruthlessly dog-eat-dog, by comparison to the market-rejecting sweet moral preferences for humaneness, equality, and altruism. I found myself wanting to say, hey, wait a minute, markets aren’t so bad! To you, reader, I would ask something like the following: Consider your circle of friends: haven’t you met a lot of them at your workplace? Perhaps even your spouse? Who are all those people whose work gets you a safe airplane ride—not just the TSA (please!), but all the factory workers, mechanics, flight personnel, baggage handlers, the lot. Why do you feel so confident about them?
I think there is a reason: markets and morals are not so separate. In fact, to a very considerable degree, they are all mixed up together. It is not hard to make the case that markets depend on moral values, and they teach moral values too, and in fact some of the same values that inform those preferences that supposedly reject market transactions.
To be sure, some disagree. Shortly after the breakup of the Soviet Union, a joke circulated in Russia, pondering why people accepted the blatant corruption springing up all around them. The answer was that everyone had been hearing for seventy years that capitalism is theft, and they wanted capitalism.
But wait, it was a joke! Capitalism is not theft at all, because cheaters and con men do not develop anything like viable commercial practices. Successful market practices rest on a culture of honesty, fair dealing, promise-keeping, and acceptance of limits on self-interest. At the outset of market relationships, there has to be a little nugget of generosity: someone has to take the risk of making that first “nice” move in the tit-for-tat game. If no one does, nothing gets off the ground; and if someone cheats later, things fall apart. Fair dealing and generosity are the factors that can start a cascade of reciprocity, building trust and trustworthiness, enlarging relationships–and subtly teaching the value of all those good things.
And speaking of teaching, market behavior has a relationship with democratic values, too. There is a lot of claptrap out there about how democracy needs capitalism, blah blah blah, without much thought about why. But insofar as there is something to the claim, a big part of it has to be a moral one. Market activity teaches the participants to attend to what the others want, to find overlapping interests, to put aside divisive but irrelevant disputes, and to proceed on the basis of consent rather than force. Those are practices and attitudes that democracies need, too. We do not have very many institutions that can act as schools for democratic decision-making, and we need to give proper credit to the ones we have. Markets are among them.
I know, I know, I am an apologist for doux commerce and the bourgeois virtues. Yes, indeed, markets can be vulnerable to meanness, cheating and overreaching. But those are not features that make markets work—quite the contrary. In any event, restraints on markets can be prim and stifling, while altruism can be smarmy and devious, and all a source of resentment and evasion. It won’t do to judge market activities by their flaws and non-market arrangements by their virtues.
But Guido knows these things as well as anyone I know. His book observes the costliness of non-market preferences and makes creative suggestions for mixing market and non-market approaches, and he certainly avoids the worst of some anti-commodification canards about markets. I just wanted his book to say more about market morality, and how markets too can teach the good human qualities he applauds.


Journal of Legal Education — Interview with Judge Harry T. Edwards on Legal Scholarship

Judge Harry T. Edwards

Judge Harry T. Edwards

The latest issue of the Journal of Legal Education is out and contains, among other things, my question-and-answer interview with Judge Harry T. Edwards on the topic of legal scholarship. The interview is prefaced with a short biographical profile of the Judge and closes with a bibliography of all his published works.

Among other things, the interview contains the Judge’s responses to some of those who have commented on his writings on legal scholarship (17 articles), including Judge Richard Posner, Dean Erwin Chemerinsky, and Professors Michael Dorf,  Lee Petherbridge, Pierre Schlag, and David L. Schwartz.

Here are a few excerpts [brackets added]:

  • [The only African-American] When I entered the University of Michigan Law School in 1962, I was the only African American in my class. I graduated very high in my law school class, earning a number of honors for academic achievement. Nevertheless, when I finished law school, many major law firms to which I applied for jobs rejected me. I was told quite frankly by some of the hiring partners that, despite my strong academic record, the firms would not hire a Negro. It was only when my white mentor, Michigan law Professor Russell Smith, pressed on my behalf that I received a job offer from a major Chicago law firm.
  • [Best kind of legal writing] In my view, “legal writing” at its best is precise, carefully reasoned, and well-supported (by both facts and governing principles). It should not be meandering, pointless, frivolous, or pedantic.
  • [Addressing law’s purpose] There are still law professors who express disdain for the practice of law, and offer no concrete proposals for reform. In my view, this is unacceptable. In constructing a vision of legal education, I agree with Professor J.B. White, who once wrote that, in order for legal academic work “to be of value to the law it is essential that the work in question express interest in, and respect for, the possibilities of what lawyers . . . do.” This means that a good body of legal scholarship must address law’s purpose of serving society. Not all legal scholarship, but a good body of it.
  • [Abstract scholarship] There is certainly value in some abstract scholarship. I have never doubted this. But it should not be preferred over other forms of scholarship. In order for legal scholarship to be relevant outside the legal academy, law professors should balance abstract scholarship with scholarly works that are of interest and use to lawyers, legislators, judges, and regulators who serve society through legal arguments, decision-making, regulatory initiatives, and enforcement actions. In other words, law schools, law reviews, and legal scholars should do a better job in producing scholarship that is of interest and use to wider audiences in society.
  • [Theory-laden articles] Law review editors have come to understand the law schools’ preferences for obscure philosophical and theory-laden material, in part because they have received so many articles of this stripe in recent years. And the law reviews have accommodated these forms of scholarship, largely without protest.
  • [Blogs] The worry that I have with law blogs (as with many Internet sites that purport to report and comment on the news) is that they sometimes report and comment too quickly on judicial decisions. As a result, blogs do not always capture the important nuances of an opinion or the precedent that underlies the decision.
  • [Gulf between academy & the profession] Unless law schools ensure that their faculties reflect a real balance of talent—i.e., including professors with strengths in both concrete and abstract scholarship and teaching—the current gulf between the profession and the academy will continue to grow and become even more distressing.
  • [Hitting a nerve] The reactions from the bench, bar, and academy [concerning my article “The Growing Disjunction Between Legal Education and the Legal Profession“] were more than anything I ever anticipated. One of my former colleagues at the University of Michigan Law School, who will remain unnamed, sent me a funny and poignant letter which said something like: “Obviously, you hit a nerve. And what is so amusing is that the members of the academy cannot simply dismiss your critique because you are a member of the academy and know what goes on in our ranks.”
  •       → There is more, much more, to our interview, so go here for the entire exchange. ←  


FAN 96 (First Amendment News) Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture

Upcoming: FAC 7 (First Amendment Conversations) — Richard Hasen discusses his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016) . . . and more.  Stay tuned.

* * * *

Plaintiffs have a continuing right of access under the First Amendment . . . to view the bison culling activiies that occur on public land, including Yellowstone National Park. — Complaint in Ketcham v. U.S. National Park Service (Jan. 26, 2016)

Last week Jamie M. Woolsey, Professor Alan. K. Chen, and Stefanie Wilson filed a complaint in a Wyoming federal district court on “behalf of journalist Christopher Ketcham and wild bison advocate Stephany Seay, who are seeking access to Yellowstone Park’s controversial bison trapping operations that lead to the slaughter of hundreds of bison. The lawsuit argues that the First Amendment guarantees citizens and journalists reasonable, non-disruptive access to the publicly funded national park.”

This is how their complaint seeking injunctive and declaratory relief begins:

I love this land and the buffalo and will not part with it . . .  These soldiers cut down my timber, they kill my buffalo and when I see that, my heart feels like bursting. —  Satanta-Kiowa Chief

According to an Animal Legal Defense Fund press release, “the National Park Service is scheduled to capture and facilitate the killing of up to 900 bison inside Yellowstone Park starting on February 15, 2016. During the capture and kill operation, the Park Service closes parts of the park to public access. ‘It’s ironic that to benefit Montana ranchers grazing their cattle—an invasive species—Yellowstone Park has agreed to facilitate the capture and killing of 900 American bison, an iconic, native species,’ said law professor and ALDF attorney Justin Marceau. . . .”

bison2“‘If the First Amendment right of access is to mean anything,’ Marceau went on to say, ‘it means that citizens and journalists should have reasonable, non-disruptive access to their publicly-funded national park to observe and memorialize one of the most controversial uses of national park land imaginable.'”

“‘Denying access to the park during this controversial publicly-funded wildlife slaughter campaign is very similar to the intent of Ag-Gag laws,’ said ALDF Executive Director Stephen Wells. ‘Such laws ‘gag’ would-be whistleblowers, journalists and activists by making it illegal to record and disseminate photos or footage taken in agricultural operations. ALDF has successfully proven Ag-Gag laws are unconstitutional under the First Amendment and we are confident we will do the same in this case.’ . . .”

The complaint alleges that “from the late 1990s until 2006, Defendants regularly allowed the public and the media to view the herding, trapping, sorting, and shipping of bison from the catwalks over the pens withint the [National Park].”

Jamie Woolsey, lead counsel for Plaintiffs

Jamie Woolsey, lead counsel for Plaintiffs

According to an Associated Press story, “Yellowstone spokeswoman Sandra Snell-Dobert said the restrictions are meant to protect park workers and the public. Moving and sorting bison can be dangerous, particularly within the narrow confines of the corrals, Snell-Dobert said. The lawsuit says such safety claims are exaggerated and that access to the corrals was routinely allowed until 2006, with no reports of anyone being injured.”

“‘It’s about public safety, but also about trying to reduce stress on the animal,’ Snell-Dobert said in a statement, adding that a large exclusion zone is necessary so that bison will feel comfortable enough to wander toward capture pens as they graze.”

→ Nature World News reports that the “driving force behind the large-scale bison cull is to reduce potential conflicts between the park and Montana landowners, as bison often travel outside of the park for food during the winter. Unfortunately, the arrival of bison instills fear in landowners that the bison will transmit a highly-infectious disease known as brucellosis to their cattle – even though there have been no such recorded instances to date.”

→ Hearing: February 3, 2016, District Court in Casper, Wyoming before Judge Scott Skavdahl. Professor Alan Chen will argue on behalf of the Plaintiffs in support of their motion for a preliminary injunction.

→ Related item: Steven Schwinn, “Park Service Inauguration Regs Don’t Violate Free Speech,” Constitutional Law Prof Blog, Jan. 28, 2016

NY Post Attacks Commission’s Ethics Rule Read More


Harry Truman and the Bill of Rights

Harry_S._TrumanMy research on the Bill of Rights is at a new stage, and I thought I’d talk about where that is going.

Two conceptions of the Bill of Rights developed in the first half of the twentieth century. One was the countermajoritarian version that we are familiar with and was expressed best by Justice Jackson in Barnette.  (Basically, that the Bill of Rights is about judicial review and protecting minority rights.) The other is unfamiliar today and is the focus of the paper that I’m submitting to this law reviews.  Let’s call this the “majoritarian” Bill of Rights, which refers to how that text was used to legitimate greater national authority over the states, foreign territories, and the economy.  FDR’s “Second Bill of Rights” speech was the most powerful expression of this idea.

Here’s the fascinating question.  Why did the first understanding oust the second one?  My working hypothesis is that the Cold War had a lot to do with this, and part of my evidence for this is the shift in Harry Truman’s rhetoric on the Bill of Rights during his tenure.  Truman talked about the Bill of Rights as often as FDR did and was the last President who did so in a substantive way.

How did Truman’s rhetoric change?  Well, in 1945 and 1946 almost all of his references to the Bill of Rights involved the majoritarian understanding I described above.  He was either talking about the GI Bill of Rights or FDR’s Second Bill of Rights (which Truman called an Economic Bill of Rights).  In 1947, though, Truman starts using the Bill of Rights as a cudgel against Soviet Communism and repeats that theme in many significant speeches until 1952.  More on that in the next post.


Pearls Beyond Price

Guido Calabresi is now in the sixth decade of his remarkable career as a scholar, Dean, and Judge. With luck there will be more to come, but in the meantime we have The Future of Law and Economics: Essays in Reform and Recollection (2016), his late-career reflections on the work of, and recommendations for, what he calls “lawyer economists.” Because my colleagues in this Symposium are focusing on the substance of Judge Calabresi’s explicit program, I will instead say a bit about the implicit message of the book.

The explicit program of the book is to urge lawyer economists to attend to, and when possible to model, what economists more generally find it difficult to deal with: merit goods, altruism, benevolence, tastes, and values. Much of the book consists of Calabresi’s explications of the nature of these phenomena, the reasons that ordinary markets do not, cannot, or should not be relied upon completely to allocate them, and the ways in which hybrids – what he calls “modified markets” and “modified command” (which is essentially modified regulation) — address and allocate them. Mainstream economists often have little to say about these devices, and Calabresi wants lawyer-economists, to whom he ascribes a greater willingness, and perhaps a greater ability, than ordinary economists, to break out of conventional patterns of economic analysis, and thereby to deal with, analyze, and contribute to the ways we can think about hard-to-quantify but important phenomena and make better policy about them.

In addition, however, I think that there is an implicit program in the book, though perhaps “implication” would be a better term, because I am not sure that it was even consciously in Calabresi’s mind when we was writing. But this implication is certainly part of what I came away with. The implication concerns what the rest of us, who are not directly his audience, should do, and it follows pretty automatically from what Calabresi hopes lawyer-economists will do. The rest of us also should attend to merit goods, altruism, benevolence, tastes, and values, even if do not have the skills to model them, quantify them, or demonstrate with precision how they figure in what we are analyzing. I don’t want to put words in Calabresi’s mouth, but the message I received, as someone who does not do modeling, is that — to give just a single example of what could be many — we should not talk about the internalization of costs through tort liability without recognizing that one of the reasons we impose liability is because the rest of us, even when we are not victims, lose something when others suffer. Perhaps at some point lawyer-economists will be able to model this phenomenon, but in the meantime the rest of us should not be thinking that a simple negligence calculus is all we would ever need in order to determine when to impose liability for accidental injury, or that any number of other legal rules are simple reflections of simple values.

Because, deep down, Calabresi is fundamentally a teacher, the book is in a sense is an extended lecture in print. His scholarship, for all of others’ identification of some of his most celebrated, earlier work with a preference for strict liability over negligence, is often essentially positive rather than normative. Both his scholarly and his personal energy are heavily devoted to explaining. And that is what someone who is always teaching does: explain. Sit down with him for a chat about torts, or insurance, or constitutional law, or baseball, or Yale, and his side of the conversation will often consist largely of explanation.

Thus, although the book is ostensibly and expressly about his hopes for a certain kind of future for law and economics, in a larger sense it is an explanation of how rich and complex both ordinary life and the life of the law are, and how conventional economic analysis of law so often misses this richness and complexity. In the past Calabresi has contrasted messy reality with the artificial and simplistic “wonderful worlds” conjured up by some other scholars. This book, in contrast, is effectively a tribute to the actual wonderful world in which has lived, a wonderful world that is full of pearls beyond price, kindness, and difficult or impossible-to-quantify treasures of many other kinds. All of these he has loved, and has been interpreting and savoring, for an entire career. Do not ignore these things, his book said to me, for you cannot understand law, or life, without understanding and deeply appreciating them.