Researchers trying to rate and rank judges have high aspirations. Some suggest that their measures of quality can be used to select judges for advancement, to determine what backgrounds produce the best judges, and to identify models to whom fellow judges can defer. This response to their efforts has three parts. Part I critiques some of the work to date. (The critique is brief because it was the principal subject of a prior Duke symposium.¹) It argues that ranking—and even rating—judges is unlikely to produce the promised benefits; that the measures thus far used by social scientists miss the mark; and that those measures, to the extent that they influence judges, could encourage bad practices. Part II, the heart of this Essay, lists desirable qualities in appellate judges. Perhaps social scientists can find methods to measure these qualities objectively and accurately. Part III concludes, however, that even if social scientists cannot find such methods, efforts to identify the qualities of a good judge can be beneficial if they spur intelligent, respectful dialogue to encourage conscientious judges to improve their work.

I.
Rating and Ranking Judges

Based on my observations and experience, some of the hopes expressed for rating and ranking judges are quixotic. For example, it would be remarkable if the electorate or an appointing authority made decisions any differently if candidates for judicial advancement were ranked by social scientists. Once a candidate passes the “qualified” hurdle, decisions are more likely to be made based on political and interpersonal skills. Likewise, studies of those judges who are ranked highly are unlikely to reveal what backgrounds produce the best judges; my personal experience is that excellent judges come from all sorts of backgrounds. And although law clerks may tend to refer their judges to opinions by highly ranked authors, the judges themselves are unlikely to pay obeisance. Most judges are independent sorts, with sufficient egos not to be dazzled by prestige. They do not adopt an idea just because it comes from a renowned person; they need to be persuaded on the merits.

In addition, I question whether the task of rating judges can be done well, and I worry that defective rating methods can have adverse consequences. Recent research has attempted to develop objective measures of judicial quality. As some participants in this Symposium have observed, however, the research appears to be driven by the availability of data. That is, social scientists have limited themselves to data that can be collected from available sources and then convinced themselves that certain subsets of that data reflect judicial quality, enabling them to rank judges accordingly. But although such measures can be precise, they may not measure what is useful and may encourage questionable conduct, as has happened in response to ratings of educational institutions. For example, I doubt that a judge’s independence can be captured by counting the number of dissents or disagreements with colleagues (either all colleagues or only those of the same political party). A judge who disagrees may simply be close-minded and unable to persuade colleagues. Worse, if a judge’s reputation turns on the frequency of disagreement, those seeking to improve their stature may try to find grounds on which to disagree, rather than making an effort to find common ground. Or if one measures a judge’s contribution to the law by how often the judge is cited, judges (who are well aware that the best way to get cited is to be the first to opine on a subject) may be tempted to produce more dicta and address issues not presented by the parties.

But replacing objective measures by subjective ones is not the answer. Reputation is a measure that feeds on itself, at times with very little of substance to support it. The compliment “highly underrated” can be as useful in describing judges as football players. Evelyn Waugh once observed that one can acquire a great reputation by being “dogmatic, plausible, and vain.”² Judicial reputations are hardly immune from questionable influences.³

II.
Judicial Quality

As the organizers of this Symposium have suggested, rather than starting with measures for which there are data and then deciding what those measures say about quality, perhaps one should reverse the process, deciding what constitutes judicial quality and then exploring how to measure those constituents. This Section responds to that suggestion with a list of what I believe to be desirable qualities in an appellate judge. Others may use rather different measures. Academics may be most concerned with whether the judge’s opinions are good teaching tools and raise interesting ideas. Attorneys may be most concerned with whether their clients win. Politicians may like judges whose opinions reach results that achieve wide popularity.

My perspective, of course, is that of an appellate judge. I will try to answer the question: “What do you look for in a fellow judge?” I am sure that to some extent my views are idiosyncratic. But I believe that each of my criteria would receive the support of a large fraction, perhaps a majority, of appellate judges.

Before I set forth my criteria, I would point out one possible criterion that is absent: to be a good appellate judge, a colleague does not have to agree with me. Any appellate judge with only a modest amount of experience would recognize that if “agrees with me” is a necessary criterion for a good judge, then only one judge would meet the standard. The simple truth is that no judge’s colleagues are as insightful and wise as the judge himself or herself. Criteria should be attainable in the real world.

I will group my criteria under four headings: Treatment of Colleagues, Treatment of Litigants, Treatment of the Law, and Treatment of the Institution. My order of discussion is not meant to suggest order of importance.

A.     Treatment of Colleagues

A good judge treats colleagues fairly. If it is true that ninety percent of life is just showing up, then treatment of colleagues belongs in the other ten percent. Just showing up won’t cut it. Colleagues should do their share of both the glamorous and the nitty-gritty work of the court. The part of a judge’s work to which the public pays most attention is the production of published opinions. But a judge who focuses only on producing published opinions is not a good colleague. To be sure, most judges would like to devote a greater percentage of their time to working on published opinions that raise challenging issues (although taking a break to resolve a routine case can often bring a welcome sense of accomplishing something). But writing a published opinion in a case that does not warrant it (because it says nothing new) wastes paper and the time of those who feel a need to read it. More importantly, if a judge shirks all duties except the preparation of published opinions, the other, less-interesting duties are shared disproportionately by the judge’s colleagues. These duties include participating in calendars of cases that are likely to result in unpublished opinions, disposing of motions, and serving on one of the many committees that handle court rules and administrative matters. Judges have different interests and may prefer some of these tasks to others. Which they select is immaterial; the important thing is to do one’s share.

B.     Treatment of Litigants

The first duty of appellate judges is to decide the cases before them. The process of decisionmaking must be fair, and appear to be fair, to the litigants. The fairness of treatment on appeal, unlike the fairness of treatment at trial, cannot be measured on the basis of face-to-face encounters. Appellate judges rarely are seen by the parties to a dispute; and most of the time they are not seen even by the parties’ attorneys (and then only for a few minutes, in the highly artificial setting of oral argument). Thus, fairness must be assessed by reading opinions. An opinion reflects fairness to the litigants when it has the following features:

1.   Takes Care with the Facts

The factual context of a case should be stated fairly (including “unfavorable” facts) and accurately. If a fact is worth incorporating in an opinion, it is worth setting forth correctly. Not all facts in an opinion are critical to the resolution of the dispute; but it is important to check the accuracy of even background facts, because an opinion that treats facts cavalierly will suggest that the court has been inattentive to the case. Perhaps the easiest way for a losing attorney to convince a client that the court did not give fair consideration to the client’s contentions is to point out that the court omitted important facts or did not get the facts straight.

2.   Sticks to the Record

An appellate court should decide the case on the record produced in the lower court. When the court goes outside the record, it relies on matters that the parties had no opportunity to contest and that the lower court had no opportunity to take into account. To go outside the record to resolve a dispute will thus offend the sense of justice of the party injured by the practice, and will also likely frustrate the trial court that is being reversed on grounds not presented to it.

3.   Addresses the Parties’ Contentions

A party will not feel that the court has acted fairly if the court does not address the party’s contentions on appeal. This is not to say that every contention must be resolved on the merits. Often a contention is mooted by the resolution of another issue. The court also may refuse to consider a contention because it was not preserved below or not properly presented on appeal. In addition, unfortunately, some briefs are so poorly prepared that the court must characterize the party’s contentions differently than the party did, and thus the issues addressed in the opinion may not match the party’s listed contentions. A good judge, however, will take care that the opinion recognizes all properly presented arguments. I can understand why a court may occasionally write something like, “We have reviewed appellant’s other arguments and none has merit”; but I am not fond of the practice. At the least, I would want to state that the appellate court substantially agrees with the lower court’s analysis of the issue.

4.   Is Evenhanded

A judge should be evenhanded, applying the same rule of law in a similar fashion to all parties. A judge may be either strict or lenient about what it takes to preserve an issue; but the judge should not be lenient when considering preservation by a personal-injury plaintiff and strict when considering preservation by a personal-injury defendant. Similarly, a judge may have lenient or restrictive views on when parties are entitled to standing; but the judge should not be lenient for those exploiting mineral resources and restrictive for those opposed to such exploitation. Of course, there are exceptions to the general rule. Pro se litigants should be granted some leeway, so long as the court does not become their counsel. And the government can be expected to toe the line more closely than others. But lack of evenhandedness can be the most telling indication of appellate bias against an individual litigant or category of litigants.

C.     Treatment of Law

Although an appellate court’s first duty is to decide the case before it, the legal doctrine set forth in the court’s opinion is almost always the most important consequence of the court’s decision to society as a whole. It matters little to the general reader of the opinion whether the court erred in its decision because it got the facts wrong, went outside the record, or failed to consider an argument by the losing party. A distinct set of considerations governs whether a judge does a good job in setting forth legal doctrine. A judge’s opinions should satisfy the following criteria:

1.   Describe the Case Law Honestly

Even when precedent does not determine the result in the case, prior case law is likely to impose significant constraints or be persuasive. The reader of an opinion should be able to assume that the author accurately describes the facts and holdings in cases cited in the opinion. Of course, progress (or at least development) in the law often occurs when precedents are re-examined and recharacterized, and a “better” explanation is then provided for the results in those cases.⁴ But there is no reason for a court today to be deceptive about what it is doing in that regard.

2.   Help Develop the Law

A good judge contributes to the development of the law. I do not mean that the good judge always “gets it right.” Early in my career I agonized about whether I was stating the law absolutely correctly. Then I realized that I simply do not have the experience and intelligence to come up with all the relevant considerations, much less wisely evaluate them, in deciding how to frame a rule of law. All I could expect from myself was to work as diligently and intelligently as I could on the matter. I can hardly expect more from others. But even if the judge does not get it right, the judge can make a contribution by sharing the product of his or her diligence and intelligence. Perhaps the most important component of this contribution is clarity. Rather than just pronouncing the result, the opinion should clearly explain how the court arrived at its conclusion. If the judge believes that there are three important considerations supporting the conclusion, the opinion should recite those considerations and explain how they interact to compel the result. Others may later show that there are really four important considerations, but the judge who came up with the first three has made the analysis easier for those who follow. I value judges who advance the law by sharing the product of their diligent, intelligent efforts, even when I disagree with their conclusions. One of the joys of appellate judging is the interchange of ideas that leads to a better opinion than any single judge on the panel could produce; this interchange can be among judges who agree on a result, but the best work often comes when there is a dissenting voice.

3.   Be Consistent

A judge should be consistent in the process of arriving at doctrine. For example, does the judge have a consistent practice in deciding whether to overturn a precedent or to apply stare decisis? A judge could consistently decide to overturn precedent whenever the judge believes the precedent to have been poorly reasoned; but then the judge is not entitled to rely on stare decisis doctrine to criticize fellow judges for overturning a precedent that they believe to have been poorly reasoned. If a judge bases a constitutional doctrine not on the specific language of the Constitution but on the structure created by the document, the judge cannot criticize others for using the same methodology to reach a result opposed by the judge. Likewise, judges should be consistent in applying canons of statutory construction and in using the results of research in the hard and soft sciences.

D.     Treatment of the Institution

The authority of courts in this country is founded on the reputation of the judiciary. An appellate judge has a duty to contribute positively to that reputation. The judge’s work may well advance the reputation of the judge, but it should not do so at the expense of the courts themselves. A few thoughts on what makes judges good in this respect:

1.   Persuasiveness

Courts may have the power to rule however they wish. But their legitimacy is based on the persuasiveness of their opinions. Accordingly, I value colleagues who write coherently, logically, and convincingly.

2.   Respect for the Courts and the Reader

Persuasiveness of opinions may be the most important factor in establishing the legitimacy of judicial decisions, but it is not the only one. The style and tone of an opinion can also advance or detract from the prestige of the deciding court and of the judicial system as a whole. Opinions that carp at or demean other judges or their work can only cause the public to adopt a similar attitude. And attempts at eloquence that degenerate into bloated prose can provide ammunition for the view that the courts have lost touch with the community.

3.   Modesty

The purpose of writing opinions is not to create a reputation for the author. Grand pronouncements, declarations of “new” legal principles, and treatise-like discussions that go beyond the needs of the case may well establish the author’s brilliance. But they are at least as likely to be examples of “writing more than one knows”⁵ and thus provide numerous opportunities for later judges to correct errors and cabin dicta. Such writing can also create an aura of judicial willfulness. Judicial craftsmanship often consists in explaining how the law expressed in an opinion follows naturally from prior case law. The more an author signals that the law expressed in the opinion is essentially the creation of the author’s brilliance, the less the reader will be convinced that the court’s work represents the rule of law rather than the rule of persons who happen to be judges.

III.
Measuring Quality

Now that I have listed what I believe to be attributes of a good appellate judge, one might ask what good the list does. Perhaps some of the listed attributes can be measured objectively. After all, experts have developed ways of determining how much time it takes trial judges to perform various tasks; and the time may come when someone believes it possible to measure whether an appellate judge is doing a fair share of the court’s work. Also, measures that are not totally objective may be developed to evaluate whether a judge treats litigants evenhandedly or develops legal doctrine in a consistent manner. I have my doubts. Yet even without such measures, a list of desirable qualities can serve a useful purpose. The most productive engine for improving judicial performance is the conscientiousness of those who wear robes. If judges and the consumers of their work can exchange views about desirable qualities for appellate judges, then judges who care about their craft (who comprise the great majority of the profession) can consider those views and conduct periodic self-evaluations. I frequently see my colleagues borrow good practices from one another, often without any discussion between them. I am confident that as judges engage in conversation and introspection regarding quality, we will continue to improve the way we do our jobs.

Acknowledgments:

Copyright © 2010 Duke University Law Journal.

Harris Hartz is a Judge on the U.S. Court of Appeals for the Tenth Circuit.

One kind of empirical study of judicial decisionmaking might be regarded as continuous with the broader goal of social science, which I take to be something like understanding human behavior in general. I see the ultimate aim of this sort of empirical inquiry as developing a theory that explains and predicts judicial decisionmaking in roughly the same way a psychological theory might seek to explain and predict other observed phenomena of human behavior, such as the tendency to obey authority. Just as a successful psychological theory of obedience might, among other things, identify the conditions that explain why and predict whether a given subject will obey an order given by an authority figure in a particular context (for example, personal characteristics of the subject, the subject’s relation to the authority figure, the nature of the order, and its expected consequences), one might likewise consider an empirical theory of judging in this vein successful if it allows particular conditions to be identified—for example, political ideology, characteristics of the litigants, particular features of a case’s history, or the provenance of relevant precedent—that explain and predict judicial outcomes.³

Within this broadly defined empirical project of explaining and predicting judicial decisionmaking as human social behavior—one might call it the project of “naturalizing jurisprudence”⁴—there are multiple theoretical perspectives that might be relevant. A single type of observed judicial decisionmaking might be understood simultaneously through the frameworks of sociology, political science, social psychology, cognitive psychology, and perhaps even neuropsychology. Whether or how all these empirical perspectives might be integrated remains unclear. Presumably, a grand unified theory of judicial decisionmaking is no more and no less likely than a grand unified theory of human behavior in general. All of these scientific perspectives may be viewed as having one common, general aim: they seek to provide causal explanations of judicial decisions—theories that identify the causal predicates of observed decisions and do so with predictive power.⁵

A second type of empirical study of judicial performance seems quite different in its basic aim from the project of naturalizing jurisprudence. The goal of this second type of study might broadly be described as identifying quantified measures of good judicial performance—for example, citation counts, dissent rates, and productivity—that can be used to assess and even rank the quality of sitting judges, judicial candidates, and courts. This type of undertaking can be seen as a way of compiling otherwise inaccessible information that would presumably be of significant value to public officials, the citizenry, and judges themselves in evaluating and monitoring judicial performance. Public ratings of judges and courts based on this information might have the added desirable effect of sussing out the opaque criteria that various political actors use to champion particular judges or candidates, insofar as those ratings would exert pressure on such actors to give public explanations supporting any low-rated candidates they seek to promote.⁶

What is the relationship between these two empirical projects of naturalizing jurisprudence and of measuring judicial performance? One possibility is that the need for objective measures of judicial performance is a function of the current infancy of the science of identifying the causes of judicial decisions. That is, objective measures that serve as proxies for judicial quality are only necessary because of the lack robust theories that would predict how a particular sort of judge would likely decide a particular sort of case. If such a theory existed, there would be no point in trying to develop any general measure of judicial quality.

An example may help draw out the intuitive appeal of this conjecture. Suppose one could prove that in any case possessing the set of features F, involving a party with characteristics P, a second party with characteristics D, and given additional specifiable conditions C, a judge with a set of characteristics J will always decide the case in a way that is favorable to the party with characteristics P, whereas a judge lacking J will always decide against that party. One might argue that this postulate, if true, would undermine the relevance of any generic notion of judicial quality—apart from whatever constitutes J characteristics—in the context of cases with features F. If one could predict how any particular judge would decide this type of case, there would be no need for further information about the judge’s qualities, at least in that limited context. And if analogous predictions could be made with respect to cases with features F1, F2, and so on, and judges with characteristics J1, J2, and so on, there would be no more reason to care about measuring judicial quality in the context of those cases. Thus, the more progress empiricists make in the project of reducing judicial decisionmaking to its natural causes, the less relevance any project of measuring judicial performance will have.

One might argue, in other words, that judicial quality matters because better judges presumably will make better decisions. But if it were possible to predict judicial decisions in the manner postulated, then no one would have reason to care about generic measures of judicial performance. There would be no reason to fret over proxy measures of good judicial decisionmaking if social science could deliver a theory that directly predicts how a particular judge or candidate would decide particular kinds of cases.

I believe that this argument should be rejected. This argument’s fallacy involves its reliance on the implicit assumption that empirical measures of judicial performance are, at their core, nothing more than an indirect attempt to accomplish one of the goals of the project of naturalizing jurisprudence—namely, developing a theory with the power to predict the outcome of judicial decisions on the basis of specifiable causal predicates. But the project of measuring judicial performance need not be assimilated to that of theorizing the causes of judicial decisions. Rather, the project is fundamentally normative and evaluative in character. The basic question is not about the causes of decisions, but about what makes a good judge, or what constitute the basic virtues of a good judge.⁷ Whereas the naturalizing project seeks to provide causal explanations for judicial behavior in a manner continuous with social science, the empirical study of judicial performance seeks to make explicit and then reduce to numbers our value judgments about the relative merits of selected characteristics of judicial performance. The ultimate test of a causal theory is its explanatory and predictive power. The test of a measure of judicial performance is ultimately the normative plausibility of its embedded value judgments about the core virtues of a judge and how well it captures those judgments.⁸ The two projects have incommensurable aims.

There are, however, some important caveats. I do not deny the potential relevance of the findings of naturalized jurisprudence to the project of measuring judicial performance. For example, some observers might think that any evaluation of judicial performance should incorporate criteria that capture something like political independence or capacity for “nonideological” decisionmaking.⁹ But what if there were empirical evidence that indisputably established that, as a matter of fact, political affiliation almost always predicts judicial outcomes in certain types of cases? I suspect that if that were the case, there would be reason to doubt whether criteria aimed at measuring political independence could possibly capture anything meaningful. Standards of judicial quality must be tempered by contemporary knowledge regarding the limits of human psychology. This is a consequence of the basic moral premise that “ought” at least in some sense implies “can.” To that extent, the study of the causes of judicial behavior is potentially relevant to the project of measuring judicial quality. My point is not to deny this possible point of congruence, but rather to emphasize that society’s concept of a good judge is not simply given by how most judges in fact tend to behave. Findings in the science of judicial behavior cannot themselves determine the normative standards by which judges should be measured and evaluated. This is a consequence of another basic moral premise, namely, that “is” does not imply “ought.”

The other caveat is that my remarks assume that it is possible to construct a model of a good judge that is at least to some degree independent of considered preferences relating to case outcomes. This assumption means, among other things, that a judgment about whether a particular individual would make a good judge is not simply reducible to a set of predictions about the outcomes of cases that would come before that individual. But what if one were to reject this assumption? What if the concept of a good judge that best reflected societal and legal norms did in fact turn out to be nothing more than a reflection of collective preferences about case outcomes?¹⁰ In that case, I do think that measures of judicial performance that captured the concept might be collapsible into predictions of judicial behavior. That is, if society’s notion of a good judge turns out to be nothing more than a set of predictions about the likelihood of a judge’s reaching particular outcomes in particular cases, then measures of judicial performance would be nothing more than proxy predictions about what judges would probably do in such cases. It might follow, then, that my claim—that the project of measuring judicial performance is fundamentally distinct from the project of determining the causes of judicial decisions—depends on the defensibility of a particular kind of concept of a good judge, namely, one that is not tied to the desirability of specific outcomes in particular cases.

I do not think that this conclusion does, in fact, follow. Even if this sort of cynicism about the concept of a good judge were warranted, I believe that the project of naturalizing jurisprudence would still remain fundamentally different from the project of quantifying judicial performance, because the latter is essentially a normative endeavor in a way that the former is not. Even if every theorized measure of judicial performance turned out to be nothing more than an elliptical predictor of a particular set of case outcomes, every theorist’s proposed measure of judicial performance would still be answerable to questions about its underlying normative conception of a good judge. Empirical theories about the causes of judicial decisions need not answer these questions.

Pretend, for example, that one could show that measures of judicial performance that depend on citation counts tend to highly rank judges who are more likely to invalidate legislation in federal constitutional cases. If that were true, then commentators might observe that these performance measures are empirically reducible to predictors of how judges will decide those kinds of constitutional cases. This finding would not, however, undermine my central argument, which is that the project of empirically measuring judicial performance, in contrast to the project of identifying the causes of judicial decisions, is fundamentally normative. The discovery of a sufficiently tight predictive correlation between citation counts and a disposition to invalidate legislation might support a claim that any interest in the former as a measure of judicial quality is really nothing more than an indicator of a preference for the latter outcome. But the question that this discovery would not and could not answer is whether anyone should therefore stop using the citation count measure as a benchmark for judicial performance. Arriving at an answer would require normative discussion about principles of judicial evaluation—principles that specify why certain considerations should count as legitimate reasons for or against appointing someone as a judge. Any given measure of performance may collapse into a prediction about substantive case outcomes. This possibility does not show, however, that the measurement project itself collapses into a predictive one. Whatever an empirical theory of judicial performance might in fact be measuring, it must always answer one normative question that a purely predictive one need not answer: should the measures in question form the basis for evaluating judges? For this reason, the project of measuring judicial performance is inescapably normative in a way that the goal of naturalizing jurisprudence is not.

Studies of judicial performance that seek to determine judicial quality by quantitative measures (such as citation count) will ultimately stand or fall on the strength of the normative reasons that can be marshaled for valuing as judges the kind of individuals who do well on those measures. Empirical measures of judicial performance ultimately depend on normative claims about what it means for someone to be a good judge, and the strength of any proposed empirical measure is necessarily a direct function of the strength of the justification of those normative claims. Theories about the causes of judicial performance do not depend on these justifications. And no purely empirical project can supply those justifications. That is a task for normative, not empirical, inquiry.

Acknowledgments:

Copyright © 2010 Duke University.

Patrick S. Shin is an Assistant Professor at Suffolk University Law School

Larry Alexander and I have written at some length about the function of rules in legal decisionmaking.¹ Briefly, we argue that, from the central perspective of someone designing a legal system, it is desirable that at least some range of legal disputes be governed by general, determinate rules, and that these rules be treated as authoritative. To treat a rule as authoritative is to follow it in all cases that fall within its terms, without further analysis of the underlying purpose or rationale that motivated the rulemaker to announce the rule. From a systemic perspective, authoritative rules are attractive for several reasons. Rules, if they are generally obeyed, can help their subjects avoid errors and biases that distort case-by-case judgment. Rules can also provide coordination if all or most subjects treat them as authoritative. Individuals can act more effectively if they know what others are likely to do, and an authoritative rule makes it possible to predict others’ conduct in situations governed by the rule.

At the same time, the generality of rules often leads to overinclusiveness in application. As a result, rules will sometimes prescribe outcomes that are wrong, judged by the rules’ own purpose or rationale. Yet the overinclusiveness of rules does not alter the conclusion that rules function most effectively when treated as authoritative. If a rule is well designed—that is, if the rule will prevent more errors overall than it will cause through overinclusiveness—then it is best, from the perspective of the system designer, that those who are subject to the rule follow it in every case to which it applies.²

The difficulty with authoritative rules is that it is not at all clear how rational subjects can treat rules as authoritative. If a rule appears to give the wrong answer in a particular case, the rational choice is to disobey. The subject may understand that rules prevent errors of judgment, but if the subject also understands that rules are overinclusive, the subject may nevertheless conclude that his judgment is correct. The subject may also understand the coordination value of rules, and yet conclude that the error that will result from following a rule in a particular case outweighs the loss of coordination that will result from a single act of disobedience. In each case, the subject may be wrong, but this does not make it subjectively rational to follow the rule.³ The consequence is an unbridgeable gap between the perspective of those who oversee the legal system and the perspective of those subject to the system’s rules.

Judges occupy two positions in this account of legal rules. First, they act as rulemakers. Judicial opinions often contain prescriptive statements that are determinative enough to count as rules and are intended to serve as decisional standards in future cases. Assuming the rules are well designed in the sense described above (assuming, that is, that the rules will prevent more errors than they generate over the long run), the legal system will benefit if future judges, as well as future actors, treat them as authoritative: judicial rules, no less than legislative rules, can reduce errors and provide coordination.

In addition to serving as rulemakers, judges also apply rules to the cases litigants bring to court. When judges apply rules, their perspective is similar to that of rule subjects. If a judge is persuaded that the governing rule provides the wrong answer (as indicated by the rule’s underlying rationale) in a particular case, applying the rule will seem both irrational and unfair. Moreover, the judge may find it difficult to give due recognition to the long-term advantages of the rule, because the judge’s attention is focused on the specific facts of the case.

This view of rules and the roles they play in judicial decisionmaking leads to a number of empirical questions about how judges respond to rules. The most basic question is whether judges treat rules as authoritative. Do judges apply rules only when they are persuaded that the outcome of the rule in the case at hand is consistent with the rule’s purpose or rationale (or is correct, all things considered)? If so, the answer to the basic question is no; rules have no real consequences for adjudication, and the various Legal Realist speculations about what drives judicial decisionmaking come into play.

Assuming that judges sometimes do follow rules simply because they are the rules of the system, the next question is how deeply judges are committed (or how thoroughly they are habituated) to following rules. Do judges follow rules without reflection only when the purpose or rationale of the rule has not been brought to their attention? Do they refuse to consult the rationale or purpose of an established rule if the terms of the rule apply uncontroversially to the case at hand? Do they also follow rules in conscious disregard of the rule’s purpose or rationale, when the rule’s purpose or rationale appears to conflict with the result it prescribes?

If the answer is that judges who follow rules do treat the rules as authoritative against their own best judgment about what outcome is best, subsidiary questions arise about the conditions under which judges are willing to suspend judgment and follow rules. For example, the rule in question may be defective, in the sense that it generates more errors than it prevents overall. Alternatively, the rule may be sound, in that it prevents more errors than it generates overall, and yet misfire in a particular case. Here, the question for investigation is whether differences in the overall quality of the rule affect the level of judicial obedience to the rule.

Another subsidiary question is whether differences in the vividness of the facts presented for adjudication affect judges’ responses to precedent rules. Here, the variable is not the quality of the rule, but the salience or affective impact of a seemingly wrong outcome required by the rule.⁴ The question for investigation is whether judges approach rules consistently in different factual settings, or, alternatively, whether their treatment of rules varies according to the exigencies of particular cases.

These questions are obviously hard to answer. Written opinions may provide some evidence of judges’ attitudes toward rules, but only when judges perceive the dilemma of rule-following and also have reason to discuss it in the course of explaining their decisions. This set of circumstances may be rare; in any event, opinions that directly address rule-following are not likely to yield a representative sample of judicial responses to rules.

A more promising approach might be to conduct controlled experimental studies on judicial subjects. The logistics of this form of research are daunting, but work by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich suggests that it can be done.⁵ As an illustration, consider the following stylized example. (Many refinements would be needed to produce a workable test.) A group of judges is presented with a problem case. The defendant is a retired veterinarian who has just moved to a new neighborhood. In his backyard, he keeps a pet giraffe. The defendant treats the animal well and provides it with ample space. The giraffe is a quiet animal with no violent tendencies, and it has no negative sensory effects on neighbors. The defendant kept the giraffe for several years in another state without incident or complaint. Neighbors have sued, claiming the giraffe is a nuisance and requesting an order requiring the defendant to remove it from the neighborhood.

To capture variations in legal rules, some judges might be told that prior cases establish that keeping a wild animal in a residential neighborhood is a nuisance per se. This is, presumably, a sound rule—over the long run, it will tend to prevent harm and offense, though it may sometimes result in the elimination of unobjectionable pets, such as the defendant’s giraffe. Other judges might be told that prior cases establish that keeping a large animal in a residential neighborhood is a nuisance per se. This rule looks too broad: it may do more harm than good over the range of cases to which it applies. Judicial subjects would be asked to decide the case and possibly to comment on the outcome. A significant number of decisions in the plaintiffs’ favor might suggest that rules influenced the judges’ decisions, particularly if the judges signified discomfort with the outcome of the case. If results were roughly the same for both versions of the problem, the inclination to follow rules would seem impervious to the quality of the rule. If, however, outcomes varied according to the version of the precedent rule presented to  judges, this would suggest that judges deciding whether to follow rules are likely to discriminate according to the quality of the precedent rule.

The facts of the experimental problem could also be varied to detect the influence of vivid facts. For example, some judges might not be given any personal information about the defendant; others might be told that the defendant rescued the giraffe from sordid conditions in a private zoo. In this case, variation in decisions would indicate that judges deciding whether to follow rules discriminate according to the salience of the factual consequences of applying the rule.

A second set of questions relates to the role of judges as rulemakers. Frederick Schauer has suggested, very plausibly, that the quality of judicial rules may suffer as a result of the adjudicatory context in which judges work.⁶ In particular, a judge focused on the salient features of a litigated case may adopt a rule that responds to those features, without adequately considering the effects of the rule in other cases that fall within its terms. The judge may assume, in other words, that the present case is more typical than it is—more representative, as a cognitive psychologist might say—of cases governed by the rule. A tame and odorless giraffe, for example, might not typify wild animals kept as pets.  If so, the rule is likely to prove unsatisfactory over time.

The initial question is whether Professor Schauer’s suggestion—that judicial rules may be adversely affected by the adjudicatory setting from which they emerge—is correct. If so, a further question is whether certain features of the judicial process can help avoid or decrease the distorting effects of vivid facts. For example, are judges less likely to err in their choice of rules when the parties present them with an array of purportedly analogous cases that might arise under a proposed rule?⁷

It is surely possible to find examples of this pattern in decided cases, but decided cases are unlikely to provide a systematic overview of the problem. Again, the most promising alternative is probably experimental. Judges might be given the facts of a case together with a selection of proposed decisional rules, the overall quality of which varies inversely with the attractiveness of their outcomes in the case at hand.

Empirical information about judicial responses to rules would be of great utility in studying the judicial process. Obtaining reliable information would, of course, require tremendous empirical ingenuity: designing effective problems is a challenge. Eliciting a serious but candid response from judges is an even greater challenge: judges must somehow be enticed to do what they ordinarily do, without too much reflection on the nature of the exercise. Fortunately, the objective of this short Essay is only to identify the types of information that would be most helpful to theorists interested in decisionmaking in a regime of legal rules.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Emily Sherwin is a professor at Cornell Law School.

Some of the discussions at the Symposium highlighted an area where academics’ perceptions of judging conflict with judges’ actual experiences. Judges and academics view the significance of judicial dissents quite differently. Whereas many of the judges believe that dissents primarily reflect the level of cohesiveness and collegiality of the court, academics typically place much more significance on the meaning of judicial dissents. For example, recent academic studies have asserted that judicial dissents often reveal the influence of judges’ retention concerns,¹ the level of judges’ independence,² or certain judges’ higher propensity for risk taking.³

In contrast, many judges at the Symposium considered academics’ emphasis on judicial dissents to be misguided. The judges maintained that dissents reveal less about judges’ retention concerns, impartiality, or risk preferences, and more about the culture of collegiality on the court. Many of the judges believe that dissents primarily reflect the level of cohesiveness among judges, and that various factors and institutions influence this cohesiveness. For example, they explained that the personal relationships, amount of professional and social interaction, and diversity among judges on a court might influence the level of dissent. Many of the judges hypothesized that courts that are more collegial, either because the judges are better friends or share more common values or backgrounds, should have lower dissent rates. Judges on these courts should be less likely to openly criticize the opinions of their colleagues by dissenting.

Although academics have long recognized that institutions such as opinion-assignment procedures and voting order might influence the propensity to dissent,⁴ empirical studies have failed to consider the impact of collegiality and personal relationships on dissent rates. Thus, in this short Essay, I empirically test whether some of the judges’ assertions are consistent with the data. I test whether various measures of diversity are associated with dissent rates in state supreme courts. I find that diversity in many areas—gender, race, age, religion, home state, and political affiliation—is associated with higher levels of dissent. In contrast, diversity in the jobs that judges had before taking the bench is associated with lower dissent rates.⁵

I also test whether the length of time judges have served on the court is associated with dissent rates. Presumably, judges that have served on a court together for many years would have stronger friendships than newer judges, and thus may be more collegial and less likely to dissent. However, my empirical analysis finds the opposite: the greater the number of judges with lengthy tenures on the court, the higher the dissent rate.

Empirical Analysis

To test the influence of diversity and tenure on judges’ propensity to dissent, I use data from the State Supreme Court Data Archive. This data includes an almost universal sample of state supreme court cases in all fifty states from 1995 to 1998. The data include more than twenty-eight thousand decisions involving more than 470 individual state supreme court justices.⁶ The data include variables that reflect case histories, case participants, legal issues, case outcomes, and individual justices’ behavior. I supplemented these data with institutional variables that describe aspects of each state’s judicial system, and with detailed information about each judge’s personal characteristics, background, and career.

Thus, my data consist of individual judge-level votes in each case before the state supreme courts. I use an ordinary probit model to test whether diversity and tenure on a court influence judges’ likelihood of dissenting. The dependent variable in my estimation is an indicator variable for whether an individual judge casts a dissenting vote in each case.

My estimation includes several measures of the diversity of judges’ personal characteristics and backgrounds on each court. I measure the diversity of each personal characteristic on each court with an index that is essentially one minus a Herfindahl index of each characteristic:⁷

Diversity of personal characteristic = 1 − _j (# of judges of each type j / total # of judges)².

For example, diversity along the racial dimension would be measured with:

Diversity of race = 1 − _j (# of judges of each race j / total # of judges)², where j = [White, African American, Asian, Hispanic, and other].

The diversity measure ranges from zero, when the court is composed of judges of only one “type” (that is, race), to one, when each type is represented equally on the court. Thus, increases in this measure indicate an increase in diversity on the court.⁸

I include variables that measure diversity along several different dimensions: gender, race (White, African American, Asian, Hispanic, and other), age (under 45, 46 to 55, 56 to 65, and over 65), religion (Protestant, Catholic, Jewish, Greek Orthodox, Mormon, and other), home state (from the state where the court is located or from another state), political party affiliation (Republican, Democrat, or Independent), and job held before taking the bench (prosecutor, attorney general, elected official, lower-court judge, or nonelected official).

I also include two variables that represent judges’ tenure on the court. I include the percentage of judges on each court that have served for one year or less; presumably, these judges have not served long enough to develop strong personal relationships with other judges. I also include the percentage of judges on each court that have served for six years or more; if these judges have developed stronger friendships, they may be more collegial and less likely to dissent.

In addition to the diversity and tenure variables, the estimations include a series of judge-level, case-level, and state-level variables that might be related to judges’ propensity to cast dissenting votes. The judge-level variables include an indicator for whether a particular judge is the chief justice on the court, and a variable indicating the number of years until the judge’s next retention.⁹ These variables control for voting changes throughout a judge’s career and term.

All estimations also include various case-level variables that may be related to dissenting votes. First, I include indicator variables for whether a case is a criminal case, a juvenile case, a civil case involving the state government, or a civil case involving private individuals. Thus, the base category is nonadversarial cases, such as cases involving certification and advisory opinions. Finally, I include indicator variables for whether at least one litigant is a business, a person, or a representative of the state government.  These indicator variables control for any relationship between dissent rates and the litigants or legal issues in a case.

Next, I include various state-level characteristics that have been found to be related to dissenting votes. First, I include an indicator variable for whether judges in the state face reelection by the voters. In a previous study, I found empirical results suggesting that judges’ reelection concerns are important influences on their propensity to cast dissenting votes.¹⁰

I also include a variable that indicates whether the state has a lower appellate court, and thus, whether the court has discretionary review to hear cases. Numerous studies report that the presence of an intermediate appellate court increases dissent rates, suggesting that discretionary dockets facilitate the expression of dissent.¹¹

The state-level variables also include indicator variables for whether a court utilizes a random opinion-assignment procedure instead of a discretionary procedure, and whether voting takes place in the order of seniority. Random or rotating opinion-assignment procedures prevent judges from being rewarded or sanctioned for their opposition votes, and thus reduce the incentives for consensus.¹² In contrast, when opinions are assigned by the chief justice, opportunities for rewards and sanctions emerge. Similarly, when voting takes place in order of seniority, the most senior judges may influence junior judges, reducing the likelihood of their disagreement.¹³

Moreover, all estimations include year indicators to capture trends in the likelihood of dissent. In the probit estimations, the t-statistics are computed from standard errors clustered by case.

Table 1 reports the primary probit results. In this table, the top number in each cell is the regression coefficient, which indicates the magnitude and direction of the relationship of each variable with judges’ votes. A negative coefficient indicates that a variable reduces the probability that a judge will cast a dissenting vote; a positive coefficient indicates that a variable increases the probability that a judge will dissent. Under each coefficient is the corresponding t-statistic. Coefficients with t-statistics equal to or greater than 1.96 are considered statistically significant at the 5 percent level, meaning that there is 95 percent certainty that the coefficient is different from zero. A t-statistic equal to or greater than 1.96 is typically required to draw conclusions in hypothesis testing.

The results indicate that diversity among the judges hearing a case is significantly related to the propensity to dissent. The positive and statistically significant coefficients on the diversity variables for gender, race, age, religion, home state, and political affiliation indicate that diversity along these dimensions is associated with higher levels of dissent. These results are consistent with the Symposium judges’ belief that dissent reflects lack of cohesiveness on a court; greater diversity probably implies that the judges have fewer common values and experiences, reducing the incentives for collegiality.

In contrast, diversity in the jobs that judges held before taking the bench is negatively associated with dissent. This suggests that more diversity in professional backgrounds is associated with a reduction in the propensity to dissent. Thus, different backgrounds, at least in terms of the judges’ professional lives, do not appear to reduce collegiality on a court.

Moreover, the results indicate that the more judges with very short tenure on the court (one year or less), the less likely judges are to dissent. Similarly, the more judges with lengthy tenures on the court (six years or more), the more likely judges are to dissent. If lengthy tenure is a good proxy for strong personal relationships among judges, then these results are inconsistent with the experiences of some of the judges participating in the Symposium. Instead of lengthy tenures reducing the propensity to dissent because judges are better friends, my results indicate that lengthy tenures increase the propensity to dissent. Nevertheless, the results are consistent with studies that assert that junior judges feel pressure to not dissent against more experienced senior judges.¹⁴ Thus, even if judges build stronger personal relationships during their time on the court, their inclinations to agree with friends may be outweighed by the confidence and experience that comes with longer tenure on the court.

Several other variables also have statistically significant relationships with the propensity to dissent. Judicial elections, discretionary dockets, random opinion assignment, and seniority voting are associated with increases in dissent rates. In contrast, an approaching retention and chief justice status appear to reduce the propensity to dissent.

Conclusion

In this short Essay, I tested whether the empirical evidence is consistent with the experiences of some of the judges participating in the Duke Law Journal’s Symposium on Evaluating Judging, Judges, and Judicial Institutions. Although my results confirmed that institutional and political factors are important influences on dissent rates, I also found that the levels of cohesiveness and collegiality among judges are important. These results indicate that academic studies of judging can greatly benefit if academics consider the real-world experiences of judges.

Table 1

Notes: The table reports coefficients from a probit model. For brevity, the indicator variables for years, case types, and litigant types are not reported here. T-statistics are reported in parentheses. An asterisk represents significance at the 5 percent level.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Joanna Shepherd is an Associate Professor at Emory Law School.

Yet, the Court has consistently dodged the question of whether one type of religious government speech is constitutional—namely, speech that is often called “ceremonial deism.” That term is commonly used to refer to brief or passing religious references, such as the national motto (“In God We Trust”), the words “under God” in the Pledge of Allegiance, the city names Corpus Christi and St. Louis, and the abbreviation “A.D.” (Latin for “In the year of the Lord”). In 2004, the Court dismissed a constitutional challenge to the recitation of the Pledge of Allegiance in public schools without reaching the merits. The Supreme Court has not decided any other direct challenges to the constitutionality of these brief religious references; instead, various Justices have voiced their views on the matter in dicta, usually suggesting that these references pass constitutional muster because they have lost their religious meaning over time. And while lower courts have faced more direct challenges to ceremonial deism, they have largely espoused the same “secularization” thesis with very little supporting analysis.

It is surprising that little consideration has been brought to bear on the validity of the secularization thesis. Indeed, courts have focused minimal attention on the problem of discerning the meaning and effect of these phrases. Linguistic theory, however, may provide some answers to the thorny constitutional questions that ceremonial deism presents, or at least suggest directions for more nuanced analysis.

 
I.
Speech Act Theory

Speech act theory is a branch of philosophy of language that considers how language actually works—and how and why it fails. Rather than considering language as abstract means of conveying truth, speech act theory looks at language as it is used in everyday life, perceiving language primarily as doing—as bringing about states of affairs, with greater or lesser degrees of success. It is easy to come up with legal examples of language bringing about concrete effects: imposing a prison sentence, enjoining a party from taking an action, and forming a legally binding contract are obvious instances of speech acts—that is, of actions that are performed by and through language.

Less obviously, even describing a state of affairs involves doing something with words, just as much as sentencing and enjoining and contracting do. A descriptive utterance accomplishes something specific and distinct through the use of words. And it may often also be an “act” in the sense that it does more than passively observe or describe: it may also help to construct the reality to which it merely refers or purports to refer. Descriptions and statements may tend to reinforce particular truths or realities by presenting them as fact rather than as one contested viewpoint among many.

Speech act theory refers to the act performed by and in speaking (describing, sentencing, enjoining, and so on) as illocutionary force. Every meaningful utterance possesses some illocutionary force.

 
A.     Conventionality and Iterability

To be effective as a speech act, any meaningful statement must be uttered under the appropriate conditions. For example, the speech act of bequeathing possessions to an heir cannot be performed successfully unless certain conventions are met. Those conventions include the numerous formalities pertaining to wills under state law, such as signature and witness requirements; the requirement that the bequeathing person has the legal authority to dispose of that property; and the requirement that the individual not be incompetent, under duress, performing in a play, or giving an example of performative utterances in a law review article when the words are uttered. The words themselves are also part of the conventionality of the speech act: although many different combinations of words may be used to bequeath one’s possessions, those words must still be recognizable to the relevant readers as words of bequest.

Moreover, if language is conventional, it must function according to a set of learnable, and thus reproducible, rules. The functionality of language depends, in other words, on its ability to be repeated—on the ability of certain speech acts to be replicated in a variety of contexts. But this ability to be repeated, or iterability, also means that any linguistic utterance is capable of being cut off from both its original context and its speaker’s intent to be reproduced in a context that may change or undermine its prior meaning or in ways that may not have been originally intended.

Many examples of ceremonial deism—city names, the national motto, the language of the Pledge, and even Christmas trees—function by means of this iterability; indeed, they must function in the absence of any particular speaker or any particular intended hearer. The national motto on coins, for example, is recognizable as such because of the repetition of its exact phrasing and its placement on the coins. But at the same time, its repeatability, and thus its recognizability, is exactly what opens it up to new, and possibly ironic, use in other contexts—such as the joke “In God we trust; all others pay cash.” The joke draws its humor from the way it trivializes the religious component of the motto, as well as the way in which it associates God and Mammon—an association that is latent but unexplored in the motto’s use on currency itself. In fact, the joke is comprehensible only in terms of its religious origins.

Yet the possibility of changed meaning need not be relevant only when a phrase or term is used facetiously. Placing religious-themed artwork in the context of a public museum, for example, will usually remove the religious significance from the government’s decision to embrace that religious speech. Even if the artwork itself has deep religious meaning, its placement in the National Gallery would not suggest the illocutionary act of government endorsement of religion, but rather of depiction of religious events, or simply of visually “quoting” the artist’s religiously motivated expression.

 
B.     Meaning’s Vulnerability—and Its Persistence

Despite this vulnerability to change, illocutionary force possesses a surprising persistence. Each time a term is used, it invokes its past usages and thus reconsolidates them, reminding the reader or listener of its historical meanings. The joke “In God we trust; all others pay cash” makes sense only because it reminds the listener of the religious origins of the phrase, though its bent is decidedly secular. But more serious uses of the national motto also draw and rely upon its original religious meaning. The phrase “In God We Trust” was initially imprinted on coins as a way of signifying the nation’s religious and patriotic commitment in the Civil War era; its adoption as the U.S. national motto during the Cold War was infused with a similar sentiment. Coexisting with those sentiments, moreover, was a spirit of exclusion—a desire to distinguish the United States from other so-called heathen or godless atheistic nations, which consequently labeled nonbelievers as unpatriotic. When the motto is used in a solemnizing way or as an expression of national unity, it is capable of performing those solemnizing and unifying functions precisely because of its invocation and repetition of the set of religious beliefs and practices that originally motivated its creation and its adoption as the motto. Its usage relies on the unique power conferred by the religious force of the motto’s prior usages to accomplish the act of solemnizing or unifying. Nonetheless, the motto’s defenders, like the courts that have considered its constitutionality, often deny both the phrase’s original religiosity and the spirit of exclusion that motivated the motto’s adoption, thereby allowing the motto to give the illusion of voicing a universal and purely patriotic belief that can claim the support of virtually all citizens.

Meaning is thus at once both vulnerable and surprisingly persistent. Moreover, speech acts often appear to deny or conceal their original context despite the fact that the original context continues to give the speech act its force. Further, the original context that must be concealed is often one of political or social subordination or strife. Ignoring this strife allows the speech act to appear to possess a singular, unifying, and uncontroversial meaning. But in reality, the past meaning persists, if only as the original context that gives the speech act its force and authority. Past social context therefore plays a role in interpreting these speech acts.

 
II.
The Implications of Speech Act Theory for the Constitutionality of Ceremonial Deism

 
A.     A Rebuttable Presumption

It would be foolish to contend that the complex body of theory I have just described can yield easy answers to constitutional challenges. Nonetheless, I believe some directions for analysis can be identified. Specifically, courts should adopt a rebuttable presumption of continuing religious meaning when confronted with an Establishment Clause challenge to ceremonial deism. Of course, speech act theory’s emphasis on illocutionary force suggests that the presence of facially religious language should not automatically mean that the language’s effect is religious. At the same time, speech act theory teaches that meaning, although vulnerable to change, has a tenaciousness that is often underappreciated. A rebuttable presumption of religious meaning is therefore appropriate as an acknowledgement of this tenaciousness.

Moreover, a rebuttable presumption is appropriate because speech act theory teaches that the speech acts of “describing” and “acknowledging” may be far less neutral and passive than they appear. The act of describing a reality may instead have a tendency to create and enforce that reality; moreover, this danger seems particularly acute when the describing is done in the name of the state. This effect may be intensified rather than lessened by the repetition of certain phrases throughout history, as that repetition, too, may be an attempt to shore up the reality that the phrase appears merely to describe.

Finally, the capacity of meaning to persist over time also suggests the importance of history and social context in determining whether a speech act retains its religious force. As described above, speech acts have a tendency to conceal the sort of history of subordination or divisiveness that lies behind them. Accordingly, courts should be particularly sensitive to clues regarding an utterance’s history.

The rebuttable presumption I envision would function primarily as a burden-shifting technique. A plaintiff challenging an instance of ceremonial deism would have to show only facially religious language to get the benefit of a rebuttable presumption of continuing religious meaning. At that point, the burden would shift to the government to prove that the religious meaning has been lost. The government could do so in one of two ways. It could either demonstrate the absence of religious illocutionary force, as in the case of place names or other genuinely referential or citational phrases, or it could show that the sociohistorical context contains no divisive or religiously oppressive past that continues to inform present usage. If the government’s showing is unconvincing or if the plaintiff is able to undermine the government’s claims, the utterance should be considered a religious one.

 
B.     Examples

1.   Place Names

Challenges to the constitutionality of city names like Corpus Christi and St. Louis are the cases in which the presumption would most likely be rebutted. Although these names have facially religious—even sectarian—content, they do not generally carry an illocutionary force that can be described as religious when they are used as proper names to refer to long-established cities. Indeed, the city names of San Francisco and Los Angeles may carry with them many connotations, but religiosity, sainthood, and angels are not among the most immediate that leap to mind. Rather, those place names legitimately may be understood as referring to—almost “quoting”—the city’s origins, which may have been founded in tribute to a religious figure. Indeed, it seems that place names simply function differently from mottos or pledges: they are neither assertions of fact nor declarations of beliefs but simple referents whose arbitrariness is more or less assumed by those who use them. Religious city names thus may be one instance in which a term has legitimately lost its religious meaning. Indeed, in most cases it will be easy to show that the name, like most names, does no more than refer to the city’s historical origins or the religious figure after whom the city was named.

2.   The National Motto

In the case of the national motto, the presumption of religious meaning could not be rebutted. The government could show neither that it lacks true illocutionary force—when posted in schools or stamped on coins, it is not a mere placeholder or referent—nor that the motto’s sociohistorical context is free of divisiveness or religious subordination.

Courts should not ignore the fact that the motto is associated with periods in American history of intermixed religious and patriotic sentiment—namely, the Civil War and the Cold War. These periods were moments not just of generic religious sentiment but of attempting both to assert and consolidate the supremacy of God in the nation. And inevitably, this assertion and consolidation was accompanied by an intent to exclude and label as unpatriotic anyone who—like the godless communists—rejected the view embodied in the phrase.

It is precisely this intermingling of piety and patriotism—the national unification under the umbrella of religion that is both described and enforced by those practices—that is troubling. Courts’ description of the national motto as merely a historical acknowledgement obscures the religious and religiously divisive history of these practices by making them synonymous with patriotism. A presumption that the national motto has enduring religious meaning should not, therefore, be rebuttable.

Acknowledgments:

Copyright © 2010 Duke Law Review.

B. Jessie Hill is an Associate Professor at Case Western Reserve University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 DUKE L.J. 705 (2010).

Protecting Them from Themselves reveals and analyzes the mutual benefits argument to make three points. First, judges, legislators, and commentators defending contemporary laws and policies frequently claim that restricting rights and opportunities protects women and people of color. The claims appear across a range of contexts, but their common structure has remained hidden from view and critical scrutiny. Second, modern mutual benefits discourse has deep historical roots in widely repudiated forms of discrimination, including slavery, racial segregation, and women’s legalized inequality. Third, the historical deployment of mutual benefits arguments to defend pernicious discrimination creates reason for caution in considering contemporary mutual benefits claims that are now accepted quickly with little evidence, investigation, or debate. Mutual benefits discourse historically operated to rationalize and reinforce discriminatory practices that the nation has since disavowed. Modern mutual benefits arguments must be evaluated carefully or they risk shielding subordination once again.

 
Modern Mutual Benefits Arguments for Limiting Women’s Rights

Protecting Them from Themselves begins by examining contemporary mutual benefits discourse. I first explore how arguments contending that restrictions on women’s legal rights promote women’s welfare have flourished in the modern era, building on the assumption that women’s true interests and ultimate obligations center on marriage and family life. At least twenty-four states, for instance, retain some form of a marital rape exemption. These states criminalize fewer offenses if committed within marriage, punish more leniently the marital rape they do recognize, and/or impose additional procedural barriers to marital rape prosecutions. Legislators, courts, and commentators have explained since the last quarter of the twentieth century that granting wives an unhindered right to pursue marital rape charges would allow women to shatter their marital harmony, destroy their marital privacy, and make marital reconciliation much more difficult. This argument maintains that both husbands and wives are better off if the law limits the criminality of marital rape, although the benefits to men and women differ. Marital rape exemptions protect husbands from prosecution and wives from damage to their marital relationship assertedly more harmful to them than the marital rape itself.

Similar arguments that limiting women’s rights serves women’s best interests have increasingly come to shape antiabortion legislation and the Supreme Court’s abortion jurisprudence. Roe v. Wade (1973)¹ stressed the need to mediate between competing rights and interests: a woman’s right to have an abortion versus a state’s interest in protecting women’s health and the potential life of the fetus. Since Roe, however, the antiabortion movement has recognized in increasingly explicit terms that many Americans are unwilling to criminalize abortion if doing so will harm women. The movement and its government allies have turned more and more to the language of aligned interests rather than competing rights, insisting that both women seeking abortions and people opposed to abortion are better off if the law restricts or prohibits abortion. This argument contends that antiabortion laws protect women from the psychological harm that abortion would inflict upon them and the regret they would and should experience after abortion. The argument visibly influenced the Court’s plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992),² which upheld mandatory waiting periods before abortion and “informed consent” laws designed to persuade women not to have abortions. The Court explicitly endorsed the assumption of regret in Gonzales v. Carhart (2007)³ with little discussion or explanation. Carhart upheld the federal prohibition of an abortion procedure—even where that procedure is the safest method of abortion—on the premise that some women will, and perhaps all women should, come to regret having abortions.

 
Mutual Benefits Arguments Against Affirmative Action

Protecting Them from Themselves next considers modern mutual benefits discourse in the racial context. Arguments that whites and people of color have aligned interests in defeating civil rights initiatives have become increasingly prominent in recent years. For example, the Supreme Court’s initial decisions restricting race-based government affirmative action programs and early academic criticism emphasized the conflicting interests of whites and people of color, and the burdens that affirmative action imposed on whites. But the Court and academic critics abruptly switched focus within just a few years and a few opinions. More recent opposition to affirmative action has stressed that affirmative action policies must be severely restricted in scope and duration because otherwise these policies will harm people of color. This account contends that legal decisionmakers need not choose between competing sides because the people participating in affirmative action programs and the people opposed to those programs have shared interests. People of every race and with every view on affirmative action all purportedly benefit in their own way if affirmative action is first limited and then eliminated.

 
A Legal History of Mutual Benefits Arguments for Sexual and Racial Inequality

Protecting Them from Themselves proceeds to uncover the genealogy of mutual benefits claims, analyzing historical manifestations of mutual benefits discourse. The mutual benefits argument is not a recent innovation devised to respond to the demands of the contemporary civil rights era. It is a long-established claim that defenders of unequal status relations have repeatedly deployed, relying on the argument’s familiarity to bolster its plausibility. The contention that more rights would harm the rights holders appeared prominently in defenses of slavery, racial segregation, married women’s subordination to their husbands at common law, and legislation restricting women’s rights to negotiate about market work. Mutual benefits arguments for sex and race inequality especially proliferated in eras, like our own, when reform movements were vigorously working to improve the status of women and people of color. The reform efforts presumably undermined claims that the law should favor men over women, or whites over people of color. Historical mutual benefits arguments were nominally committed to helping women and people of color. But they consistently and explicitly assumed that women and people of color were unusually poor decisionmakers unable to assess their own interests, that women’s true concerns were confined to domesticity, and that people of color were better off the less they challenged and disturbed white people and white-dominated institutions. Connections between the defenses of slavery, segregation, and women’s legal inequality have rarely been noticed. Highlighting them uncovers important precursors to modern civil rights discourse.

 
Evaluating Mutual Benefits Arguments

The extensive use of mutual benefits claims to support now-rejected forms of discrimination should affect how we assess modern mutual benefits arguments. The fact that historical versions of the mutual benefits claim are no longer convincing does not necessarily mean that current or future expressions of the claim cannot be appropriate. Mutual benefits arguments may sometimes be reasonable and cogent. But the role that mutual benefits arguments played in defending pernicious forms of inequality creates grounds for caution in considering contemporary assertions that women and people of color are better off with limited rights and opportunities. Courts, legislators, and commentators may be predisposed to endorse these assertions quickly with little support, deliberation, or debate because the assertions resonate with a long history of mutual benefits arguments and invoke shared cultural memories of prior mutual benefits claims. The antecedent life of mutual benefits discourse can give modern mutual benefits arguments an inordinate power to persuade that makes explanation and elaboration seem unnecessary. Yet mutual benefits arguments were historically employed to support practices that are now repudiated, and they drew on ways of thinking about women and people of color that are now suspect. Whatever one’s views on the merits of legal paternalism as a general matter, there is reason to be cautious about contentions that all parties benefit when the law denies rights and opportunities to women and people of color.

Protecting Them from Themselves concludes by seeking to stimulate greater conversation about mutual benefits claims that are often accepted too easily. I use the reasons why historical mutual benefits arguments are unconvincing to formulate four practical criteria that judges, legislators, and commentators should apply in evaluating contemporary mutual benefits discourse. These criteria ask whether advocates asserting that rights and opportunities will injure women or people of color are consistent in their arguments, whether they present evidence of harm, whether they rely on narrow assumptions about how women or people of color should behave, and whether they engage with counterarguments and opposing viewpoints. I employ these criteria to assess several modern mutual benefits arguments.

Contemporary claims that women or people of color benefit from limited rights and opportunities have many of the same weaknesses as their historical precursors. First, judges, legislators, and commentators have been very selective in contending that people seeking rights and opportunities can be safely ignored because they fundamentally misunderstand their own interests. The law does not usually assume that people are radically mistaken about how to improve their lives and need to be protected from themselves. But claims that women or people of color will be worse off with more rights and choices are common. Second, the evidence that rights and opportunities harm women or people of color is sometimes questionably reliable, and sometimes simply nonexistent. Third, mutual benefits claims frequently depend on and enforce rigid, historically embedded assumptions about how women and people of color should think, act, and live. Modern mutual benefits arguments, like their historical predecessors, typically take for granted that women should orient their lives toward domesticity instead of male-dominated spheres such as the market. Similarly, contemporary mutual benefits arguments track historical patterns in presuming that people of color are better off the more they accommodate and the less they demand from white society. Finally, modern arguments about mutual benefits to women and men, or to people of color and whites, often avoid acknowledging any possible costs associated with restricting the rights and opportunities open to women and people of color.

History richly documents how mutual benefits claims have long served to rationalize and perpetuate legal hierarchies based on sex and race. This history also suggests criteria that legal authorities and advocates should employ in evaluating modern manifestations of mutual benefits discourse that are now accepted too readily. Applying these criteria can help assess arguments that risk reinforcing some of the nation’s most entrenched and intransigent forms of status inequality.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Jill Elaine Hasday is the Julius E. Davis Professor of Law at University of Minnesota Law School.

This Legal Workshop Editorial is based on the following Article: Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464 (2009).

Legal theory and, in particular, neoclassical law and economics will not be the same after the worst market collapse since the Great Depression, and the political engagement that resulted in the election of the nation’s first African-American President.  A quiet revolution is underway in the legal academy.  Indeed, one way of looking at a vast amount of seemingly unrelated scholarship over the past twenty years is to see that, in one way or another, it has sought to challenge the unrealistic assumptions of the neoclassical law and economics model.  We survey this scholarship under the mantle of a “new legal realism” and argue that much of it is a direct or indirect response to the “new formalism” of neoclassical law and economics.  New legal realists are not anti-economics (many of them are economists themselves), but they are challenging the new formalism’s assumptions about the individual, the state, and judging, as well as its approach to legal scholarship.

On the surface, neoclassical theory may appear to be the opposite of the old formalism, which advocated a “science” of doctrine based on common-law principles.  Neoclassical efficiency theory has touted instrumentalism rather than doctrinalism.  Oddly, however, the new formalism turns out, upon examination, to parallel the old in its form of deductive reasoning from axioms and the substantive policy prescriptions derived from it.  Neoclassical theory may talk about efficiency, but it ends up celebrating the common law.  It may claim to be a new science, but, like the old nineteenth century science of laissez-faire, it denigrates politics as the realm of special interests.

Perhaps it is not surprising then that, over the past eight years, new movements have arisen that characterize themselves as representative of a new legal realism.  Earlier articles have elaborated distinct versions of new legal realism in isolation.  We provide a taxonomy and overview of this literature in order to evaluate its commonalities and differences, facilitate mutual engagement among scholars, and build our own version of a “dynamic new legal realism.”

 
I.
Mapping New Legal Realism: Three Approaches

We categorize the new legal realism into three broad types.  First, there are behavioral approaches: studies that borrow from behavioral economics and political science to reach conclusions about law-as-behavior.  Second, there are contextual approaches: empirical work that includes studies using mixed methods involving bottom-up forms of empirical inquiry.  Third, there are institutional approaches: studies focusing on the power of institutions and institutional choices to determine our policies and shape our very ideas of self, society, and the state.

 
A.     The Behaviorists

There are two forms of what we call the “behavioral wing” of new legal realism.  One takes its inspiration from behavioral economics and the other, the attitudinal model in political science.  In 2001, Daniel Farber reviewed Cass Sunstein’s work on behavioral economics and proclaimed that studies challenging the rational-actor model were the new legal realism.² Farber argued that behavioral economists had successfully attacked the rational-choice models underlying neoclassical law-and-economics and public-choice theory by presenting a more realistic depiction of human behavior.

In a 1997 article, Frank Cross urged that a “new legal realism” take account of the “attitudinal model” of political scientists, which, in its more extreme variant, holds that legal reasons are irrelevant and that judicial decisions can be predicted based on ideological variables and political affiliations.³ This work, which forms part of the new empirical-legal-studies movement, has spurred a flurry of studies that find ideological bias across subject areas of judicial decision making.⁴ By 2008, Thomas Miles and Cass Sunstein dubbed such studies the cutting edge of new legal realism.⁵

 
B.     The Contextualists

Stewart Macaulay has deployed the term “law in action” to capture Wisconsin’s variety of new legal realism.⁶ Statistical studies are not enough for this version of new legal realism and are often complemented or replaced by sociological and anthropological approaches to law.  Macaulay’s canonical study of how businesspersons make bargains (largely in complete disregard of the law) is the starting but not the ending point of this model.  We call this work, for purposes of distinguishing it from other forms of empirical research, “action studies,” reflecting the subject of study—the law in action.

There are variations within the contextualist approach that reflect the variations in the law-and-society movement from which this version of new legal realism builds.⁷ Each of these variants uses different empirical tools to investigate behavior in social context.  Economists working in a contextualist vein, such as Ian Ayres, John Donohue, and Steven Levitt, deploy quantitative large-N studies and multivariate regressions.  Sociologists, such as Robert Nelson and Laura Beth Nielsen at the American Bar Foundation, use mixed qualitative and quantitative methods.  Legal historians, like Lawrence Friedman, Robert Gordon, and William Novak use qualitative and quantitative methods, as well as critical reflection.

 
C.     The Institutionalists

Building from different traditions in economics and sociology, a number of scholars have claimed that new legal realism should focus on institutional forces.  Neil Komesar has taken an important institutional turn for new legal realists, showing how social-goal choice alone is insufficient to inform law and policy decisions because the pursuit of all goals will be shaped and determined by institutional processes.⁸ Working in this vein, Ed Rubin advocates a microanalysis of institutions,⁹ an approach that is not limited to public institutions, but includes studies of private organizations, building on neo-institutional insights from sociology.¹⁰

“New governance” theory of law, coming out of Columbia Law School in particular, focuses on efforts to move beyond a court-centric and rights-focused basis of law and toward new forms of problem solving involving pragmatic institutional experimentation.¹¹ New-governance theory emphasizes the importance of innovation, learning, and flexible adaptation in light of experience.  Finally, other new legal realists have attacked the root image of the autonomous individual, not on the grounds of potential irrationality, but on the grounds of interdependence.  This approach has its roots in critical theory and feminism.  For scholars such as Martha Fineman, institutions must respond to universal human vulnerability, and thus institutional responsibility becomes central to policy analysis.¹²

 
II.
Responses to the New Formalism in Neoclassical Law and Economics

One can understand neoclassical law and economics as a new version of formalism if by formalism we mean a theory of law based on rationally organized first principles deductively applied.  It sets forth coherent principles (efficiency and wealth maximization) that it attempts to apply descriptively and prescriptively to all areas of law.  Judge Posner recognized this formalist argumentative structure when he wrote that “[e]conomic analysis of law is a formalist edifice erected on a realist [i.e., instrumentalist] base.”¹³

Some have claimed that law and economics is a “realist” enterprise since it rejects formal, self-contained doctrinalism.  New realists, however, argue that neoclassical theory turns realism on its head.  They contend that neoclassical theory seeks hypothetical end-states-of-affairs (wealth or welfare maximization) deduced from simplified assumptions rather than real-life facts and institutional processes.  New realists acknowledge that the new formalism differs from the old because of its instrumentalist base, but they contend that the new formalism arrives at conclusions remarkably like the old doctrinal formalism of the late nineteenth century—an idealization of common law and market processes, and a distrust of political institutions and state regulation.

In our article, we go into much greater detail regarding the new legal realist challenge to law and economics theories of judging, the individual, politics, and the state, as well as its general approach to scholarship.  For our purposes here, we note that each of the varieties of new legal realism directly or indirectly challenges aspects of neoclassical law and economics’ reasoning.  Behavioral economists challenge neoclassical law and economics’ rational-actor model.  Attitudinalists challenge the neoclassical law-and-economics notion of the efficiency of judging in the name of wealth-maximization.  Contextualists and institutionalists challenge an economics that does not compare institutional alternatives and their relative imperfections, and that fails to recognize that individuals’ situations vary so that some are in privileged or dominant positions in relation to others.  Like the old legal realists, new legal realists take aim at the “status quo bias” of formalist reasoning, a bias once entrenched in Herbert Spencer’s “laissez-faire” philosophy and its libertarian ideal and, subsequently, Chicago-school neoclassical law and economics’ recast exposition of that same ideal.

 
III.
Conclusion: A Dynamic New Legal Realism for a New World Order

As an alternative to existing forms of new realism, we begin the effort to outline a “dynamic new realism,” building from what we consider to be the best of the new realism.  Our form of dynamic realism focuses on “mediating” theory, which aims self-consciously to theorize the bridge between the world and legal institutions.  Unlike the old realism, such a dynamic new realism stresses that law is important within its sphere, in part because legal institutions exert power—the power both of violence and of reason.  Theories that simply ignore law leave the field open to those who would manipulate the law to achieve not only bad ends, but also literally terrifying ones (even torture).  In this sense, realisms that tend to explain law in terms of other disciplines are profoundly “unrealistic” to the extent that they leave law no place to exert its influence for ill or good.  Law cannot be reduced simply to economics, political science, sociology, or anthropology.  Neither the attitudinal model nor behavioral economics, neither large-N quantitative studies nor fieldwork, is enough.  Why?  Because legal institutions have power, and that power may transform knowledge and preferences in ways that may make them completely unrecognizable to its authors.

We suggest five conceptual moves that should be associated with a new realism and that offer scholars tools to bring particular analytics to bear on existing problems.  The first notion is recursivity.  Borrowing from Terence Halliday, we stress that legal-reform efforts are dynamic and involve the recursive interaction between law and society.¹⁴ The second notion is the simultaneity of law and politics.  One of the great (and unfortunate) habits of an age in which everyone is a “realist” has been to tend to reduce law to politics.  Yet law and politics involve different institutional processes that interact simultaneously in real life.  Dynamic new realism attempts to capture this dualism by telling “double stories” of law and politics or “triple stories” of law, markets, and politics, rather than stories that reduce one to the others.  The third notion is emergent analytics, which is the idea that a dynamic realism takes its concepts from evidence-based empirical engagement with the world and not from disembodied theory.

Fourth, functionalism is no longer enough.  We cannot simply posit values and expect them to be realized, just as legal scholarship cannot be reduced to other disciplines’ methods.  Unlike the old realists’ functionalism, dynamic new realism looks for concepts of “mediation” and “participation”—concepts that describe the ways in which law’s purposes are thwarted, amplified, condensed, or switched once translated into the world.  We should examine functions and ends in terms of how participatory structures of human interaction divert them.  Thus, the concepts of participation and accountability become central.  Fifth, and perhaps most importantly, borrowing from Dean Hanoch Dagan, we believe that law’s constitutive tensions between “power and reason, science and craft, tradition and progress” must be embraced not as a cause of a fundamental essentialist contradiction or defeat, but as productive and positive contradictions, reflecting a progressive struggle and dialogue about our deepest value commitments (as against value relativism, skepticism, and nihilism).¹⁵

New legal movements do not arise in the abstract.  They resonate if they fit a particular political moment in light of their confrontation with a dominant theory and practice.  Old legal realists played this role in the 1930s.  So, in our view, will the new-legal-realist movement today.  Dynamic new realism seeks an understanding of how law, like other institutions, reciprocally responds to and shapes individual preferences and political behavior.  If this dynamic new realism is taken seriously, we anticipate that new forms of analysis will emerge that will reconstruct law’s concepts to focus less on the individual preferences and more on how institutions shape and redirect those preferences, less on functional ideas and more on participatory institutional forms, less on idealized end-states of affairs or values and more on recursive interactions between ends and institutions, less on an imagined state in which we live, alone, on islands counting our preferences, and more on our shared human vulnerability.

Acknowledgments:

Copyright © 2010 Cornell Law Review.

Victoria Nourse is the Burrus-Bascom Professor of Law at UW Madison Law School and is currently a Visiting Professor of Law at Georgetown University Law Center.
Gregory Shaffer is the Melvin C. Steen Professor of Law at the University of Minnesota Law School.

This Legal Workshop Editorial is based on the following Article: Victoria Nourse & Gregory Shaffer, Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?, 95 CORNELL L. REV. 61 (2010).

This assertion trades implicitly on the notion that originalism represents a single, coherent constitutional theory, against which are arrayed the disparate nonoriginalist alternatives. Originalist rhetoric paints a powerful picture of originalism as a consistent, coherent theory that has stood the test of time while countless other convoluted theories have come and gone, all so plainly flawed that they are unable to attract adherents. To hear many originalists tell it, the fact that, after decades of desperately trying, all of the smart and talented nonoriginalists have failed to come up with “the” alternative to originalism suggests that no such theory is possible. Originalism, they insist, is the only coherent method of constitutional interpretation.

It is not only the rhetorical attraction of originalism, but also its normative force, that to a substantial degree turns on there being one, consistent originalist approach. To its proponents, originalism is not simply the only coherent approach, but also the only legitimate approach. Originalists often assert that the propriety of originalism follows naturally from the very fact that the Constitution is a form of law; originalism, they say, is “almost self-evidently correct” and “so obvious that it should hardly need a name, let alone a defense.” Responding directly to the long-standing problem of the countermajoritarian difficulty—that is, the concern that judicial review allows unelected, unaccountable judges to thwart the will of democratically elected legislatures—originalists further contend that the determinacy provided by reliance on constitutional text, or at least on some objective guidepost for the fixed meaning of the constitutional text, is essential to constraining judges’ ability to impose their own views under the guise of constitutional interpretation.

As a result, originalists insist, originalism is not merely a legitimate method of constitutional interpretation, but rather is the only legitimate interpretive approach, and the only alternative to judicial activism. Prominent originalists have, for some time now, smugly declared that “there is a single, ‘true’ method of constitutional interpretation,” and that “[o]ther approaches to interpretation are simply wrong.”

Critics of originalism have sought to undermine these assertions by questioning the legitimacy of originalism or by seeking to articulate alternative interpretive theories that can lay claim to coherence and legitimacy. But they have for the most part accepted uncritically the characterization of originalism as a coherent, monolithic theory that stands in marked contrast to the mishmash of divergent theories on the nonoriginalist side of the divide.

But this characterization is unfounded. In fact, there is profound internal disagreement among originalists. Originalism is not a single, coherent, unified theory of constitutional interpretation, but rather a smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label. The image of a monolithic theory standing tall and firm, deflecting countless hapless attempts to knock it down, is wrong. The more accurate picture is one of a collection of rapidly evolving theories, constantly reshaping themselves in profound ways in response to devastating critiques, and not infrequently splintering further into multiple, mutually exclusive iterations.

In a relatively short period of time, originalism has evolved dramatically—indeed, so dramatically that the brand of originalism advanced by some of its most prominent defenders today would be virtually unrecognizable to those in originalism’s vanguard in the 1970s and 1980s. More important, contrary to the suggestion of its proponents—for whom there is only originalism and everything else—there are today countless variations of originalism, and the differences among them are sometimes so stark that it is difficult to treat them as one coherent interpretive methodology. The original “jurisprudence of original intention” slowly gave way to one of original meaning, determined by reference to the understanding—held by either the drafters, those who voted in state ratification conventions, or the general public, depending upon whom you asked—of the relevant provision at the time of its adoption. And from there, originalist theory gradually shifted again, to a jurisprudence of objective textual meaning. Today, pressing that theory to its logical extreme, several of the most prominent academic proponents of originalism dismiss not only the original intention of the Framers, but also the actual original understanding of the Framing generation. Instead, they seek to determine how the words of the Constitution “would have been understood by a hypothetical, objective, reasonably well-informed reader of those words and phrases, in context, at the time they were adopted, and within the political and linguistic community in which they were adopted.” In the meantime, other prominent originalists who also claim to rely on original textual meaning have recast the theory in very different terms, as one that boldly empowers the judiciary to protect libertarian or even progressive visions of constitutional liberty. In addition, some originalists insist that stare decisis is fully compatible with originalism; other originalists argue not only that it is not, but also that those who believe that stare decisis is compatible are not really originalists at all. These various current forms of originalism have almost nothing in common with each other, or with the original originalism, except their self-conscious adoption of the same label. Infighting among originalists has reached a fevered pitch, and it is not limited to disagreements about how the theory is properly applied to particular legal questions; rather, it concerns the very nature of the theory itself.

As it turns out, originalists, who have long criticized the notion of a living constitution, have themselves followed a living, evolving approach to constitutional interpretation. Ironically, originalists’ understanding of the relationship among originalism’s current meaning, its original meaning, and its underlying principles is similar to living constitutionalists’ understanding of the relationship among the Constitution’s current meaning, its original meaning, and its underlying principles.

It is not our objective here to criticize originalists for continually refining their approach. Indeed, any rigorous theory must be capable of adaptation in the quest for perfection. But because the rhetorical and normative defenses of originalism—in whatever variation—turn so substantially on the claims that originalism is the only theoretically coherent and legitimate approach to constitutional interpretation, it is notable that it has become virtually impossible today to define what exactly originalism entails. Justice Scalia is perhaps correct when he argues that “it is not very helpful to tell a judge to be a ‘nonoriginalist.’” But the proliferation of competing models of originalism suggests that it is also increasingly unhelpful to tell a judge to be an originalist. The very notion of originalism itself has become indeterminate.

This state of affairs has consequences for originalism’s normative defense. Originalists regularly contend: (1) that their methodology is the only theoretically coherent approach to constitutional interpretation; (2) that, because their approach accords to the Constitution a fixed and determinate meaning based on the document’s text, it is the only legitimate approach to constitutional interpretation; and (3) that their approach is uniquely promising for constraining the ability of judges to impose their own views under the guise of constitutional interpretation. But the diversity in and evolution of originalist thought undermine these three claims. If even originalists cannot agree about what originalism is and what it entails, then how can originalism be uniquely coherent and self-evidently correct? And because different versions of originalism focus on different historical criteria—and, as a result, frequently produce different constitutional meanings—how can originalists maintain that originalism is uniquely determinate, and thus uniquely consistent with law and democracy? Finally, when one recognizes that the diversity of originalist theories allows originalist judges to pick and choose among the various strands of originalism from case to case to reach results that accord with their personal policy preferences, one is left to question the assertion that originalism is uniquely resistant to judicial activism.

In fact, originalists can and often do move from one version of originalism to another as they decide different issues, thus allowing them to reach results that they personally prefer, all the while claiming (and likely mistakenly believing) that they are being guided by nothing more than the external constraint of history. Justice Scalia, for example, has strongly defended the primacy of the constitutional text in interpretation, but he has nevertheless endorsed the Court’s state sovereign immunity decisions on the ground that an unwritten “assumption” of immunity was “implicit in the Eleventh Amendment.” And although in his academic writing he has claimed to reject the original-expected-application approach to originalism—according to which the Constitution must be interpreted to reflect the actual expectations of the Framing generation as to how it would apply to particular practices—Justice Scalia has in practice embraced it. For example, he has argued that capital punishment cannot violate the Eighth Amendment’s prohibition on cruel and unusual punishment because its wide use at the time of the Framing indicates that the Framers did not expect or understand the Eighth Amendment to prohibit it, and he has used the same approach to conclude that certain government-sanctioned displays of religion do not violate the Establishment Clause.

We imagine that many committed originalists would respond by asserting, as has Justice Scalia, that originalism’s normative claims still carry force because, although there are some differences among originalists about their methodology, originalism “by and large represents a coherent approach, or at least an agreed-upon point of departure.” But this grossly understates the level of disagreement among originalists. Originalism does not “by and large” represent a coherent approach. And because the shared principles that can be said to animate all of its various iterations are remarkably broad, it is an “agreed-upon point of departure” only in the way that Chicago’s O’Hare Airport is a point of departure: because there are so many flights on so many airlines to so many different places, you can use it to get virtually anywhere you want to go.

Originalists thus find themselves in something of a bind. They can assert that more than one, or perhaps even all, originalist theories are legitimate. But that assertion undercuts the core normative claims of many originalists that originalism is uniquely consistent with law and democracy and is uniquely capable of constraining judges. One cannot take the position that multiple iterations of originalism are legitimate while simultaneously touting originalism’s unique fidelity to law, democracy, and judicial constraint.

Alternatively, originalists can assert that only one particular brand of originalism—such as original-intent originalism or original, objective-public-meaning textualism or text and principles originalism—is legitimate. But that assertion undercuts both the facile “it-takes-a-theory-to-beat-a-theory” argument—by making clear that originalists cannot agree amongst themselves on constitutional interpretation, either—and the notion that originalism is obviously and self-evidently correct. Finally, one might contend that all (or at least most) iterations of originalism are legitimate, but that true legitimacy requires a judge to choose one version and follow it faithfully. But picking and sticking to one particular originalist methodology appears to be much harder in practice than it is in theory; self-described originalist judges have not done particularly well on this score.

Perhaps our account will aid originalists by informing or reminding them that originalism is a broad tent and that, to gain the professed benefits of an originalist approach, they need to be substantially more disciplined and consistent in distinguishing among originalist theories. But one wonders whether the temptation to drift subconsciously among originalisms to reach desired results will in fact prove to be insurmountable. Perhaps the true lure of originalism lies in its ability to allow a judge to claim the interpretive high ground by purporting to be bound by objective historical meaning, while at the same time giving the judge the wiggle room to reach, whether consciously or not, the results that she desires and demands. If that is so, then much of the originalists’ case for their theory collapses.

Originalism, it turns out, is a loose collection of a staggering array of often inconsistent approaches to constitutional interpretation. And the approaches themselves continue to change and evolve, sometimes too fast for anyone to keep up. Originalists might despise the notion of a living constitution, but they have gone a long way toward creating a living constitutionalism of their own—the very existence of which undermines much of their own rhetorical and normative claims to superiority.

Acknowledgments:

Copyright © Duke Law Journal.

Thomas B. Colby is Associate Professor of Law at George Washington University Law School.
Peter J. Smith is Professor of Law at George Washington University Law School.

This Legal Workshop Editorial is based on the following Article: Thomas Colby & Peter Smith, Living Originalism, 59 DUKE L.J. 239 (2008).

This Editorial has two modest goals.  First, it defines originalism, for we cannot intelligently assess the thesis without a firm grasp of the central term.  Second, it introduces core arguments for originalism and briefly sketches my rejoinders.

 
I.
What Originalism Is

Originalism is today’s dominant theory or account of how the federal judiciary should interpret the United States Constitution.  That does not mean it is widely accepted.  To the contrary, I believe it is more often rejected than embraced.  But it serves as a focal point for contemporary debates over constitutional interpretation to a degree that competing theories cannot boast.  And yet, just what originalism maintains is surprisingly unclear.  While one commentator has bemoaned that “[t]he originalist debate has progressed without a clear statement of the doctrine itself,”¹ another has complained that “[i]f ever a term muddied as much as it clarified, ‘originalism’ is it.”² This lack of clarity is unfortunate, for it invites the possibility that self-professed originalists champion a version of originalism that their critics do not reject, while the critics challenge a version that proponents do not maintain.

Contemporary originalists disagree over many things:  over which feature of the Constitution’s original character demands fidelity (Framers’ intent, ratifiers’ understanding, public meaning, or something else); over why such fidelity is required; over whether this interpretive obligation binds only judges, or whether it binds citizens, legislators, and executive officials too; etc.  But along one dimension—what I call the dimension of strength—originalists are mostly united:  They all believe that those who should follow some aspect of a provision’s original character (judges, at the least) must give that original aspect priority over all other considerations (with a possible exception for judicial precedent that departs from the original meaning).  That is, again putting aside the problem of stare decisis, when the original meaning (or intent, etc.) is satisfactorily discernible, the interpreter must follow it.  This is the central thesis that self-professed originalists maintain and that their critics (the non-originalists) deny.

This is perhaps the single most important fact to understand about the originalism debate today, so I will risk belaboring it.  Non-originalists do not deny that the original public meaning of a constitutional provision, or the meaning that the Framers or the ratifiers intended to entrench, or even the purposes that they aimed to advance, bear on proper judicial constitutional interpretation.  Non-originalists typically accord weight to all these things.  But they accord weight to other considerations too, such as the historical practices of the nonjudicial branches, longstanding cultural understandings, widespread contemporary values, and even the interpreter’s own judgments about justice and workability.  Of course, non-originalists do not all agree on how much interpretive weight each of these other considerations should get (or even which other considerations should get any weight at all).  What distinguishes originalists from non-originalists is that the former affirm, and the latter deny, that the judiciary is obligated to interpret the Constitution in accord with some aspect of its original character.³

Think of “originalism” as capturing a family of actual or possible views about constitutional interpretation, views that vary across several dimensions.  On the dimension of strength, we can distinguish three claims:

(1) Weak Originalism:  Original meaning contributes to constitutional meaning.

(2) Moderate Originalism:  Original meaning contributes substantially to constitutional meaning.

(3) Strong Originalism:  Original meaning contributes decisively to constitutional meaning.

When participants in contemporary interpretive debates discuss originalism simpliciter, or originalism unmodified, they overwhelmingly refer to strong originalism—whether or not qualified by an exception for judicial precedent.⁴ In saying this, I am making an empirical generalization, not asserting a supposed conceptual truth.

Over the years, scholars have criticized originalism on diverse grounds, including that the target of the originalist search is undiscoverable or nonexistent, that originalism is self-refuting because the Framers intended that the Constitution not be interpreted in an originalist vein, and that originalism yields bad outcomes.  I proceed differently.  Instead of mounting arguments for why originalism is not true, I endeavor to catalogue the varied arguments proffered to establish that it is and to evaluate such arguments critically.

Arguments for originalism can be sorted into two broad classes—what I call hard and soft.  Originalism is hard when grounded on reasons that purport to render it (in some sense) necessarily true.  Originalism is soft when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches.  That is, hard arguments seek to show that originalism follows logically or conceptually from premises the interlocutor can be expected to already accept, while soft arguments aim to persuade the interlocutor to revise his value judgments or his empirical or predictive assessments.  This is just the first pass at a distinction that might still benefit from further refinement.  But, however the distinction might be best formulated, ultimately the question is whether the arguments for originalism succeed, not what their status or character is.  Still, readers of the originalism literature might find a rough grasp of the distinction useful, for recognizing a particular claim as hard or soft can prime one for the types of counter arguments that will be required.  The distinction is perhaps even more important for proponents of originalism than for critics.  The rhetoric over originalism is often heated.  Those not armed with hard arguments ought not to make hard claims.

 
II.
Assessing Originalism

Arguments for originalism—by which I mean strong originalism—are works in progress.  But three arguments predominate.  Originalism is said:

(1) to follow necessarily from the nature of meaning or of interpretation;

(2) to follow necessarily from the nature of law, or of constitutions, or of the rule of law, or something of this sort; and

(3) to constitute the optimal judicial interpretive stance, all things considered.

The first two arguments are hard; the third is soft.

 
A.     Intentionalism

Most of us believe that federal judges—Supreme Court Justices especially—are engaged in the activity of interpreting the Constitution, understood as the process of deriving or divining law (or “legal meaning”) from constitutional text.  Intentionalism is a theory of interpretation generally, not a theory of constitutional interpretation in particular.  Intentionalists contend that interpretation of any text—a poem, a musical score, a blueprint, a sign, a contract, a statute, a constitution, etc.—is necessarily a search for the author’s intentions.  As explained by Steven Knapp and Walter Benn Michaels, the literary theorists who have championed intentionalism most ardently, “the meaning of a text is simply identical to the author’s intended meaning.”⁵ If this is true, then the meaning of the Constitution is the originally intended meaning, and the job for present-day constitutional interpreters is simply to unearth that originally intended meaning.

But on what grounds should we conclude that intentionalism is true?  First, a favorite intentionalist tactic is to appeal to readers’ pre-theoretical intuitions that, in a range of everyday contexts—from reading a grocery list to ordering off a menu—interpreters ought to search for the author’s intended meaning.  Second, intentionalists insist that meaning cannot simply “inhere” in a text without animating intention.  The supposed fact that a stalactite’s drippings cannot create a meaningful text no matter how much they resemble words in a known language presumably establishes that texts derive their meaning from the author’s intention.  Third, intentionalists argue that intentionalism is required to render the act or practice of interpretation rational.  As Stanley Fish has put it:

For interpretation to be a rational activity and not a form of what H.L.A. Hart calls “scorer’s discretion,” there must be an object prior to and independent of the interpreter’s activities, an object in relation to which you can marshal and assess evidence and measure progress. . . . The only object of interpretation that makes it a rational activity rather than a free-for-all is the intention of the author.⁶

Now, the first argument is inadequate because nobody denies that intended meaning is both a valid form of meaning and the frequently appropriate target of interpretation.  The only thing that non-intentionalism denies is that interpretation must be a search for intended meaning in all interpretive contexts, and with respect to all types of texts—poems, statutes, grocery lists, invitations, instruction manuals, etc.  Non-intentionalism as a general theory of interpretation is no more anti-intentionalism than non-originalism as a theory of constitutional interpretation is anti-originalism.  Accordingly, the intentionalists’ challenge is to explain why we must always interpret all texts solely in accordance with presumed authorial intent. The remaining arguments are designed to address that question, but are not up to the task.

To start, few non-intentionalists contend that meaning simply inheres in shapes or sounds or even in lexical items fashioned around grammatical structures.  Even assuming arguendo that nonhuman artifacts cannot have semantic meaning and, therefore, that the intention of an agent to convey meaning is necessary for the text thereby produced to bear meaning, it does not necessarily follow that the meaning that the text bears must be the meaning that its author intended.  We might say that some authorial intentions (to communicate and to use a particular language, for example) could be preconditions for interpretation (if they are even that), without such intentions necessarily serving as the target of interpretation.

Finally, it is plainly false that, once we untether meaning from authorial intention, a text can mean just anything at all.  Interpretation is everywhere constrained by cultural conventions.  Furthermore, our reasons for interpreting a given text might themselves provide reasons for or against different interpretive targets.  When the reader’s purpose in interpreting a text is to coordinate with the author or to glean information from him, she will rarely have any reason to engage in non-intentionalist interpretation.  But not all communication is designed to effect coordination or convey information.  Constitutions might be designed—and, in any event, might be understood and valued—in part to secure good outcomes within broad constraints.  Thus, the standards that determine whether a given interpretation is true (or more or less plausible) would not be determined by conceptual truths standing apart from our reasons for engaging in the interpretive activity.  Rather, our reasons for engaging in interpretation (understood as activity) would partly determine the standards by which interpretations (understood now as the output of the activity) are measured.

 
B.     Law

Contentions that originalism somehow follows from the very nature of law or from some noncontroversial feature of our law, or of our Constitution, are common but elusive.  Often, they rest on a quasi-Austinian picture of law itself that needs no further discrediting.  Some originalists, however, contend that to treat a constitution as binding or authoritative entails that what we treat as binding is its original meaning.  It is the original meaning of the Constitution that confers upon the Constitution its authoritative character, the fact that we take ourselves to be bound by it.  And this is so, they often say, because our Constitution is written.  But precisely why the writtenness of the Constitution dictates originalist interpretation is hardly obvious.  As Keith Whittington, who has pressed the originalist “argument from authority” with uncommon vigor and sophistication, recognizes, “the nature of the constitutional text can be conceived of as a fixed referent for political debate.”⁷

Theorists who would derive originalism from principles of law sometimes place particular weight on the rule of law, a congeries of values like transparency, stability, and predictability.  The idea is that these values can be respected or realized only through an originalist posture.  But this is again false.  For one thing, these values are sometimes better served by interpreting the Constitution in accord with widespread contemporary beliefs about its meaning or expectations about judicial practice, rather than by appeal to understandings that are centuries old and that require painstaking historical investigation to excavate.  For another, the argument encounters a reductio.  We have never had a resolutely originalist Supreme Court Justice, let alone an originalist Supreme Court.  If the rule of law requires originalism, then it must follow that the United States has never respected the rule of law—a conclusion that few will swallow.  In short, arguments that strong originalism is entailed by the rule of law—or by other core values such as democratic accountability and separation of powers—routinely rely on the erroneous assumption that such values can be realized only fully or not at all.  They fail to appreciate that an interpretive approach, just like any feature of the system of constitutional governance, can satisfy or embody these values to greater or lesser degrees.

 
C.     Pragmatism

If originalism does not follow from the nature of interpretation or from the nature of law, or from basic legal concepts or values to which our constitutional order is committed (such as legal authority or the rule of law), originalism might nonetheless be defended on essentially soft pragmatic grounds as simply the best way to run the railroad.  Indeed, two versions of this argument can be unearthed, what we might think of as act-consequentialist and rule-consequentialist variants.  Both variants recognize a multiplicity of values or ends that constitutional adjudication should serve:  promoting the stability of legal norms and the predictability of judicial decisions, permitting space for contemporary democratic decisionmaking, respecting the intentions and expectations of previous ratifying generations, advancing justice and preventing injustice, ensuring a workable legal system flexible and robust enough to meet the economic and geostrategic needs of a world power in the twenty-first century, etc.

The act-consequentialist pragmatic argument for originalism maintains that, in each individual case of interpretation, these values are optimized by interpreting the constitutional text in accordance with the specified aspect of its original character—say, its original public meaning—either because one of the relevant values or desiderata is lexically prior to all others and is always best served by the originalist interpretation or because, although the ordering of relevant values is nonlexical, it just so happens that an originalist interpretation always optimizes their collective realization.  The rule-consequentialist variant concedes that if the interpretive approach were up for grabs on every individual occasion of interpretation, then non-originalist interpretations would sometimes be optimal.  But it claims that constitutional interpretation must proceed in accord with a clearly articulable rule, and that only originalism can furnish what is needed.

The act-consequentialist variant is implausible once we recall that the debate over originalism presents a choice, not between following the original understanding always or following it never, but between following the original understanding always and following it sometimes.  Because genuine alternatives to strong originalism include interpretive postures that give substantial, albeit not conclusive, weight to original meaning, act-consequentialist arguments are not remotely likely to support strong originalism against all positions that fall within moderate originalism.

Does the rule-consequentialist variant fare better?  Precisely why interpreters of the Constitution should proceed by means of an interpretive rule, and not a standard, is rarely spelled out with specificity.  Although originalists frequently invoke the slogan that “it takes a theory to beat a theory,” this adage cannot by itself explain why judges must follow the (more or less) sharp-edged rule that originalism supplies for selecting among candidates for constitutional meaning.

 
D.     The Noble Lie

The most promising reason to prefer rule-like strong originalism to a more standard-like moderate originalism rests on the perceived inevitability of drift or slippage from the announced interpretive method to the method actually practiced.  Under present practice, interpretive rules are given by judges to themselves; there is no authoritative external promulgator or enforcer of interpretive rules.  Therefore, that originalism produces better consequences on balance than any of its competitors is a reason for judges to embrace it only on the assumption that judges should be guided in their decisionmaking by the goal of realizing best consequences (by whatever metric of value the theorist proposes).  But if so, cases would inevitably arise in which judges were quite confident that departing from the original meaning, on that occasion, would produce better consequences than would following it, even when accounting for whatever marginal negative effect nonconformity with the interpretive rule on the occasion in question might have on future conformity with the rule.  In short, the pragmatic case for originalism runs up against all the usual objections to rule-consequentialism.

This might look like an argument against strong originalism, but it actually amounts to just the opposite.  If strong originalism were the law in the books, the originalist admits that it would reduce in practice to some form of moderate originalism.  But if moderate originalism were the law in the books, the originalist continues, it too would become something even weaker in practice—perhaps mere wish fulfillment, or what Fish and Hart call “scorer’s discretion.”

This final argument for preaching strong originalism even while knowing that it cannot be successfully defended against all forms of non-originalism, then, would be that the theoretically better alternative of a genuine moderate originalism is not practically attainable.  If we want some checking of pure judicial subjectivity, we need to forcefully avow strong originalism—we might even need to avow hard strong originalism—even if we will actually prefer some unacknowledged departures from such strong medicine.

This variant of the Noble Lie is, I think, likely the best argument for strong originalism.  But I doubt it is good enough.  As Justice Scalia himself insists, “the American people are not fools.”⁸ They can see and understand dishonesty.  And judicial dishonesty might be especially likely to have a corrosive effect on public acceptance of the judicial role and a corrupting influence on judges themselves.  Thus, does my originalist colleague Lino Graglia rightly proclaim “that honesty is the best policy, particularly for public officials and even more particularly for judges.”⁹ It is cause for concern, then, how often self-proclaimed originalists abandon originalism to advance what seem to be their political preferences.  As one recent empirical study concluded, “Justices might speak about following an ‘originalist’ jurisprudence, but they only appear to do so when arguments about text and intent coincide with the ideological position that they prefer.”¹⁰ Admittedly, past performance is no guarantee of future results, but it generally is the best single predictor.  Observing that “[o]riginalism is the legal profession’s orthodox mode of justification,” one originalist urges that “the Court should align its practice with its preaching.”¹¹ But the practice is unlikely ever to accord with originalist dogma.  Thus, the originalist’s advice might have things backward:  The virtue of candor would be better served were the Court to align its preaching with its practice.

 
Conclusion

Reasonable people can reasonably disagree regarding the considerations that should shape judicial constitutional interpretation, but I am aware of no theorist who believes that original meaning is irrelevant and few, if any, who would treat original meaning cavalierly.  Originalists are committed to a stronger position:  They contend that judges owe fidelity to original meaning (or intent, or the like) to the exclusion of all other considerations, with a possible exception for judicial precedents that do not themselves follow original meaning.  But the arguments thus far mustered for this demanding thesis are inadequate for the task.  The upshot is not that constitutional interpretation should disregard the Framers’ intentions, ratifiers’ understandings, or original public meanings.  Of course we should care about these things.  But we can take the original character of the Constitution seriously without treating it as dispositive.  That original intents and meanings matter is not enough to render originalism true.

Acknowledgments:

Copyright © 2009 New York University School of Law.

Mitchell N. Berman is Richard Dale Endowed Chair in Law at The University of Texas (Austin) Law School.

This Legal Workshop Editorial is based on the following full-length Article: Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1 (2009).

In large-scale, high-stakes litigation, jury verdicts are likely both to garner national attention and to shape outcomes for other cases, filed and unfiled.  It is no secret that repeat players in these cases, best positioned to control their exposure to perceived jury bias, maneuver cases toward favorable jury pools.  This tactic in turn subjects the jury to criticism that local decisionmakers impose their will on the rest of the country.  The problem stems from a disconnect between the scope of these controversies and the scope of the pool from which jurors are drawn to decide them.  If the community affected by the litigation is national, then a local decisionmaker may not fairly represent the relevant constituency.  This disconnect compromises the constitutional assurance that the decisionmaker be drawn from a fair cross-section of the community, a community whose borders ought to be drawn with an eye toward the dispute.

The forum-seeking choices made by both plaintiffs and defendants (especially in mass tort cases) are driven by expectations about the identity of the decisionmaker, particularly for the first case to come to trial.  Plaintiffs usually file in state court—and fight to stay there—in order to secure the decisionmaker of their choice: the local jury.  Defendants typically want to avoid state court juries and routinely remove cases to federal court whenever possible.  They seek the federal forum in the hope that a judge will dispose of the case on a pretrial motion; failing dismissal, defendants hope to control the jury pool either by enlarging it to encompass a federal district or by transferring the case to a location where more favorable jurors are likely to be summoned.  Congress is well aware of the mass tort gamesmanship:  It recently passed legislation in an effort to control the phenomenon.¹

When parties litigate a case of national scope, I argue that the proper jury pool is neither local (as in state court, where jury pools are typically defined along county lines) nor regional (as might be true in a federal district):  A national case demands a national jury drawn from a national pool.  Because cases of national scope are now more likely than ever to be concentrated in federal court, the problem of summoning jurors outside the court’s sovereignty is obviated.  But many problems, political as well as logistical, remain.  In the end, we must assess whether the gains to populism and legitimacy are worth any efficiency loss.

This proposal connects the waning legitimacy of the civil jury in large-scale litigation to the disparity between the scope of the local jury pool and the scope of the cases.  I argue that the use of national juries for cases of national scope will improve both the actual and perceived quality of lay decisionmaking and will restore legitimacy to jury verdicts.  Moreover, the democratic values animating the constitutional right to jury trial can best be realized in large-scale litigation by empanelling a national jury.

The first step in evaluating the concept of a national jury is to identify the types of cases that would qualify for national jury treatment.  One issue that need not detain us long is the problem of state versus federal jurisdiction.  Although empanelling a national jury in a state court case might raise sovereignty problems, recent statutory innovations have already moved the vast majority of national cases into federal court.  The Class Action Fairness Act (CAFA) and the Multiparty, Multiforum Jurisdiction Act (MMTJA) replace the traditional federal jurisdictional requirement of complete diversity with one of minimal diversity, making it far easier for plaintiffs to file in federal court or, more commonly, for defendants to remove cases from state courts.² Implicit in both pieces of legislation is the notion that local juries should not be allowed to control the fate of a national business based on the fortuity that a local claimant has brought suit—or, worse, that a plaintiff has forum-shopped to get access to a particular local jury pool.  Indeed, these legislative initiatives are widely recognized as responsive to the defense bar’s common complaint that corporate defendants could not get a fair shake in state court.

Because most litigation of national scope will meet the minimal diversity requirements of CAFA and MMTJA, getting into federal courts will be straightforward.  The next step is to determine which of these cases best lend themselves to national jury treatment.  The federal courts’ experience with complex litigation over the last several decades suggests at least two types of cases that should qualify: nationally aggregated claims and individual cases that serve a “bellwether” function for related litigation.  Indeed, aggregation appears to be a clear trend.  In addition to the long-standing practice in federal court of concentrating all cases pending on a certain topic (Vioxx, say, or Firestone tires) in one particular federal district under multi-district litigation procedures for pretrial handling, Congress has facilitated the aggregation of many more cases that previously would have stayed in state court by federalizing them via CAFA and MMTJA.  Many of these aggregated cases encompass thousands, sometimes even millions, of individual claims.  Cases that serve as bellwethers can occur both within these aggregated juggernauts and outside them:  These are cases that are tried to test the value of claims to inform the settlement negotiations for other similar claims.  Thus, the decisionmakers in these aggregated and bellwether cases are making decisions that can impact potentially millions of people.  Yet we adhere to a system of jury composition that draws jurors from whatever locality in which the trial happens to take place, a vagary that may be driven by party forum-shopping or judges’ expertise, but does not reflect the scope of the task at hand.

The civil jury’s legitimacy is inextricably tied to its relationship with the community from which it is drawn.  The verdicts of local juries in local cases seem legitimate when the jury’s decisionmaking reflects local values.  If the legitimacy crisis in complex cases reflects the disconnect between the national scope of large-scale litigation and the local community from which the jurors hail, the question becomes whether the verdicts of a national jury would carry more legitimacy.  I think so for three interrelated reasons.  First, national juries would not be subject to the criticism that local values should not set national policies.  Judge Posner once famously argued that “a single trial before a single jury” produced by class certification of a national “issues” class would allow that one jury to “hold the fate of an industry in the palm of its hand.”³ He asserted that a better alternative would be to submit the issue to “multiple juries constituting in the aggregate a much larger and more diverse sample of decision-makers.”⁴ A national jury might address Judge Posner’s concerns:  The jury would be larger in number,⁵ commensurate in scope to the dispute, and representative of the community that will feel the effect of the decision.

The second reason that national juries may produce more legitimate verdicts is that parties will lose some of the incentive to forum-shop.  Filing a claim in a particular district will no longer carry the advantage of capturing a particular local jury pool.  After all, the perception of rampant forum manipulation motivated Congress to adopt legislation to shift most class actions and large-scale single-event tort cases to federal courts.  A national jury system would align the decisionmaker with Congress’s nationalization impulse.

Third, national jury verdicts will have greater legitimacy because the quality of decisionmaking is likely to improve when jurors are drawn from a national pool.  Venire members drawn from local pools are more likely to share local biases, and these biases are mutually reinforcing during deliberations.  Indeed, this bias factor is precisely why litigants forum-shop.  The national venire will negate that problem and could maximize diversity in terms of both demographics and interests.  Thus we could gain the superior collective decisionmaking of a group with “diffused impartiality.”⁶

The Seventh Amendment, which preserves the right to jury trial in federal civil cases, has forced us to tolerate some efficiency loss and forum manipulation because its Reexamination Clause is an important check on procedural innovations to streamline complex litigation.  Techniques that pluck out particular issues for aggregate resolution (like issue classes under Rule 23(c)(4)) or for separate treatment (like bi-, tri-, or polyfurcation) risk forbidden “reexamination” if future decisionmakers reconsider decided issues while evaluating remaining issues that overlap.⁷

The reexamination problem reflects tension between competing values in complex litigation:  Consolidated cases may lead to unconstitutional reexamination of overlapping issues, yet trying individual cases presents problems of efficiency loss and forum manipulation.  We must therefore choose between the evil of bifurcation and the evil of inefficient relitigation of the same issue, with the concomitant risk of inconsistent results.  A third option—treating a single litigation as a national unit—vests too much power in one local jury to unleash national consequences.

Is there a fourth option?  Empanelling a national jury would mitigate reexamination problems while preserving the efficiency gains of aggregation.  A national jury would also address the concern that a local citizenry should not decide issues of national importance.  And, most importantly, it would vindicate the animating concern of the Seventh Amendment: citizen participation in civil dispute resolution.

Our willingness to work out the logistical details of the national jury proposal and to absorb its inevitable costs is a function of our commitment to citizen participation in large-scale litigation.  One difficulty, of course, will be assembling a national jury pool representative of a country as large and diverse as the United States.  Even in much smaller jury districts, underrepresentation of minorities on jury venires has sparked an enormous amount of scholarly literature and litigation.⁸ Congress would have to consider how to assemble a nationally representative venire.  A starting point might be to draw candidates for the national jury pool from congressional districts, since those boundaries have already withstood constitutional and statutory scrutiny under election laws.⁹ The census process could also be used to draw districts.

The expansion of jury pools from local to national may also require us to rethink the size of the venire and the petit jury, as well as verdict format and voting mechanisms.  Obtaining some semblance of the required representativeness will no doubt require larger juries than the current six or twelve members.  Indeed, in order for a national jury to function, the discussion may well have to shift to how large a group can effectively deliberate without becoming unwieldy.

The grand jury model may prove useful.  One can imagine a national jury as a cross between the grand jury and the special jury:  Jurors could serve for specified lengths of time, perhaps in particular courts hosting multi-district complex litigation.  The learning curve for such jurors would be high.  Having decided, say, causation issues in one products liability case, the national jury would have an informational advantage in understanding procedure and applicable substantive law for other cases.  And this gain can be realized without sacrificing the democratic makeup of the jury—a quality lost in elitist special juries.

The civil jury, though steeped in history, is not frozen in time.  In an era of increasingly complex litigation, the civil jury must adapt structurally to modern disputes while preserving its rich history and constitutional function.  Empanelling national juries in cases of national scope may well be the only way to preserve meaningful citizen participation in large-scale litigation.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Laura G. Dooley is Professor of Law & Michael and Dianne Swygert Research Fellow at Valparaiso University School of Law.

This Legal Workshop Editorial is based on the following Article:   Laura G. Dooley, National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation, 83 N.Y.U. L. REV. 410 (2008).