Nov 21, 2010 Michael Froomkin
John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
This post is set to have zero paragraphs transfer to the main blog.
A decade ago the unregulated Internet was already subject to attempts to regulate: first-generation regulation was in full flow. Today a second wave of internet regulation is based on a better understanding of the Internet and of law’s ability to shape and control it. Some things about the second wave are encouraging, but even more is troubling. Internet regulation is increasingly based on a sound understanding of the technology, minimizing pointless rules or unintended consequences. But where a decade ago it was still reasonable to see the Internet technologies as empowering and anti-totalitarian, now regulators in both democratic and totalitarian states have learned to structure rules that cannot easily be evaded, leading to previously impossible levels of regulatory control.
First generation Internet regulation involved three differently motivated reactions to disruption.
1) Categorization. Was the Internet speech more like radio, or newspapers, or private letters? Was e-commerce like catalogue sales? Is encryption speech or a widget? Where is an online transaction? But the categories were contestable because the true nature of the Internet-mediated activity was unclear, analogies are imperfect, parties dueled about levels of generality, or category choice determined outcomes.
2) New categories and new institutions (e.g. ICANN). Either existing categories seemed inadequate, or new technology promised new capabilities or new solutions to old problems. Sometimes, proponents saw in the Internet an opportunity to achieve otherwise unjustifiable regulatory goals. Occasionally (e.g. digital signature regulation), enthusiasts enabled solutions that had yet to find problems.
3) Preserving (or reinstating) the status quo. As government attempts to set technical standards failed (e.g. the Clipper Chip), policy makers legislated more directly (e.g. the US’s DMCA and CALEA, the UK’s RIPA).
Nov 19, 2010 Linda Jellumadlaw
Jack M. Beermann,
End the Failed Chevron
Experiment Now: How Chevron
Has Failed and Why It Can and Should Be Overruled, 42
Conn. L. Rev. 779 (2010), available at
SSRN.
As one academic, among many, who has made my scholarly reputation based in part on the landmark case of Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984), I noted with some concern Professor Jack Beermann’s latest work entitled: End the Failed Chevron Experiment Now: How Chevron Has Failed and Why it Can and Should be Overruled. Overrule Chevron? End the experiment? Say it ain’t so! Hadn’t Chevron offered “a wonderful new world … full of promise for administrative-law professors in need of tenure articles….?” National Cable & Telecommuns. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 1019 (2005) (Scalia, J., dissenting).
I approached his article with some trepidation but also with great interest. Why would anyone want to overrule Chevron? Professor Beermann succinctly answers this question in his abstract: “Chevron has complicated judicial review and, at best, it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled.” Intrigued, I forged ahead.
His article begins by identifying a number of reasons why the Chevron doctrine has failed. Specifically, (1) the Chevron doctrine violates 5 U.S.C. § 706, the statute that generally governs judicial review of administrative decisions and requires that courts review questions of law de novo, (2) the Chevron doctrine was based on faulty presumptions regarding congressional intent to delegate by ambiguity and regarding political accountability, (3) the Chevron doctrine is highly unpredictable, (4) the Chevron doctrine has not lead to increased deference to agency interpretations, (5) the Chevron doctrine is often not cited by the Supreme Court in cases in which it should apply, (6) the Chevron doctrine has increased litigation costs, and (7) the Chevron doctrine encourages agencies and judges to act irresponsibly. Perhaps most importantly, however, Professor Beermann notes that the Chevron doctrine is simply unclear in application. First, it is unclear whether Chevron applies: Professor Cass Sunstein famously labeled the question of whether Chevron applies as Chevron step zero. Second, it is unclear how Chevron applies; in other words, is step one just a textual analysis or is it a full statutory interpretation analysis and does step two apply differently depending on whether Congress was explicit or implicit when it delegated? Third, it is unclear why Chevron applies given that the doctrine was contrary to the established distribution of interpretive power among the three branches. Finally, it is unclear when Chevron applies; in other words, does the doctrine apply to agency policy decisions or just to agency statutory interpretations?
While Chevron initially promised simplicity, it has delivered only chaos. Indeed, the Justices have developed four variants of Chevron: (1) the “original directly spoken” variant, (2) the “traditional tools” variant, (3) the “plain meaning” variant, and (4) the “extraordinary cases” variant. The number and diversity of the variants epitomizes all that is wrong with Chevron; hence, Professor Beermann concludes that the case should be overruled and the doctrine replaced with a more consistent and simple one.
After describing Chevron’s failings, Professor Beermann very briefly explains why overruling Chevron would not violate the Supreme Court’s stare decisis principles. In short, overruling Chevron would be permissible under Pearson v. Callahan, 129 S. Ct. 808, 811 (2009), in which the Supreme Court explained when overruling a case would be consistent with stare decisis principles. At bottom, overruling Chevron would not affect settle expectations because the doctrine’s application has been so unsettled. Additionally, it is a judge-made doctrine that time and experience have proved unworkable.
In the final section of his article, Professor Beermann offers two alternatives: reforming or replacing Chevron. Both alternatives would be more consistent with the APA’s assignment to the courts to review questions of law de novo and questions of policy under arbitrary review.
Alternative one: if Chevron were not jettisoned, Professor Beermann begs that it at least be reformed. Specifically, he argues that the narrow, step one variants be rejected. Courts should be free to interpret statutory language using all the traditional tools of interpretation. Such a change would return interpretive power to the judiciary. Second, he recommends that step two be limited to occasions when Congress explicitly delegated a range of choices to the agency and be expanded to include arbitrary and capricious review. Supporting this additional step, he says that it is possible for an interpretation to be a reasonable interpretation of the statute, but still be arbitrary and capricious choice. Third, he suggests that Chevron step zero die a quick and painless (painful?) death. This step simply complicates the analysis unnecessarily; rather, Chevron should apply universally, whenever Congress specifically delegated interpretive authority to the agency.
Alternative two: Instead, if Chevron were jettisoned, Professor Beermann recommends returning to pre-Chevron practice. Under this practice, assuming an agency had the power to make legislative rules, the reviewing court would determine whether the agency had interpreted the statute reasonably by paying close attention to the language of the statute, its purpose, and its history. In addition, the court would consider the wisdom of the agency’s policy choice under the arbitrary, capricious standard. Pre-Chevron, judges were the final arbitrators of statutory meaning, while agencies played an advisory role.
Regardless of whether you agree with Professor Beermann’s provocative demand to “End the Failed Chevron Experiment Now,” he has written a persuasive article that identifies and explains the problems with continuing with Chevron in its current form, whatever variant that might be. He has identified two alternatives, either of which would vastly simplify judicial review of agency interpretations of statutes. In short, while I expect many law professors might decry the loss of Chevron, this article suggests we would be crying alone.
Nov 10, 2010 Michael FroomkinConstitutional Law
John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
Michael Froomkin
Category: Constitutional Law.
In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.
In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.
Nov 10, 2010 Michael Froomkinjotwell
Michael Froomkin
In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.
In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.
In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.
In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled. My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question. There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff. Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.
Nov 10, 2010 Michael FroomkinAdministrative Law
John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
Michael Froomkin
I’ve categoried this as “Administrative law”. Tagging isn’t the problem, Categories are. I’ve set this to get 4 paragraphs.
In Hauter, the warranty was express, although the remedy in the event of injury was not stated, so the court never had to reach the question of whether consequential damages could be limited by contract. The reliance issue is one on which an enormous amount of ink has been spilled.
My basic position is that reliance as an independent element should never be relevant where there is privity between the plaintiff and the defendant. The defendant has indicated a willingness to be bound and has been paid to take the risk in question.
There is no stipulation for reliance at the time of the agreement and none should be imposed on the plaintiff after the fact. But those cases in which there is no privity represent a very different kettle of fish indeed. If there is no reliance, it is impossible to see how any linkage can take place between the parties if there is neither an intention to be bound by the defendant nor an intention to bind the defendant by the plaintiff.
Indeed in my view, the reliance issue here should be decided by the same approach taken by third-party-beneficiary contracts: the former question should be the decisive one: does the defendant have a willingness to be bound? Therefore, in dealing with this line of cases the right question should be: where there is contractual silence, does the creation of the third party action look as though it is, ex ante, for the joint benefit of the parties? Within the context of Hauter, at best U.C.C. 2-313 should switch the burden of proof, and not dispense with reliance altogether.
2-J Corporation follows the modern trend to exempt from the contract rules goods stored in a warehouse, where again the variation in values makes it hard to charge a sensible premium for the original sale. Treating the replacement engine rods in Sea-Land as original property has to make sense because this is contemplated from the outset, and the new stuff just takes the place of the old stuff, and is not added on. All in all, however, these cases do not demonstrate any principled analysis of the insurance question. Rather, they take a doctrinal category that itself is imperfectly realized and apply it to new situations.
Nov 10, 2010 Michael FroomkinConstitutional Law
John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
The materials on express warranty show that these warranties are still a possible basis of liability. Indeed, the manufacturer that wants to give a limited express warranty runs the risk that materialized in Collins: that it is impossible to give a half a loaf. Thus, a warranty which is broader than the law requires (i.e., one that guarantees absolute safety and not simply merchantability) cannot be drafted to exclude consequential damages when the product itself contains no defect. The Collins decision creates the odd, indeed dangerous, incentive of confining liability to the limits already imposed by law, leaving both manufacturers and consumers the losers. Expanding coverage has been made too costly.
The materials on express warranty show that these warranties are still a possible basis of liability. Indeed, the manufacturer that wants to give a limited express warranty runs the risk that materialized in Collins: that it is impossible to give a half a loaf. Thus, a warranty which is broader than the law requires (i.e., one that guarantees absolute safety and not simply merchantability) cannot be drafted to exclude consequential damages when the product itself contains no defect. The Collins decision creates the odd, indeed dangerous, incentive of confining liability to the limits already imposed by law, leaving both manufacturers and consumers the losers. Expanding coverage has been made too costly.
The materials on express warranty show that these warranties are still a possible basis of liability. Indeed, the manufacturer that wants to give a limited express warranty runs the risk that materialized in Collins: that it is impossible to give a half a loaf. Thus, a warranty which is broader than the law requires (i.e., one that guarantees absolute safety and not simply merchantability) cannot be drafted to exclude consequential damages when the product itself contains no defect. The Collins decision creates the odd, indeed dangerous, incentive of confining liability to the limits already imposed by law, leaving both manufacturers and consumers the losers. Expanding coverage has been made too costly.
Cite as: Michael Froomkin,
Test of Tags #2, JOTWELL
(November 10, 2010) (reviewing John Hart Ely,
The Wages of Crying Wolf: A Comment on Roe v. Wade,
82 Yale L.J. 920 (1973)),
https://zetasec.jotwell.com/test-of-tags-2/.
Nov 10, 2010 Michael FroomkinAdministrative Law
John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
We’ll test this post for tags.
The materials on express warranty show that these warranties are still a possible basis of liability. Indeed, the manufacturer that wants to give a limited express warranty runs the risk that materialized in Collins: that it is impossible to give a half a loaf. Thus, a warranty which is broader than the law requires (i.e., one that guarantees absolute safety and not simply merchantability) cannot be drafted to exclude consequential damages when the product itself contains no defect. The Collins decision creates the odd, indeed dangerous, incentive of confining liability to the limits already imposed by law, leaving both manufacturers and consumers the losers. Expanding coverage has been made too costly.
This post will be tagged “Administrative Law”. Although its source is Zeta-Section.
Cite as: Michael Froomkin,
Test of Tags #1, JOTWELL
(November 10, 2010) (reviewing John Hart Ely,
The Wages of Crying Wolf: A Comment on Roe v. Wade,
82 Yale L.J. 920 (1973)),
https://zetasec.jotwell.com/test-of-tags-1/.
Nov 5, 2010 Eric Pancorp
Poor Delaware. The small state (45th in population and 49th in geographic size) is the dominant corporate law jurisdiction in the United States, and for decades the academic community has been fascinated with the reasons why. Initially, scholars portrayed Delaware as the savvy champion of a fierce competition for corporate charters. The quality of its courts, the richness of its case law, and the responsiveness of its legislature made Delaware the most attractive place to incorporate for US public companies. When Marcel Kahan and Ehud Kamar’s wrote The Myth of State Competition in Corporate Law, 55 Stan. L. Rev. 679 (2002), the academic community’s view of Delaware had changed: Delaware was not facing direct competition from other states, but rather winning by default.
More so than any other corporate law scholar, Mark Roe has tried to explain why Delaware still has much to fear. Roe is well known for his argument, articulated in Delaware’s Politics, 118 Harv. L. Rev. 2491 (2005), that Delaware faces a competitive threat from the possibility of corporate governance regulation by the federal government. Roe’s analysis, originally written in the wake of the Sarbanes-Oxley Act of 2002, has proven prescient with the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act last July, which introduced a host of significant corporate governance reforms for US public companies, including say-on-pay and proxy access.
Like the Stephen King of corporate law, Roe is now back with a new set of reasons why Delaware should be afraid . . . very afraid. First, armed with data on Delaware’s franchise tax receipts and incorporations by companies into Delaware, Roe presents some striking statistics:
- Every year, Delaware experiences a 10 percent turnover in its list of active firms;
- About 70 percent of Delaware’s active firms incorporated in the state only in the last ten years;
- 54 percent of Delaware’s 2008 franchise tax revenues came from firms that incorporated in Delaware in the past ten years; and
- The amount of time it would take for Delaware to lose half of its franchise tax base (assuming no replacements through new incorporations) has shrunk from 25 years in 1983 to only about ten years in 2008.
Thus, Delaware’s position is precarious. Due to corporate mergers, reorganizations and failures, Delaware’s base of firms decreases at a steady rate. In order to maintain franchise tax receipts at current levels, Delaware must constantly convince new and existing firms to incorporate or reincorporate in Delaware. This need to attract new business, even in the absence of active competition from other states for these incorporations, is a competitive pressure on Delaware to invest in improvements to its corporate law regime.
Second, Roe notes that the threat of a new entrant into the market for incorporations is enough to keep Delaware on its toes. While no state has the same combination of attractive attributes as Delaware, Roe does note that other states do have “toeholds” that could quickly make them viable challengers to Delaware if an opportunity arose. Roe is fascinated by recent efforts by shareholder activists, like Carl Icahn, to push companies to reincorporate in North Dakota where a lawyer for Icahn and other shareholder activist groups drafted a new corporate law for the state. But even beyond North Dakota, other toeholds include those states that are developing quite sophisticated jurisprudence regarding the governance of non-corporate business entities and New York with its commercial court system.
Finally, Roe returns to his old theme of the threat posed by federal agencies expanding their efforts to make corporate law.
Roe’s portrayal of North Dakota and other states quietly waiting for Delaware to stumble before making their move would normally generate skepticism. As Lucian Bebchuk, Assaf Hamdani and others have noted before, the barriers to entry for states to enter into a market for corporate charters are quite high. But what makes the threat more serious is Roe’s data on reincorporations and the half-life of Delaware franchise tax base. I do not believe that anyone, other than perhaps those who work for the Delaware Secretary of State, realized how much Delaware relies on a constant flow of new incorporations. As franchise taxes fund a remarkable 17 percent of the its budget, Delaware cannot afford to let this revenue stream end.
The implication is that Delaware is on the defensive. Its priorities lie in preventing other jurisdictions from developing advantages that could draw away new incorporations, and there is no incentive for Delaware to go out on a limb with new reforms that could alienate either the corporate managers who make the reincorporation decisions or the institutional investors who may escalate efforts to avoid Delaware. For those of us who have been critical of various aspects of Delaware corporate law (see, e.g., my paper on problems with the Delaware duty to monitor, available at SSRN), the lesson appears to be to effect change from the outside. Having federal agencies or other state courts and legislatures consider certain corporate governance reforms may be the best way to get the attention of the Delaware legislature and courts.
Oct 27, 2010 Adrian Vermeuleclassic
Herbert W. Horwill, The Usages of the American Constitution (1925).
A great deal of recent work distinguishes the small-c constitution from the Constitution. The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions. The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution. A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.
Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs for an audience in the Old World; his book thus falls into a genre defined by Tocqueville and Bryce. Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today. In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of office. The convention was sufficiently powerful, Horwill relates, that presidents would meet their Mexican counterparts half-way across a bridge over the Rio Grande. Woodrow Wilson shattered the convention with his extended stay in Paris after the First World War, and it has now vanished from view altogether.
Wilson also shattered another convention, which held that the President should deliver messages to Congress in writing, never orally and in person. The Constitution’s text requires a State of the Union message, but does not specify the form it should take. Washington and Adams delivered speeches in person, but Jefferson switched to written messages – according to Bryce and Horwill, either from the high republican principle that the president should not overawe Congress with his quasi-monarchical presence, or because Jefferson disliked public speeches. Jefferson’s practice became encrusted with a constitutional aura and lasted for over a century.
In these examples and more generally, the central theoretical question is how constitutional usages arise and then persist, change or disappear over time. Horwill explicitly defines “usages” to refer to conventions in the Commonwealth lawyers’ sense – not mere behavioral regularities, but behavioral regularities resting on a “general agreement” that the behavior is “the proper thing to do.” (P. 22.) But how do such general agreements with normative force develop and change? Much of the literature on small-c constitutionalism skates over these questions, and thus works with ill-specified concepts or posits conventions and norms without specifying any underlying causal mechanisms.
The puzzles are numerous and daunting. If the conventions against presidential travel abroad and against oral delivery of messages to Congress existed, how could Wilson violate both of them without serious political repercussions? Perhaps the near-costless violation of a purported convention shows that it never existed at all, as Jon Elster suggests in a recent paper on unwritten constitutional norms. Conversely, however, some conventions seem to come into existence only when and because they are violated. After President Obama chastised the justices of the Supreme Court, sitting at his feet during a State of the Union Address, some claimed that Obama had violated a constitutional norm protecting the justices’ independence. Before Obama acted, however, no one claimed that such a norm existed because presidents never publicly confronted the justices in person, face-to-face, and so no one thought about the issue. The norm crystallized only after and because it was shattered.
Horwill devotes a chapter to how and why constitutional usages change, and offers some acute observations. His main theory is straightforward: constitutional usages are shaped by the anticipation of sanctions from public opinion, which constrains officials and politicians through fear of public shaming or loss of an election or a job. Every four years, presidential electors, who the framers thought would exercise independent judgment, instead vote slavishly along party lines and thus, as a group, vote for the candidate of whichever party prevailed at the polls. They do so in part because other electors have done so in the past, but mainly because the parties and indeed the general public would be outraged if they did otherwise. Furthermore, political actors under the shadow of public opinion will make “mutual concessions for the avoidance of a deadlock in the government,” (P. 209), presumably because constitutional showdowns are a risky game in which either side may come out worse – as the Republican congressional majority discovered when it forced a government shutdown in 1995, and suffered for it politically. The concessions needed to avoid such a fate establish new usages, which in turn become focal points that shape future behavior.
Yet Horwill also explores complications. Public opinion is often inert or nonexistent on a given issue. “If the questions involved do not arouse general interest, a new usage may easily be established or an old one easily abrogated.” (P. 207.) Moreover, public opinion is partially endogenous and can be molded by political actors to some degree. Wilson was able to shatter the convention against oral addresses to Congress because he was reverting to the earlier convention of oral address established by Washington, and then changed in turn by Jefferson. In effect, Wilson appealed from traditional norms to the higher authority of the even more remote past.
Finally, and most importantly, Horwill suggests that usages can prove sticky over time just because they shape the perceived boundaries of political possibility. What propped up the post-Jefferson convention against oral addresses to Congress was not fear of public opinion, but lack of imagination: “[A]lthough the [Jeffersonian] tradition had come to be generally recognized as an unfortunate one, it did not occur to any President, until Mr. Wilson took office, that he had the power to break away from it.” (P. 199.) The cognitive hegemony of convention persists until some extraordinary actor sees that there is an unexploited opportunity to turn the unimaginable into fact.
Here and throughout, Horwill’s book is humbling. At any given time the set of unwritten conventions seems fixed, yet from the standpoint of history they have a short half-life, and many of today’s conventions will be gone a century hence. Indeed, conventions are fragile and might pop like a soap bubble instead of decaying gradually. Who knows what central unwritten usages of our constitutional order, seemingly unassailable today, might “disappear[] suddenly, almost at a touch”? (P. 207.)
Oct 27, 2010 A Michael Froomkinclassicjotwell
Jotwell is an online journal devoted to reviews of the great recent writing related to the law that top scholars in the field believe deserves a wide readership.
The Classics section, however, is a little different: it provides a home for the occasional review of classic works of law, especially those unjustly neglected. (To qualify as a ‘classic’ for this purpose the work must have been published at least 50 years before the review.) Unlike Jotwell’s other sections, the Classics Section doesn’t have a board of editors, nor will we attempt a regular publication schedule. We’ll publish something appropriate only if and when someone is moved to write it.
