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Information, the Executive and the Politics of Information
Paul G. Chevigny
In the United States, “freedom of information” has become a code word for access to information produced or controlled by the Government. In the effort to broaden that access, law and politics have constantly been intertwined, until it has become clear that the dynamics of “freedom of information” are rather different from those of other freedoms. This distinction has not always been so clear. After the Second World War, when the Western liberal powers were confidently pushing for more openness in every aspect of every society, a government's restrictions on its own information were not clearly distinguished from restrictions on free expression by the press and individuals. In 1946, as part of a resolution convening a conference on the subject, the UN General Assembly proclaimed that “freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated.” Although over forty years later it is a little hard to see what the writers thought they were saying when they passed this Resolution, it is clear at least that they were pressing for a relaxation of restraints on information held by the State as well as other sorts of information. That view was encouraged by representatives of the press, especially from the United States. After that ambiguous moment in 1946, however, freedom of information as we now know it was never to be recognized as a clear-cut human right. The UN Declaration on Human Rights takes a much more guarded view, emphasizing freedom of opinion and expression. The United States Supreme Court has never recognized any generalized constitutional right, derived from the right of free expression, of access to information within the control of the government. Quite the contrary. Although the Court has recognized and even expanded the right of the press to have access to court proceedings, which in any case and with few exceptions were traditionally open to the public, it has declined to go further. It has, for example, refused to recognize a constitutional right for news reporters to gain access to a prison where abuses were claimed to have occurred. Ronald Dworkin has argued that the forces of the press have made a strategic error in trying to derive a right of access from freedom of expression; political concerns properly restrict the right of access, he says, in a way that they ought never to restrict freedom of expression. Although I think Dworkin is probably right on this point, at least as it applies to American constitutional law, we should not let that conclusion blind us to the importance of freedom of information. For American lawyers, it is the siren-song of our Bill of Rights that we tend to imagine that a right is somehow less important if it cannot be derived from the Constitution. For reasons that I hope will be clarified below, I think freedom of information is basic to policy-making under conditions of the modem State, while at the same time it is always ringed with obvious political problems.
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Police Deadly Force as Social Control: Jamaica, Brazil, and Argentina
Paul G. Chevigny
This chapter compares the police use of deadly force in three culturally diverse urban settings-the island of Jamaica (chiefly in Kingston), the urban states of Rio de Janeiro and Sao Paulo in Brazil, and the City and Province of Buenos Aires in Argentina. Although they differ in size, in language, and in political traditions, they have a few notable characteristics in common. Under continuing conditions of debt and underdevelopment, their cities are swollen with poor people in relation to the countryside. They also share some political characteristics with the United States and Canada. They are also now liberal-democratic polities, with popularly elected officials and an aggressive free press, in which the police bear a roughly similar relation to the executive power. In each case the police bodies are protomilitary bureaucracies formally answerable to civilian law-enforcement officials, but with a large amount of customary discretion. In the United States, furthermore, the study of the use of force in common street confrontations is very familiar; it is often what we talk about when we talk about police “due process” problems. So much work has been done on deadly force in the United States that it is useful to try to apply some of the insights from that work to the problem in the Caribbean and Latin America. One of the most salient trends concerning deadly force in U.S. cities, according to a study by Lawrence Sherman and Ellen Cohn, is that the number of civilians killed by police officers dropped drastically in the years from 1971 to 1984, by about 50 percent. To give a dramatic instance, in New York City, killings of civilians dropped from a high of eighty-seven in 1971 to twelve in 1985. The trend appears to be the result of a policy decision made by police officials generally throughout the country since the 1970s. It was notoriously the case that the urban rebellions of the 1960s were frequently precipitated by police actions (not always of deadly force, to be sure) and that they were exacerbated by indiscriminate gunfire. The rebellious were not cowed but enraged by the excessive use of force. Furthermore, some police officials thought that there was no sufficient reason to shoot a person who was not a threat to the life of another. Each of these factors-societal interests combined with humane principle-have led not only to the abolition of the substantive rule justifying the shooting of any unarmed fleeing felon (Tennessee v. Garner, 471U.S.1 [1985]) but also to the radical reduction in the use of deadly force. This narrative tells us much about the use of deadly force in nonmilitary situations. When such force is broadly used, it reflects a policy of social control by violence. It is, moreover, in the last analysis a conscious policy; the senior officials have enough command over their subordinates to change the way they use their weapons. And the policy fails, finally, when it systematically provokes a violent response. It has ceased to be legitimate when it is perceived as begetting an endless round of violence. Studies of police deadly force were conducted in Jamaica in 1986 and in Sao Paulo and Rio de Janeiro in 1987 by the human rights monitoring group Americas Watch, through missions in which the author participated, and by the Centro de Estudios Legales y Sociales in Buenos Aires in 1987 and 1988. The initial reports for Jamaica and Brazil were based on statistics and cases collected through direct complaints and newspaper tallies made by local human rights groups; they have been buttressed in this article by official figures collected later by the Nucleo de Estudos da Violencia at the University of Sao Paulo. In Buenos Aires, the Centro de Estudios Legales y Sociales (CELS) had official statistics in addition to its own. These investigations show that there are proportionately more police homicides on the island of Jamaica, in Sao Paulo and Rio de Janeiro, and in Buenos Aires than there are in the United States. The contrast with the United States raises the question of whether the more frequent use of deadly force is minimally legitimate in those societies and, if so, how the justification occurs. Moreover, insofar as the patterns of violence seem to be repeated from place to place, the similarity raises the question of whether they reflect common cultural and socioeconomic patterns. Blocking the way to this or any other comparison, either among the three countries or with the United States, is the explanation customarily given by all such governments for the use of deadly force. In liberal-democratic states such as these, it appears not to be politically acceptable for the police to admit killing a large number of people arbitrarily; they must act under the cloak of the rule of law. In all but a small fraction of cases, then, each of the governments claims that shootings of civilians were justified because the civilians were armed, and often because they shot first. Fortunately, studies conducted in the United States since 1975 in the course of the effort by police officials to reduce the number of shootings, whether justified or not, imply some methods for seeing roughly what is going on behind the statistics and the justifications. Yet these methods, even if they can rend the veil of rationalizations, only make it more difficult to understand why police violence prevails in these societies, as well as why both elites and the victim class find the level of violence acceptable or even tolerable. In this connection, I have tried to construct a comparative index (also very rough) of the “perceived threat of unrest,” based on earlier studies of Latin America. Finally, I have looked at public attitudes reflected directly in opinion as well as at indirect indicators such as incidences of vigilantism.
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Beyond Foreseeability: Consequential Damages in the Law of Contract
Richard A. Epstein
The image of the Garden of Eden both before and after the Fall plays a powerful role in religious and literary theory. It also has its precise, if humbler, analogue in modern law and economics scholarship. Eden before the Fall is the complete contingent state contract: the relationship between parties is so specified that nothing that has not been anticipated can occur during the life of the contract. Each possible breach is known in advance, as are the elements of the appropriate remedy. In such a world, a common-law judge need only consult the sacred text of the contract in order to resolve all doubts about the rights and duties of the parties. The Fall from Eden is the world we live in, where contracts never cover all the contingencies that might arise. This world necessarily arises whenever the cost of contracting is positive, for now it no longer pays to draft contracts to envision what will happen in all possible states of the world, even if such were technically possible. Now contract interpretation becomes a second-best proposition that addresses the uncertainty and ambiguity that explicit provisions could have resolved but did not. Redemption after the Fall is only partial, and lies in the sound rules of contract construction. Of necessity, the possible techniques are divided into two basic types.
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Changes in Welfare Policy in the 1980s
John A. Ferejohn
The Reagan administration is sometimes thought to have reversed the growth of the welfare state by eliminating or shrinking welfare programs at all levels of government and by removing new redistributional initiatives from the national agenda. This assault on the welfare state was motivated at least in part by philosophical considerations. Leaving aside questions of cost and efficacy, the new administration aimed to confine welfare payments to the “deserving poor” (the aged, children, the permanently disabled, and others who could not be expected to enter the work force) in order to reduce the distorting effects of welfare both in labor markets and on the moral character of recipients. In practice, the administration sought to reduce payments to those with relatively high incomes by tightening eligibility standards and by reducing benefit levels on various programs (Palmer and Sawhill 1982). Looking back over developments in the 1980s, we can see that things were more complicated than this. First, in real terms, welfare expenditures continued to grow throughout the 1980s. Part of this growth was due to the increase in Social Security outlays but part was due to growth in programs with more explicitly redistributional aims. Second, where cutbacks occurred, they were largely concentrated in a transient political moment in the first year of the Administration’s tenure in office. Indeed, many of the sharpest cuts were really continuations of retrenchments begun under the previous administration. Thus, Reagan’s actual impact on welfare policy seems to have been concentrated in time during his first administration and, more narrowly yet, in his first year in office.
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Rationality and Interpretation: Parliamentary Elections in Early Stuart England
John A. Ferejohn
It is sometimes thought that rational choice and interpretive explanations of social phenomena are intrinsically opposed to each other in the sense that if one is successful in accounting for something, the other must be either wrong or superfluous. In this essay I try to show why this view is not only incorrect but is also profoundly unproductive in helping us to a richer understanding of social life. I shall argue that rational accounts and interpretive accounts are or can be complementary in an important sense. Both interpretive and rational explanations are inherently incomplete as accounts of action. At best either type of explanation can eliminate certain patterns of action as inconsistent, but they cannot fully account for social action. Fortunately, the incompleteness of each kind of explanation can be (partly) overcome by appeal to the other.
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The Personal Vote in Canada
John A. Ferejohn and Brian Gaines
Research Studies Volume 14 In the study we examine evidence, gathered from recent Canadian elections, of the existence and development of a personal vote—the tendency of citizens to base their voting decisions on characteristics of the incumbent candidate rather than on party or issues. It was argued in an earlier study that in some electoral systems—among them single-member district, plurality-rule systems—members of Parliament have a systematic incentive to develop bases of personal political support as opposed to party-based support (Cain et al. 1987). This incentive leads members to engage in activities other than those usually associated with the classical or textbook model of representation, such as the passing of laws, or the criticizing or questioning of government policy. instead they engage in direct activities within their constituencies that are aimed at developing a base of personal support. In single-member district systems, legislators may accordingly establish a reputation for responsiveness to constituent needs and demands by seeking out opportunities to serve constituents directly by soliciting and responding to constituent requests and by intervening on behalf of their electors in the bureaucratic operations of government. The earlier study yielded evidence that legislators in both the United States and Great Britain engaged extensively in constituency-oriented activities and that their actions had an impact on two areas: policy making (by shaping the policy-making institutions within the governments and by allowing members some independence from party leaders) and elections (by insulating incumbents from national electoral tides).
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The Rationalisation of Punishment
David W. Garland
In this paper I want to pursue some of the historical themes raised by Michel Foucault's work Discipline and Punish. However, I wish to do so by reference not to Foucault's work itself, but rather by exploring the broader Weberian themes and analyses upon which Foucault's research has drawn. For the most part, I will be concerned to discuss how the long-term processes of rationalization, professionalization, and bureaucratization have affected the development and functioning of modern penal systems, but I will also try to suggest the limits of these tendencies, and the counterforces with which they contend. My general contention will be that the field of punishment is marked by an endemic conflict between what Weber would term rational, non-rational, and irrational forces. The theoretical conclusion which I draw from this is that Foucault's rather rationalistic account of punishment needs somehow to be brought together with the kind of interpretation offered by Emile Durkheim in order to produce a theoretical framework more capable of understanding the complex dynamics of this social institution. The development of the disciplines is a key theme in Foucault's account of modern punishment and of Weber's account of modern society, but for both writers, disciplinary practices are only one element within a much broader developmental process in which social practices come to be “rationalized”, and “instrumentalized” in a utilitarian fashion. According to Weber rationalized social practices are those rule-governed forms of social action which are calculated and calculable, based on a self-reflexive knowledge of their aims and conditions, and oriented to achieving these ends by the most instrumentally appropriate means. Historically, and conceptually, these practices are counterposed to affective, customary or traditional forms of social action, since these non-rational or quasi-rational forms are dictated by emotion, habit or other irrational factors. The move from traditional or affective practices to rationalized forms of action is seen by Weber (and by Foucault) as a distinctively modernizing development, in which social practices become better informed, more efficient and more self consciously adapted towards specific objectives. In the course of this development, “science” (including social science) comes to replace belief, calculation replaces commitment, and technical knowledges replace traditions and sentiments as the leading determinants of action. In consequence, social practices and institutions become more instrumentally effective, but at the same time they become less emotionally compelling or meaningful for their human agents. For Weber—and in large part for Foucault too—human consequences of this ever-more rationalized social world involve not only “disenchantment” and the loss of spiritual faith and value commitment: they also entail a heavy measure of constraint and oppression which is psychologically burdensome for the individual. Weber's image of the iron cage of modern rationalism, and Foucault's vision of the disciplinary society, each attempt to capture and convey this ironic of modernity and its discontents. The great interest of Foucault's (partly-Weberian) analysis of punishment is that he shows how this broader rationalization process has transformed an institution from being a morally-charged and emotive set of ritual practices into an increasingly passionless and professionalized instrumental process. In the pages which follow, I will explore this “rationalization” of punishment in an attempt to spell out precisely what these changes have amounted to, and how they fit with this more general thesis. Having drawn up the evidence for the proposition that punishment has become, to some extent at least, a rationalized form of social practice, I will then try to place this development within= its wider context. Recalling the well-known theories of Emile Durkheim, it will be seen that this Weberian-Foucauldian theme of rationalization appears to run directly counter to the Durkheimian insistence that penality—even modern penality—is fundamentally a passionate reaction grounded in non-rational motivations and rituals. But instead of rejecting one or the other thesis out of hand, I will argue that both themes are in fact characteristic of modern punishment—although they are functionally separated to some extent within the specialised division of labour of the modern penal process. My argument will be that there are two contrasting visions at work in contemporary criminal justice—the passionate, morally-toned desire to punish and the administrative, rationalistic, normalizing concern to manage. These visions clash in many important respects, but both are deeply embedded within the social process of punishing. It is in the conflict and tension between them that we will find one of the key determinants of contemporary penal practice.
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The Effect of Tort Law on Child Welfare Liability
Martin Guggenheim
This paper will discuss trends in the area of tort claims brought in connection with acts arising out of child protection cases or investigations. There are several different contexts in which individuals such as social workers, police officers, medical health personnel and teachers, child care agencies or local governmental entities may be held responsible for torts committed in their official line of duty of child protection. The four principal categories of cases are as follows: First, parents or aggrieved parties sometimes sue when individuals have made false or erroneous reports of suspected child abuse to child protection officials. Second, individuals or agencies may be held responsible for failing to protect a child who needed protection. In these cases, the defendant is charged with committing an act of negligence by omission. The theory of these cases is that the defendant knew or should have known that the child was at risk, and that the failure to remove the child from a. dangerous situation was the proximate cause for the injuries which someone else inflicted upon the child. Sometimes, these cases are the inverse of category One cases. Officials are sued for failing to make a report when a statute requires them to do so or for failing to accept a report or act upon it after it was made. Third, officials may be held responsible for invading a family's privacy, conducting a wrongful investigation, commencing charges of neglect against a family or wrongfully removing a child from his or her parent's custody. In these cases, the defendant is charged with negligence or tortious interference with the parent-child relationship. Fourth, officials may be held responsible for injuries which occur to children once they have been removed from their parents' custody. In these cases, the defendant is charged with directly causing the injury or indirectly being responsible for an injury by failing to supervise adequately the child's placement. Many of these cases involve children who are placed in foster care in a foster parent's home or a residential facility and the child is injured in some fashion during the placement. This paper will address recent litigation in this area in the country. We begin with a look at the federal cases both because they form an important backdrop against which state cases may be explored and because it is easier, because of the uniformity of federal law, to provide a clearer national overview.
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Rights and Structure in Constitutional Theory
Geoffrey P. Miller
Ever since the constitutional revolution of the 1930s, constitutional law and theory have been dominated by questions of civil rights. The expansion of rights under the Warren Court constituted a deep-seated shift in judicial attitudes that has proved remarkably stable over time. Despite protests in some quarters that the Burger Court (1969-1986) and the current Rehnquist Court have undermined civil rights recognized during the Warren Court era (1953-1969), the fact is that the changes have been surprisingly marginal. Even precedents that were widely believed to be endangered species a decade ago – such as Miranda and Roe v. Wade – continue in force, although they have indeed been pruned back. Despite their importance, however, these high-profile cases do not go to the core of the Supreme Court’s agenda. The core is epitomized by Brown v. Board of Education on the one hand, representing an aggressive and interventionist attitude toward government discrimination against discrete minorities, and footnote four of the Carolene Products case, on the other hand, representing an extraordinarily deference to the political process with respect to economic regulation. The Rehnquist Court’s commitment to this core agenda is not dramatically different than that of its predecessors, at least not when the broad sweep of constitutional law is taken into account. Until quite recently, the debate about constitutional law has been dominated by the question of which rights or classes should receive the special constitutional protections of strict judicial scrutiny. These were not the issues that most deeply concerned the Framers of the Constitution. Instead, the Framers were overwhelmingly concerned with matters of government structure: separation of powers (by which I mean both that governmental powers should be separated and that they should be related to one another through checks and balances) and federalism. Separation of powers and federalism form the fundamental matrix of Euclidean plane of our constitutional law. These issues dominated the minds of the Framers at least as fully and completely as questions of individual rights dominate contemporary constitutional thought. Individual rights, to be sure, were important to the Anti-Federalists as well as the Federalists, and the Bill of Rights was adopted so soon after the Constitution’s ratification that it would not be inappropriate to deem it part of the founding period. Yet the Framers of the Constitution believed that a bill of rights, while not necessarily dangerous, was largely superfluous because liberties were sufficiently protected under the structural scheme of the original Constitution. In suggesting that individual liberties have dominated twentieth-century jurisprudence, I do not mean to imply that structural issues have been ignored completely. Matters of government structure have always played an important role in constitutional thought and on the Supreme Court’s docket; they continued to do so even during the modern period. The Court, in a variety of contexts has adjusted the rights of state and national government under the rubric of “Our Federalism.” It visited questions of separation of powers in cases such as Myers, Humphrey’s Executor, Steel Seizure, and the like. Yet this undercurrent of constitutional adjudication and thought was long eclipsed by the burgeoning importance of civil rights. Recently, however, structural issues have again begun to emerge at the forefront of constitutional debate. Concerns about federalism were galvanized by the Court’s recognition, in National League of Cities v. Usery, of a state immunity from federal intrusion in matters of traditional state responsibility. Although the Court later abandoned this approach in Garcia, the genie of federalism was loosed. Partly in consequence, a number of modern scholars have begun to rethinking the fundamental questions of federalism from the standpoint of modern economic and political theory. Questions of separation of powers have also reappeared: the Supreme Court’s decision in United States v. Nixon initiated a remarkable and sustained line of important precedents adjusting the rights of the legislative, executive, and judicial branches. The renewed judicial recognition of separation of powers has been mirrored at the scholarly level by a number of attempts to sort out and define the content of separation of powers as a doctrine of constitutional law. These efforts, while in my judgment not entirely successful, suggest that separation of powers, like federalism, is returning to a central and appropriate place in American constitutional thought. The renewed importance of structural considerations raises questions about the relationship, in modern constitutional law and constitutional theory, between our two great systems of fundamental law: the system of rights (including individual rights and economic liberties) and the system of government structure (including separation of powers and federalism). For these systems obviously do not operate in hermetically sealed compartments. We should expect, on the contrary, that any fully satisfactory theory of constitutional law would offer insights about the relationship between structure and rights as well as, more fundamentally, provide an account that explains, justifies, and articulates both systems. A basic challenge of modern constitutional law, in other words is to develop a Grand Unified Theory that would explain both the system of rights and that of structure as manifestations of deeper underlying principles. This challenge is enormously daunting, and not one that can be even remotely handled in the scope of a paper such as this. Nevertheless, I want to offer some preliminary and tentative observations that might at least identify some of the broad elements to be included in the Grand Unified Theory. To this end, I first suggest the utility of cross-fertilization between the two systems. The focus on liberty which dominates the analysis of individual rights can usefully be brought to bear on questions of government structure – not as an immediate criterion for decision, but as an end against which the constitutional means of government structure should be tested and evaluated. At the same time, the focus on allocation of powers to defined organs of government which dominates the analysis of government structure can fruitfully be applied to the area of civil rights. In the case of the Bill of Rights (although not necessarily in the case of the Reconstruction amendments, which I do not discuss in this paper), the analysis of constitutional rights should be informed b the understanding that the first ten amendments are not only a denial of power to the federal government, but functionally and effectively are a grant of power to the Supreme Court at the expense of the other branches of the national government. I then attempt to probe deeper by asking what elements might be included in a unified theory. One quite appealing version of a unified theory is already available in the form of the Federalist Papers. The brilliantly synoptic constitutional theory it proposes can, with minor adjustments, be used as a basis for both the system of government structure and that of civil rights. The key concepts here are energy and faction. The Constitution is based on the premise that the government will have sufficient power and authority to fulfill its assigned responsibilities. Accordingly, it is appropriate to ask in any constitutional case whether a proposed resolution leaves the national government with the requisite energy. As to faction, the overriding concern of the Federalist Papers is that a group in the populace might gain control of the government and use the government’s monopoly on force to repress other citizens or expropriate their wealth. It is, accordingly, entirely appropriate in constitutional analysis to ask whether the governmental structure or action at issue can be challenged as facilitating faction or justified as deterring faction. I suggest that these principles of energy and faction might usefully be applied to the analysis of issues arising both under the system of individual rights and that of government structure.
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The Jury and Consensus Government in Mid-Eighteenth-Century America
William E. Nelson
Courts were vital to mid-eighteenth-century colonial government, for that government, unlike our own, had no ubiquitous bureaucracy with clear chains of command reaching upward to central political authorities. Because there was no modern bureaucracy, the judiciary and the officials responsible to it (e.g., sheriffs) were the primary link between a colony's central government and its outlying localities. The judiciary alone could coerce individuals by punishing crimes and imposing money judgments. In some colonies, such as Virginia, the judiciary was virtually the whole official government, but even in colonies where other officials were available, the nonexistence of doctrines of official immunity rendered those officials subject to judicial control. As one of John Marshall's contemporaries observed, “[o]ther departments of the Government” may have been “more splendid,” but only the “courts of justice [came] home to every man's habitation.” The vital role of the courts in colonial government did not, however, mean that government performed only functions which we today would classify as judicial. Colonial government regulated its subjects' lives in pervasive detail; government in the Age of Mercantilism sought to insure not only the physical and economic but the moral and social well-being of its subjects. The courts, as a vital part of the government, maintained order, protected life and property, apportioned and collected taxes, supervised the construction and maintenance of highways, issued licenses, and regulated licensees' businesses. Through administration of the settlement law, which permitted localities to exclude undesired newcomers, and the poor law, which made localities liable for the support and hence the general wellbeing of all who were born and raised in a locality and all newcomers who were not excluded, the legal system fostered community self-definition and a sense of community responsibility for inhabitants. Indeed, in some colonies, the courts of general sessions of the peace, which possessed basic criminal, administrative, and some minor forms of civil jurisdiction, also performed the executive and even the legislative functions of local government. The work of the courts, in sum, was of an undifferentiated, pervasive character. The undifferentiated character of that work was important for present purposes because it obscured distinctions between legislation, administration, and adjudication drawn by political theorists. Despite Montesquieu's early statement of the modern doctrine of separation of powers, Americans as late as the 1780s generally regarded the courts as part of the executive and did not routinely distinguish the judiciary as an independent branch which exercised only judicial functions: they did not, that is, distinguish law from politics. As one tract observed, “Government is generally distinguished into three parts, Executive, Legislative and Judicial, but this is more a distinction of words than things. . . . [H]owever we may refine and define, there is no more than two powers in any government, viz., the power is only a branch of the executive, the CHIEF of every country being the first magistrate.” The pervasive character of the courts' work was important because it placed the courts, which are today at the periphery of governmental activity, at the core instead. It insured that men like John Marshall who learned the ways of government in the Revolutionary era would be familiar with the manner in which courts functioned. And it requires, if we are to understand the background and training of the generation of the Founding Fathers, that we too study the workings of mid-eighteenth-century courts and of their most important agency, the jury.
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Human Rights, Public Health, and the Idea of Moral Plague
David A. J. Richards
It is a distinctive feature of Western ethics and law that the best standards of argument in both areas are cultivated by self-critical methodologies of historiography, empirical science, and ethical reflection. We insistently reflect on the history of our ethics and law, and think of such reflection as part of a larger process of cultural self-criticism through which we identify those strands of our tradition worth preserving and elaborating (for example, respect for the essential liberties of free people committed to democratic processes under the rule of law) and those strands that we now reject (for example, slavery and the subjection of women). At the center of this self-critical enterprise is a creative tension between its affirmative and negative components, for we often best understand the point of our most enduring values when we see how they often flourished in uncritical tension with our gravest moral corruptions and political failures. We may better understand, for example, liberty of conscience as an ethical and legal value when we see how Augustine, on the one hand, offered a philosophical psychology supportive of freedom of conscience as an ultimate value and, on the other hand, defended a theory of persecution quite inconsistent with such freedom; our constitutional tradition’s rejections of Augustine’s theory of persecution is thus understood as a self-critical rejection of a corruptive moral argument that undermined a defensible ethical and legal ideal. Correspondingly, we may better grasp or own ethical and political responsibilities now if we can frame our central contemporary dilemmas by critical reflection that both constructively elaborates the central principles of ethics and law at stake and exposes our recurrent temptations to moral corruption for what they are. There is no more fruitful topic for such inquiry than the dilemmas surrounding the AIDS health crisis, including our very temptation to frame the discourse in the historical terms of the social response to plagues. I will, in the course of this essay, offer reasons to reject such terms of discourse precisely because its motivation, the idea of a moral plague, is not merely an outmoded myth but, in Susan Sontag’s sense, an obfuscating metaphor of illness false to fact and ideologically freighted with moral and political corruption; it is morally and politically irresponsible, so I shall argue, to give any weight to this pernicious conceptual anachronism in contemporary circumstances. There are genuine dilemmas that surround response to the AIDS health crisis, but the idea of moral plague is not one of them. Rather, the irrational political force that the idea enjoys conflicts with the principles that should govern these issues. It is fundamental to our dilemma that our legitimate public-health concerns for control of a deadly virus center in the United States on the populations at highest risk and that these populations, on independent ethical and/or legal grounds, increasingly call upon our concern against abusive state authority. I focus in my discussion here on homosexuals and their rights to both privacy and antidiscrimination because the level of ethical and constitutional argument I fairly well advance, albeit yet unsuccessful at the highest judicial level. But comparable arguments could fairly be developed both for IV drug users and the racial and ethnic minorities that constitute many of those users. We need a clear understanding of human rights and to what extent homosexuals’ claim to such rights are just in order to frame the corresponding issues of public health.
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Reconsidering Miranda and the Fifth Amendment
Stephen J. Schulhofer
Few decisions of the Warren Court have attracted as much attention and as much controversy as its 1966 ruling in Miranda v. Arizona. Miranda relied upon the Fifth Amendment privilege against compulsory self-incrimination to impose limits on custodial police interrogation. The Court was vilified for “handcuffing the police” and for “favoring the criminal forces over the peace forces" in this country. Recently the Miranda decision has become the focus of renewed debate. Critics argue not only that the Miranda decision was legally incorrect and socially unwise but also that the Court stepped far outside its proper adjudicatory function and engaged in an illegitimate act of legislation. These claims of illegitimacy are fueled by the elaborate, rulelike character of Miranda requirements. Attorney General Edwin Meese, for example, attacked Miranda for “its prescription of a detailed, code-like set of rules for police conduct—the sort of rules more properly devised by the legislative or executive branches of government.” Because the Court stepped beyond the appropriate limits of the judicial function, these critics assert, Miranda should be overruled. Talk about overruling Miranda ignores the fact that Miranda contains not just one holding but a series of complex and important interpretations of the Fifth Amendment. One could subdivide them in various ways, but three important and conceptually distinct steps were involved in the Court's decision. First, the Court held that informal pressure to speak—that is, pressure not backed by legal process or any formal sanction—can constitute compulsion within the meaning of the Fifth Amendment. Second, Miranda held that this element of informal compulsion can be satisfied by any questioning of a suspect in custody, no matter how short the period of questioning may be. Third, Miranda held that a series of precisely specified warnings is required to dispel the compelling pressure of custodial police interrogation. The third step, the series of particularized warnings, poses some obvious problems of legitimacy. But the core of Miranda is located in the first two steps. I want to begin by considering these first two holdings in depth. The Court's first holding was that compulsion, within the meaning of the Fifth Amendment, can include informal pressure to speak. Note first that there is not the slightest doubt about the legitimacy of the Court's settling this question by adjudication. The Fifth Amendment says that no person shall be “compelled” to be a witness against himself. According to one school of thought, this word referred only to formal legal compulsion. It is a normal act of judicial interpretation for a court to consider the meaning of the word “compelled” and to decide whether it extends to informal pressures. A much more important problem is to determine whether the Court's decision on this point was correct on the merits. In Bram v. United States, decided in 1897, the Court had relied on the Fifth Amendment to suppress a statement made in the course of a brief custodial interrogation, but Bram was repudiated shortly afterwards, and for the next sixty years the Court frequently and consistently held that the Fifth Amendment privilege was inapplicable to police interrogation. Because the suspect was under no legal obligation to speak, the argument ran, there was no compulsion in the relevant Fifth Amendment sense of the term. Confessions obtained by “breaking the suspect's will” were called involuntary and held inadmissible under the due process clause, which was conceived as a distinct and more flexible constitutional restraint. In rejecting this view and holding the Fifth Amendment applicable to informal compulsion, Miranda undoubtedly departed from a long line of precedent. Nonetheless, this first step in the Miranda analysis was the appropriate interpretation of the constitutional command. Although the early history of the privilege is clouded and ambiguous, it seems clear that the privilege was intended primarily to bar pretrial examination by magistrates, the only form of pretrial interrogation known at the time. The reasons for concern about that form of interrogation under formal process apply with even greater force to questioning under compelling informal pressures. As Professor Edmund Morgan showed almost forty years ago, “The function which the police have assumed in interrogating the accused is exactly that of the early committing magistrates, and the opportunities for imposition and abuse are fraught with much greater danger. . . . Investigation by the police is not judicial, but when it consists of an examination of the accused, it is quite as much an official proceeding as the early English preliminary examination before a magistrate, and it has none of the safeguards of a judicial proceeding.” Other leading experts on the law of evidence concur in Morgan's assessment. Thus, Professor John McNaughton, writing almost thirty years ago, noted that virtually all the policies underlying the Fifth Amendment privilege “apply with full force to insure that police in informal interrogations not have the right to compel self-incriminatory answers. . . . Answers should not be compelled by police.”
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Recent Developments in the Field of Liability for Hazardous Wastes under CERCLA and Natural Resource Damages in the United States
Richard B. Stewart
The Comprehensive Environmental Response, Compensation and Liability Act of 1980, known as CERCLA or the Superfund statute, is the United States law authorizing the government to sue for the costs of cleaning up sites on land or in water where hazardous substances have been released. This statute contains a stringent liability scheme forcing polluters to perform or fund the cleanup of such substances. Liability under CERCLA for cleanup is strict, and defences to liability are few and narrow. Those liable include owners and operators of lands or facilities from which releases have occurred, those transporting wastes to such sites, and generators of wastes that are disposed there. Cleanup liability does not depend on proof of actual harm. It is enough that a release of toxic substances occurred or is threatened. Moreover, a generator or transporter of toxic wastes disposed of at a side may be liable even if it cannot be shown that the toxic chemicals from a facility were precisely the same as those taken to the site. Unless those responsible for different wastes at a site can show that the harm caused or threatened by their wastes is divisible and distinct, each responsible party is jointly and severally liable for the entire cleanup. Accordingly, CERCLA cleanup is far broader than private law tort liability. Since CERLCA’s enactment ten years ago the government has pursued remediation and concomitant protection of human health as the first priority. The Justice Department, on behalf of the Environmental Protection Agency, has initiated hundreds of suits to recover the costs of government cleanup sites or to force cleanup by the responsible parties. In the past year, the Environmental Division of the United States Department of Justice initiated 151 new actions and received more than $1.1 billion in cost recovery and cleanup under CERCLA and related statutes. In addition, CERCLA authorizes natural resource damage actions. These are suits by federal and state governments seeking compensation on behalf of the public for damage to natural resources owned or managed by such governments, when such damage has been caused by release of hazardous wastes. CERCLA requires that funds recovered in these suits be applied to restore or replace the damaged natural resources. The Oil Pollution Act of 1990 creates a similar system authorizing governmental claims for resource damage caused by oil spilled into inland or coastal waters, expanding the earlier system of liability established by the Clean Water Act. Only recently has the federal government initiated a substantial number of suits seeking compensation for damaged natural resources under CERCLA. An array of formidable questions surrounds these suits. Foremost among these is whether CERCLA’s stringent cost recovery rules or traditional private law tort principles, or some other set of liability rules applies to natural resource damages claims based on releases of hazardous wastes of oil spills.
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Regulatory Law
Richard B. Stewart
The law’s response to the environmental, health, and safety risks of genetically engineered products and processes reflects society’s ambitions and aspirations, but also it fears and doubts. Genetic engineering based on selective breeding is an ancient practice. Techniques of genetic engineering at the cellular level were developed during the past century. Recombinant DNA and other new techniques developed during the past two decades have greatly enhanced the poser and precision of genetic engineering by enabling genetic selection and transfer to be performed at the molecular level. The old and new techniques, collected under the label biotechnology, offer great health, environmental, and economic benefits. But they also potentially present three categories of adverse effects. The most direct, first-order risks are potential adverse impacts of bioengineered organisms of humans, plants, animals, and ecological systems through pathogenic injury or environmental disruption and displacement. For example, a bioengineered organism introduced in order to assist the growth of a crop on a given plot might migrate and harm natural ecosystems or other crops on adjacent land. Broader, second-order risks consist of adverse economic, social, and political transformations that may result from the application of powerful new agricultural or human genetic applications. For example, bioengineered crops might alter economies of scale, favoring large farms over small farms or vice versa. These transformations may in turn lead to indirect, third-order environmental effects. The development of bioengineered herbicide-resistant crops might encourage greater use of chemical herbicides, for example, causing ecological damage, or biotechnology might encourage excessive reliance on a few crop strains, reducing genetic diversity and increasing the vulnerability of agriculture to blights. The most nebulous but potentially most profound third-order effects are changes in our conceptions of ourselves and of nature resulting from the wide-scale exercise of new and powerful techniques to alter the characteristics of humans and other organisms. Some fear that the enhance powers conferred by new genetic engineering techniques might result in widespread displacement of existing species by man-made organisms, undermining our conceptions of wilderness and nature and fueling human hubris. Fears that human genetic applications of molecular engineering will be abused or will destroy our understanding of human individuality can engender hostility to all applications of molecular engineering. The law’s present response to biotechnology may seem paradoxical. Organisms created by the new molecular techniques are regulated far more stringently than organisms produced by the older techniques, even though there is no evidence that the risks posed by the new group are greater. Moreover, genetically engineered products, which thus far have not caused any known damage to human health or the environment, are regulated more stringently than documented hazards such as air pollutions. Several factors explain this paradox. Cultural attitudes and institutional forces tend to produce more restrictive legal controls on new technologies than on established one. Also, legal controls on technology respond not only to scientific evidence but also to popular perceptions of risk. Public attitudes toward the environmental, health, and safety risks of molecular engineering are ambivalent and often fearful. Such attitudes may be explained in part by a risk-averse stance toward the uncertainty posed by any new technology. Because molecular engineering is such a new technology, both the problem of uncertainty and the law’s difficulty in coping with it are especially great. Public attitudes about the risks of molecular engineering are also influenced by concern over second- and third-order consequences of its widespread use. Although such consequences are not the stated object of the regulatory laws dealing with biotechnology, which are limited to first-order environmental, health, and safety risks, these broader concerns exert a powerful gravitational influence on the law’s operation.
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“Private War”: The Problem of Access
Diane L. Zimmerman
Contrary to the preferred platitudes, war is as likely to defeat as to create a sense of public unity. The recent experience of the United States in Vietnam is but one example of the phenomenon. A government, faced on the one hand with the exigencies of battle and on the other with the disruptive threat of dissidence, is easily tempted by the possibility that a resort to regulation of speech and press will foster the desired climate of public support. American history, despite laws protecting free speech, is rife with instances of such attempts at control. During the Civil War, thousands of civilians were imprisoned by Union military authorities for protesting against the draft and voicing opposition to the goals and conduct of the war. Newspapers were also closed down on several occasions for rhetoric deemed harmful to the national interest. General Burnside, for example, suspended publication of the Chicago Times in 1864; the paper was suppressed for three days until President Lincoln countermanded the order. World War I presented further similar temptations. The Espionage Act of 1917, and equivalent statutes passed by the various states, led to a flurry of prosecutions for “inconvenient” speech—including such alarming silliness as finding it criminal to criticize the Red Cross. Modern First Amendment theory, which imposes strict limits on the power of government to prevent or to punish the speech of even its most outrageous critics, had its genesis in the regulatory excesses of that period in American history. Direct censorship is a serious interference with the timing and form in which information is revealed. But it offers the faint consolation that the censored material will not be lost forever; eventually, opinions and reports which have been suppressed or altered may filter out in their original forms into the stream of public debate. But a second form of control to which governments may resort during times of national emergency does not even offer that mild solace because it is designed to cut off the access of the press and the public to the basic sources of the information. This variant of the speech regulation problem surfaced recently in the United States during the brief war on the Caribbean island of Grenada.
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Legal Issues
José E. Alvarez
An annual publication of the United Nations Association of the United States of America.
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Race
Kwame Anthony Appiah
An introduction to the work of literary theory—giving tens of thousands of students an unparalleled encounter with what it means to do theory and criticism. Each essay adopts the approach that has won this book such widespread acclaim: each provides a concise history of a literary term, critically explores the issues and questions the term raises, and then puts theory into practice by showing the reading strategies the term permits. Exploring the concepts that shape the way we read, the essays combine to provide an extraordinary introduction to the work of literature and literary study, as the nation’s most distinguished scholars put the tools of critical practice vividly to use.
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Racisms
Kwame Anthony Appiah
Through a systematic attack upon the politics of language, categories, and concepts informing racist practice, Anatomy of Racism examines the nature of racism conceptually and historically to unveil its chameleonic and parasitic character as evidenced in the body of scientific and philosophical, socio-political and legal, and cultural expression.
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Tax Reform: Implications for the State-Local Public Sector
Paul N. Courant and Daniel L. Rubinfeld
The Tax Reform Act of 1986 should provide valuable information which will allow economists to distinguish among competing models of determinants of state and local spending and taxes. This paper outlines the implications of current public finance theory and empirical work for the direction and (where possible) likely magnitudes of the effects of the tax bill after it is fully in effect in 1988. We analyze separately the effects of the bill on the level and distribution of state and local spending, and on the mix of revenue sources employed by the state and local governments. The effects of the tax reform in this area will be fairly small; we expect state and local spending to fall by between 0.9 percent and 1.9 percent, with the lower end of the range the more plausible. A reduction in the number of itemizers – taxpayers who will be unable to deduct their state and local income and property taxes – will account for about half of this change. The elimination of sales tax deductibility, which also makes citizens pay more for state and local government, accounts for slightly more than a third of the decrease in spending. Finally, reductions in marginal tax rates, which make the deductions for income and property taxes worth less to taxpayers who continue to itemize, accounts for the rest. Moreover, states will probably shift away from sales taxes toward deductible sources of revenue, thereby making the effect of the tax reform on state spending smaller still. The conclusion that aggregate spending is unlikely to change very much does not imply that the Tax Reform Act is unimportant to the state and local public sector. The fiscal and economic circumstances of state and local governments vary enormously, and the federal tax reform will therefore affect them very differently. Local governments with relatively large numbers of high income homeowners can be expected to reduce their expenditures substantially and to expand their reliance on user charges. The relative fiscal attractiveness of localities within metropolitan areas will be altered, leading to changes in population distribution and house values, and increasing the incentives for higher income households to segregate themselves from lower income households. From both an efficiency and an equity perspective, these effects on local governments are likely to be much more important than the aggregate effect on either state or local spending. The Tax Reform Act has the immediate effect of changing state revenues; most states will enjoy an increase at current rates, while some will lose revenue. Over the longer run, apart from the obvious incentive to move away from the non-deductible sales tax to other deductible taxes, the effect of tax reform on the mix of revenue instruments is difficult to predict. The new tax bill also has major implications for bond financing: it limits the use of the tax-exempt bond instruments (since industrial development bonds have been cut back and regulations regarding the use of tax-exempt bonds generally have been tightened), and may also change the relative attractiveness of the instrument in financial markets.
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Procedure for the Resolution of Price-Anderson Claims
Rochelle C. Dreyfuss
Congress directed the Commission to consider whether cases arising under the Act should be managed administratively or judicially and to develop procedures for handling claims. This chapter responds to that direction and proposes a plan for deciding Price- Anderson cases that the Commission believes is equitable and efficient, that will enjoy a high degree of public acceptance, that will keep transaction costs low, and that bases recovery on the best medical and scientific information available. The Commission began its deliberations by examining a hypothetical large nuclear occurrence giving rise to significant numbers of cases, involving substantial issues. It then identified the areas that would, under any compensation system procedure, require attention. These are: provision for emergency payments, initiation of suits (filing and registration issues), consolidation of cases (venue and choice of law issues), generic determinations (use of scientific expertise), resolution of individual actions, determination of compensation for nonpecuniary injuries, and resolution of punitive damage claims. Focusing on this list, the Commission next reviewed the experience that the tort system has encountered in mass accident cases. It found that although the current legal rules have been shown to be flexible, judicial disposition of large-scale cases has been costly and protracted. Furthermore, the techniques that have worked in the past may be less available in the Price-Anderson context than they have been in others. For example, while the class action has often proved to be a valuable tool for settling mass accident cases, this device may be of limited use here. Many nuclear claims will be large in relation to the transaction costs of proceeding individually. At least for those accidents declared to be ENOs, technically complex and expensive proof of causation and fault will not be required. Furthermore, the interim payment features of the statute provide relief to parties while they pursue their rights. Accordingly, these claimants may not need to pool their resources by joining a class. By the same token, because the Act was designed to remove fears of insolvency, bankruptcy—another avenue by which several mass torts have been resolved—may likewise be unavailing. Nonetheless, based on the testimony presented, the Commission reasoned that a judicial approach to the Act is likely to enjoy greater credibility and public acceptance than an administrative model. Accordingly, it developed a procedure for distributing Price-Anderson funds that utilizes some of the efficiency and cost-containing features of administrative adjudication, but placed it within a judicial framework. This chapter is in three sections. The first describes the distribution plan recommended by the Commission and the amendments to the Act required for its implementation. This section should be read in conjunction with the second, which describes the alternative procedures considered and the reasons underlying the choices made. The third section proceeds from a different perspective; under the assumption that the Act might not be amended, it traces the extent to which the Commission's plan could be implemented under existing law.
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Takings: Of Maginot Lines and Constitutional Compromises
Richard A. Epstein
The central task of constitutional law is to demarcate the scope of individual freedom within a system of government power. The very existence of an articulated constitution suggests that some form of social control, coercive and unwanted by some, is permissible. But any showing that some government power is permissible is only a prelude to determining its permissible extent. One important element in a system of social control is the doctrine of enumerated powers, which has been effectively eviscerated by the expansive interpretations of the commerce clause. The second is the specific protection of certain liberties against the state. In my book Takings, I argued that given these limitations in our Constitution, the scope of government power, both at the state and the federal level, is far narrower than has been traditionally believed. I also insisted that this restrictive conception of government also follows from the first principles of political theory. In making these dual claims, I have been rightly understood as having asserted that the Constitution forbids the common forms of legislation, regulation, and taxation which comprehensively have come to be known as the New Deal. Notwithstanding the bitter denunciations that the book has received, both for its constitutional and political theory, I continue to believe that the proper set of social relations are essentially as they were described in Takings. It seems evident, however, that my position has not carried the day. Indeed it may be a minority position held by one person—me. Nonetheless, it continues to attract a fair share of attention, and I hope that it has caused serious scholars to reexamine old verities in search of newer and better understandings. The three essays by Professors Lino A. Graglia, Stephen Macedo, and Frank Michelman are part of the ongoing commentary that Takings has generated. My task here is not to restate anew my basic position; Macedo and Michelman have provided the reader with a careful road map of my theory in their contributions to this volume. Instead, I shall content myself with answering their major criticisms of my position. First, I shall address Graglia's roundhouse attack on my book; Graglia erects a Maginot line against political theory, which, once overrun, excludes him from any important debate over the structure and meaning of our Constitution. Thereafter, I shall turn to the more restrained criticisms of Macedo and Michelman, both of whom insist that my position on the takings clause is flawed because it unnecessarily downgrades the republican commitment to citizen participation in the search for the common good. I shall first try to establish that my own constitutional position preserves what is good about republican institutions. I shall then offer to Michelman, and for that matter to Macedo, a constitutional compromise, which (for all I know) they might accept. But first I must respond to Graglia.
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Strikers and Replacements: Introductory Comment
Samuel Estreicher
Operating with permanent replacements during a strike is not a new phenomenon. As the recent Greyhound strike so palpably reminds us, much of the labor violence that has occurred in our labor history is an outgrowth of the hiring of replacement workers. Until the 1980s, however, the use of replacements was a marginal feature of the industrial relations scene. Such activity was largely confined to areas or industries where unions were not established. Thus, Charles Perry and his colleagues at the Wharton School, in their 1982 empirical study on Operating During Strikes, reported that employers in established bargaining relationships generally avoided use of replacements. These employers either found it too difficult to obtain qualified workers from outside or feared that the tactic would prolong the strike and leave them with an embittered workforce. Perhaps stimulated by President Reagan's handling of the PATCO strike, employer practices appear to be changing. Permanent replacements were hired in the strikes at Hormel, TWA, AT&T, Boise Cascade, Continental, Pittston and, most recently, Greyhound, to name a few examples. In some cases, the use of permanent replacements has resulted in the effective decertification of the striking union. Organized labor and its friends in Congress have declared a determination to outlaw the use of permanent replacements (or "scabs" in labor parlance). Companion bills—H.R. 3936, introduced by Representative Bill Clay of Missouri and S. 2112, introduced by Senator Metzenbaum of Ohio—would prohibit both the hiring of permanent replacements as well as the granting of any employment preference to an individual because he or she agreed to work during a strike. Staff counsel for the House labor subcommittee tells me that the bills now have 120 cosponsors. Hearings have begun. It is too early to say whether the bills in their present form will pass. Legislative change of some sort may well be in the offing. The controversy over permanent replacements raises a number of questions or paradoxes which, among others, will be the subject of today's roundtable.
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Information and the Electoral Process
John A. Ferejohn
Nothing strikes the student of public opinion and democracy more forcefully than the paucity of information most people possess about politics. Decades of behavioral research have shown that most people know little about their elected officeholders, less about their opponents, and virtually nothing about the public issues that occupy officials from Washington to city hall. Those attitudes they express to interviewers are usually ephemeral and transient. In what sense, then, can the policies of any government be said to reflect the will of the governed when that will cannot even be said to exist
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Institutional Biases in the Legal System's Risk Assessments
Clayton P. Gillette
We tend to envision the legal system, particularly its adjudicative component, as a mechanism for redressing a variety of injuries to which persons are susceptible. Persons who engage in negligent conduct, manufacturers who produce defective goods, even those whose behavior is socially desirable and thus escape the opprobrium of “fault,” may be held accountable when their activity causes harm to others. Nevertheless, we do not rely on legal accountability to remedy all the slings and arrows of life. Those who suffer the hazards of growing old, of natural disaster, of genetic defects, find little relief in the law. In short, the legal system-at least at first glance—seemingly has little to say about “natural” as opposed to human-caused or technological hazards that pervade society. This appears quite appropriate, given the pragmatic limitation that the legal system functions only when there is an entity subject to its adjudicative or regulatory mandate. Natural forces simply fall outside the realm of those who can be held accountable. On reflection, however, this dichotomy between the natural and the technological seems too simplistic. For when technology intervenes to reduce the probability or consequences of natural disaster, we subject those using the technology to high standards of care, notwithstanding that we might be worse off had they never intervened at all. Thus, those who enhance the quality of life by constructing dams to restrain flood waters, manufacturing vaccines that stave off lethal disease, or generating power without which we would be at the mercy of the elements, may find themselves subject to legal sanctions should their risk-reducing measures occasionally go awry. That those who reduce the consequences of natural hazards are held responsible for their injury-producing activity suggests more than a social desire to compensate the injured. That objective would be accomplished by a social welfare scheme, void of the time and expense of a tort or regulatory system. The pervasiveness of the legal system suggests that society has additional concerns for the ways in which we minimize the total quantum of risk. Intervention by the legal system indicates a belief that legal rules can serve as incentives for socially desirable behavior. Thus, we can employ legal rules that induce private risk creators to serve as surrogates for the rest of us in determining the optimal level of natural and technological risk. Ideally, the adjudicative component of the legal system—imposition of liability on risk creators—accomplishes this objective by imposing on injurers the costs of harm they cause. This process forces risk creators to internalize all the consequences of their conduct and thus induces them to compare social costs with the personal benefits of any activity. Presumably, only when the latter exceed the former will a prospective injurer engage in a risky activity. Thus, even the most self-interested actor is persuaded to consider the interests of others in deciding whether to generate a given level of risk. Similarly, the regulatory component of the legal system signals regulated groups that certain risks will not be tolerated or must be taken only under tightly controlled circumstances, enforced through the threat of fine or revocation of license necessary to continue in the risky business. This is not to say that we seek some utopian “riskless” world. To the contrary, legal doctrines, such as torts and nuisance, that permit redress of noncontractual harm largely permit exceptions to liability where the injurer has acted “reasonably”—a term often understood as action that, while risky, confers sufficient benefit to justify the risk. Even under modern concepts of “strict” liability for defective products, evolving principles of law require that the product be “unreasonably” dangerous before injurers are required to compensate victims. Thus, products that impose harm on occasional victims but confer benefits on a substantially larger population may not bear the costs of the injuries they cause, at least if the victim is deemed to have been adequately warned of the risk. The theory that assigns the enforcement of this internalization process to the legal system is best explained by basic economics. If society seeks an optimal level of risk, we must have both a forum for assessment and a class of parties interested in using that forum. If potential victims of technological risk are given “rights” (e.g., a right not to have their property polluted or a right not to be subjected to contraceptive devices that induce infection) and a mechanism for redress of infringement of those rights (e.g., the courts), then those injured have incentives to make viable claims that the technologies that injured them were not worth the risk. In short, the adjudicative component of the legal system provides the necessary incentives for victims to act as private attorneys-general for the rest of us in the debate about acceptable risk.
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