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  Legal Liability for Medical Innovation

  Richard A. Epstein

  Many of the major issues of health care today revolve about two familiar questions to students of tort and regulation. What are the proper institutional arrangements to minimize the level of risk associated with the delivery of products and services, and what level of compensation, if any, should be provided to those persons who are injured when the remaining risks materialize in losses? These questions are especially difficult in cases of medical innovation, where both risks and rewards are frequently great. The enormous complexity of issues is revealed by the range of institutional responses. Deterrence and compensation can be approached under the tort law, specifically through suits for medical malpractice and products liability. They can be handled by various forms of direct legislative and administrative overview, from Food and Drug Administration control over drugs to institutional review boards in local hospitals and medical centers. They also can be handled by private contracts amongst the various parties. Each system of controls works in a different way. The tort remedies tend to operate by indirection: there is no direct supervision over the behavior of the various parties, who (it is hoped) nonetheless are induced to perform properly by the threat of damage actions. The administrative controls, adopted in part out of the fear that some defendants may prove insolvent or some harms (death, serious disabilities) will prove irreparable, represent direct public controls that deploy a mixture of fines, inspections, licensing, and approvals to prevent most losses from occurring. The private contractual element is designed to preserve for patients and consumers some measure of autonomy and choice, at least within the constraints of tort and direct regulation. The hardest problems arise over the mix of remedies. I will start with the tort approach to these questions, specifically medical malpractice and products liability, and then consider how regulation complements or substitutes for it. Although I refer to the issue from time to time, I do not stress an argument that I have made elsewhere, which is that contractual solutions for all the flaws are better than the regulatory and tort alternatives that are so much in vogue today. Instead, I want to address the various methods for the public control of medical innovation, and indeed medical practice generally. That inquiry begins with a discussion of the connections between medical malpractice and products liability law; thereafter, it addresses the integration of tort remedies with direct public control. One central theme is that more need not be merrier. Throughout this essay I want to stress the importance of the coordination between the tort and the regulatory sides of the issue, and to emphasize the great benefits that follow from the adoption of clear rules to handle complex problems. Much of what I have to say is a plea for a return to safe harbors, whether by custom or by statute, for new therapies or products introduced into the marketplace. The sheer number of concrete situations influenced by possible private actions makes it imperative that there be some known and observable standard to guide parties who must act under the applicable legal rules. The present system tends to offer injured persons repeated bites at the apple, wherein it is commonplace to examine medical or manufacturing practices under different standards, first in administrative and then in judicial settings. In my view the duplication of supervision is the source of conflict, cost, and contradiction, all of which should be controlled to help medical innovation, indeed medical treatment, proceed on rational lines. This essay is organized as follows. The first section argues that the rules of product liability and medical malpractice should be understood as an integrated whole: that is, they are best understood if their interactions with each other are taken into account. The second section then examines the way in which these rules should be applied to three distinct contexts: routine cases and known risks, experimental treatment, and routine treatment that reveals an unknowable risk. In each case the key objective of the liability system is to insure the proper transmission of information. Where the information to be transmitted is standardized in form, an official, uniform determination of its adequacy should be made before it is disseminated, not afterwards. As in so many areas of law, the greatest mistake in the current liability rules is their excess of ambition. Certain major risks can be controlled at low price, but in the effort to endow the system with a certainty that it cannot possess, the limited, but vital, gains that are possible are systematically undone. The best again becomes the enemy of the good.

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  The Morals and Technique of Medical Innovation

  Richard A. Epstein

  Medical innovation is here with us to stay. So too are its ethical and technical issues. No one would take the line that all innovation should cease because some innovation has unfortunate side effects. No one would take the line that all -medical resources should be devoted to innovative research. The routine treatment of routine cases often reflects the successful innovation of prior generations. Low-cost care that provides quick and certain relief provides the welcome payoff of the sound investments of a previous generation. It is therefore possible to rule out these two extremes quickly. Having said that the hard work has only begun, what should the sound middle position be? To use an analogy, we are quite confident that the optimal level of taxation is neither 0 nor 100 percent. The range of possible rates and tax structures that satisfy these dual constraints defines the problem, not the solution. A similar problem exists with medical innovation. The decision to go forward with medical research in a bounded way also defines a problem, not a solution.

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  The Uncertain Quest for Welfare Rights

  Richard A. Epstein

  The growth of government is an oft-told tale, and nowhere is that growth more pronounced than in the expansion of government transfers of money, goods, and services to persons in need. These transfers rest on the presupposition that all individuals have a right to personal welfare. This asserted welfare right is typically defined as the right to receive "any form of assistance—monetary payment, good, or service—provided to an individual because of his or her need." The definition does not resolve in all concrete cases. It is often difficult to determine in individual cases whether a payment is a pure transfer payment, as opposed to compensation for services rendered, or a payment under a scheme of social insurance, in which the transferee has previously paid market value for the benefits received. These questions of classification, while important, should not be allowed to conceal the historical trend. Today, transfer payments encompass a large array of programs, including aid for dependent children, food stamps, medicaid, jobs, and housing allowances, and have become a staple of American life. In the short run it is possible to detect decreases in the level of government transfer payments, as some of the Reagan administration's cuts since 1981 reflect. But the long-run growth of government transfer programs of all sizes and descriptions remains one of the major developments of the post-World War II period.

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  The Structure of Agency Decision Processes

  John A. Ferejohn

  First published in 1987, Congress: Structure and Policy is a review of congressional research from an institutional perspective. The selections blend theoretical material found in the fields of discussion theory, political economy, social choice and game theory, with classics on such standard topics as elections and campaigning, controlling the bureaucracy and oversight, norms of behaviour, committees and committee assignments reform, budgeting, presidential influence, and the party and its leadership. Together, these readings present an institutional theory of Congress. They are integrated in order to address both the short-run issue of how congressional institutions shape policy and the long-run question of why congressional organization has evolved the way it has. In their introductions to the chapters, the editors, Professors McCubbins and Sullivan, not only address the themes of the individual readings but place the chapters in the larger context of the political economy.

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  Waivers and Pre-Hearing Detention

  Martin Guggenheim

  My observations will well complement those of Jerome Miller. It becomes useful in the discussion of prediction to consider one's ultimate goal. The ultimate goal pursued by both Miller and me is reducing the unnecessarily high number of juveniles incarcerated each year in the United States. The theme of both Miller's paper and mine, therefore, is that too many juveniles are deprived of their liberty for no good reason. The reader who disagrees with my conclusion at least now knows my biases. Moreover, I do believe the reader will agree with my premises: if in fact the millions of dollars we spend per year depriving juveniles of their liberty do not reduce the crime rate, we should reconsider what we are doing. If the millions of dollars we spend per year depriving youths of their liberty actually increases the crime rate, a dramatic claim, to be sure, but one of Miller's themes, that reconsideration should occur immediately. My paper first describes briefly the rhetorical underpinnings of juvenile justice in the United States. It then provides some facts concerning pretrial detention which complement Donna Hamparian's study and other research concerning juveniles and career criminality alluded to in this Volume.

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  Litigating for Equality of Political Opportunity

  Samuel Issacharoff

  Amid the conservatism of an increasingly Reagan-appointed judiciary, voting rights litigation has distinguished itself as a field of civil rights law in which the plaintiffs' relative position has been strengthened dramatically in the past five years. By an irony of circumstance, the year of President Reagan's election, 1980, marked the nadir of the struggle for equality of political opportunity. The Supreme Court's decision in City of Mobile v. Bolden had cast the Fifteenth Amendment and the substantive protections of Section 2 of the Voting Rights Act into the formidable mold of Washington v. Davis and its evidentiary requirement of proof of discriminatory intent. During the Reagan presidency, however, and despite the resistence of an obdurately hostile Administration, the 1982 Amendments to the Voting Rights Act and the 1986 decision of the Supreme Court in Thornburg v. Gingles decisively enhanced the prospects of minority litigants. Part of the resilience of voting rights claims undoubtedly stems from the centrality of the franchise in the order of political freedoms. Recognized a century ago as “protective of all other rights,” the ballot continues to receive accolades as the “crown jewel” of our liberties. The protection of voting claims also conforms to a conservative standard of judicial intervention restricted to the remedy of “process distortions” that impede the ability of political institutions to redress perceived societal ills. Thus, voting rights claims offer some prospect of opening up the political system to minority grievances, thereby relieving pressure on the judiciary as the sole forum for claims of discrimination. This article outlines the recent evolution of voting rights jurisprudence and the renewed capacity of racial and ethnic minorities to press claims that may indeed force a greater accountability of and responsiveness from political institutions. After all, who sits on that recalcitrant school board that continually opposes desegregation efforts—and how were they elected? Or, how is the Housing Authority, which continually implements plans that exacerbate segregation, elected and composed?

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  Justiciability, Remedies, and the Burger Court

  Burt Neuborne

  Discussion of the Burger Court's seventy-odd decisions on “justiciability” issues—such as who has enough of an interest in the outcome of a case (“standing”) to invoke a federal court's power, and when the court should hear a case—has taken place at a very high level, if you measure it in decibels. Critics have characterized the decisions as cynical attempts to close the courthouse doors to those trying to enforce their constitutional rights. Defenders have hailed them as a welcome return to a principled vision of a restrained judiciary in a functioning democracy. In fact, the Burger Court's decisions on who can get into federal court and when are neither blueprints for majoritarian oppression nor expressions of judicial principle. Rather, they reflect a fundamental void in American political theory concerning the legitimacy and function of judicial review. There is nothing in our Constitution that explicitly authorizes courts to overrule other branches of government—state or federal—in the name of enforcing fidelity to the Constitution. Despite the fact that judicial review is the most distinctive and widely admired aspect of our political structure, we are two hundred years into the American experiment and we still haven't evolved a convincing theoretical explanation of where the Supreme Court's power comes from and how it should be used. When judicial review is discussed, we've tended to heed Bismarck's warning that lovers of sausages and law alike should not look too closely at what goes into the product. The orthodox apologia for judicial review flows from John Marshall's brilliant attempt to establish his power to torment President Jefferson in 1803. In Marbury v. Madison, Marshall projected the image of a Supreme Court justice as reluctant arbiter, an innocent bystander charged by Congress with responsibility for resolving controversies, but confronted by disputatious litigants asserting conflicting rules of law. When, Marshall argued, one proposed governing rule of law is established by the Constitution, while its competition is merely the creature of Congress or the President, the Court's duty must be to apply the constitutional rule as a matter of hierarchy. Judicial review, according to Marshall, is simply the accidental byproduct of a judge's duty to select the governing rule of law in order to resolve a dispute between litigants. Moreover, according to Marshall, a judge has no real choice in the matter, since, in resolving the dispute the judge merely plays out a hand dealt by someone else—Congress tells the judge to resolve the dispute and the Constitution supplies the governing rule of law. Marshall's opinion in Marbury shrewdly stressed those relatively rare provisions of the Constitution that are self-defining, like the requirement of two witnesses for a treason conviction. He carefully skirted the troublesome problems of how to deal with ambiguous constitutional phrases like “due process of law” and “privileges and immunities of citizenship” and, even, “abridgement of the freedom of speech.” Nothing in Marshall's opinion in Marbury explains why the Supreme Court's reading of the Constitution should take precedence over a contrary reading by Congress whenever a constitutional provision invites more than one plausible construction. Thus, while Marshall's elaborate apologia for judicial review in Marbury provides a formal justification for the phenomenon, it has never provided an intellectually satisfactory explanation of the reality inherent in virtually all constitutional adjudication, including Marbury itself, in which judges first breathe meaning into an open-textured provision of the Constitution and then enforce that meaning against the other branches of government. We have been willing to accept the Marbury explanation, even to lionize it, without looking too closely at its warts because judicial review has become so integral a part of our political structure and has worked so well as a check on majoritarian overreaching that any theory purporting to explain the process, even one as flawed as Marshall's, is preferable to no theory at all. When, however, judicial review is analyzed functionally rather than formalistically, every element of the Marbury explanation, which treats judges as passive figures forced by circumstances beyond their control to overturn the decisions of Congress as a necessary and essentially mechanical incident of a duty to resolve a dispute, breaks down. Nothing in the last one hundred years justifies painting Supreme Court justices as passive figures engaged in the mechanical process of playing out someone else's hand. Rather, American judges have creatively helped to determine the relationship between the individual and the state in ways that simply cannot be explained by reference to John Marshall's defense of judicial review. Instead of being passive figures, they have repeatedly played active roles in setting the national agenda. Instead of behaving like mechanistic robots, they have made law by choosing among a number of plausible readings of ambiguous constitutional phrases. Instead of acting solely, or even principally, as dispute resolvers, American judges, especially at the appellate level, have acted primarily as generators of behavioral norms for society at large.

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  The Economics of the Local Public Sector

  Daniel L. Rubinfeld

  This chapter discusses the demand side of the public sector and focuses on normative rather than positive models. The political economy of the local public sector has been studied by both political scientists and economists, but efforts to combine the two have had limited success. The addition of supply-side-political assumptions to Tiebout models has led largely to negative conclusions about the existence and efficiency of the local public competitive analogy. The Tiebout model has provided one useful, albeit somewhat artificial, model of a more or less competitive local public sector. However, the value and usefulness of the Tiebout model is likely to diminish in the future, and an alternative or alternatives are needed. Several monopoly models of local government have been suggested to provide a useful counterpart to the Tiebout approach. Public goods are viewed as brands that differ in one or more of the attributes. The extent to which local governments compete among themselves in the supply of the public good becomes issues that are studied using modern techniques of industrial organization. Local public economics is a subject area that is rich with empirical work, but a good deal of high quality work remains to be undertaken. The relationship between the mobility of households and the provision of local public services is one area that typifies work in local public finance. A well-specified and correctly estimated model helps to evaluate the correct method by which the demands for local public goods are determined.

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  Locke, John

  Jeremy Waldron

  Encompassing the whole spectrum of the history and theory of politics from Socrates to Rawls, this is the most comprehensive and scholarly reference work available on the subject. The 350 entries, written by a team of 120 international specialists, are a balanced blend of full-length survey articles and shorter definitions. Key concepts in political thought are defined and analyzed, and ideologies are considered in relation both to historical context and to contemporary politics. All articles are cross-referenced and indexed.

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  Rights

  Jeremy Waldron

  The term is used in three main ways in political philosophy: (1) to describe a type of institutional arrangement in which interests are guaranteed legal protection, choices are guaranteed legal effect or good and opportunities are provided to individuals on a guaranteed basis. (2) to express the justified demand that such institutional arrangements should be set up, maintained and respected. (3) to characterize a particular sort of justification for this demand, viz. a fundamental moral principle that accords importance to certain basic individual values such as equality, autonomy, or moral agency.

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  Truth Conditions: A Causal Theory

  Kwame Anthony Appiah

  This is a collection of eleven original essays in analytical philosophy by British and American philosophers, centering on the connection between mind and language. Two themes predominate: how it is that thoughts and sentences can represent the world; and what having a thought—a belief, for instance—involves. Developing from these themes are the questions: what does having a belief require of the believer, and of the way he or she relates to the environment? In particular, does having a belief require speaking a language? The volume concludes the informal series stemming from the meetings sponsored by the Thyssen Foundation. It will interest analytical philosophers, students doing courses in philosophy of mind within the analytical tradition and philosophically interested researchers in cognitive psychology.

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  Logrolling in an Institutional Context: A Case Study of Food Stamp Legislation

  John A. Ferejohn

  The food stamps program is often cited as an example of logrolling between proponents of two unconnected policies. Allegedly, representatives agricultural districts, facing increasing getting their commodities programs enacted, saw food stamps as an opportunity to obtain support by advancing a program that would serve urban districts. On their side, urban congressmen, who were having difficulty getting welfare programs through the conservatively led Congress of the late agreed to support farm legislation in exchange for a food stamps program. As we will see there is abundant anecdotal evidence for this account. Congressmen of all descriptions seem to agree that “deals” were struck at various critical points of the legislative process and, indeed, that the political foundation for the two programs rests squarely on an explicit alliance between urban and rural Democrats. Thus, the logrolling hypothesis appears not only as a plausible theory but also as a true account. Recent advances in the theory of collective choice appear to cast some doubt on the adequacy of this account of the foundations of the food stamps program. Logrolling relationships are inherently unstable: if a logroll is required to enact some set of bills, then there can be no package of bills that could win a majority against every other package. Thus, while a logrolling arrangement may, because of the procedural rules of the chamber, allow some package of bills to pass in a given session, there will always be other packages of bills preferred to it by a majority. Thus, to say of some particular piece of legislation that “it passed because of a logroll” is no explanation at all. Many alternative outcomes must have been equally possible, and the logrolling hypothesis cannot explain why none of these occurred.

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  Japan's Antitrust Policy: Impact on Import Competition

  Harry First

  The thesis of this chapter is that the failure of Japan's Fair Trade Commission to more vigorously enforce Japan's Antimonopoly Act has adversely affected the ability of imports to compete effectively in Japan. This policy of inaction is government policy. Just like tariffs or targeting, it deserves the attention of those interested in opening Japan's markets to U.S. firms as fully as U.S. markets are open to Japanese firms. This chapter is divided into four parts. The first part presents background information about Japan's Antimonopoly Act and the position of an antitrust system in Japan's economy. The second focuses on the most obvious area in which antitrust enforcement has not been adequate—the joint refusal of domestic Japanese firms to deal with imports. The third touches on some other areas in which more vigorous Fair Trade Commission (FTC) activity could increase import competition. The chapter concludes with two suggestions for bringing about changes in Antimonopoly Act enforcement.

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  The Protection of Fundamental Human Rights as a Vehicle of Integration

  Jochen Arb. Frowein, Stephen J. Schulhofer, and Martin Shapiro

  When independent political entities, or states, undertake to create some sort of closer union—be it a confederation, federation, or supranational community—a process of integration is set in motion. This process will vary in duration depending on its ultimate goal, which may itself change during the process. Experience seems to show that the question of common values protected by the legal system cannot be avoided if the process of integration is to continue towards the creation of a union to which all citizens feel a common allegiance. In the United States, we recall, a civil war was fought over what was basically a human rights issue: the question whether there could be different positions on slavery in the various states of the union. In Europe, of course, no civil war as such has been fought over purely human rights questions, but the violations of fundamental human rights in the last two World Wars did help lead Europeans to realize the need to commit themselves to a declaration of fundamental values which all European nations should aspire to protect. Fundamental human rights can express a common set of minimum standards below which human rights conditions must not fall anywhere in the developing union of states. This presupposes, of course, the condition that these rights bind all public authorities in the union, for only then will fundamental rights have a clear unifying and integrating impact. It is one of the dominant themes of this chapter, however, that the application of uniform standards protecting fundamental rights to all public authorities (local, state and federal) may be a goal attained only after a long and difficult process of legal and historical development. In the United States, we will see, the Supreme Court did not issue any important opinion in the area of freedom of speech until 1919; it did not even hint that the free speech standards it was elaborating for the Federal Government might be binding on the states until 1925; and it did not really begin to apply such standards to the states until 1931, sixty-three years after the adoption of the fourteenth amendment. Similarly, in the field of criminal procedure, the Supreme Court reviewed only a handful of important state cases prior to World War I, and began to develop a significant jurisprudence only after 1936. It is another of the themes of this chapter that throughout the course of the integrative process, the level of applicable minimum human rights standards may vary considerably, from time to time, from place to place, and from one class of rights to another. In our primary example, the United States, the national minimum standard for freedom of speech on political matters in public places is high, although some states place their own standards even higher. Where arguably obscene speech is involved, however, the national minimum standard has waivered. Before 1957 there was no such standard. In that year a low minimum standard was introduced. By 1964 the standard had crept up to so high a level that little or no discretion was left to the individual states, which were left free to bar only the most blatantly pornographic materials. Then in 1973 the federal standard was lowered somewhat to allow states to prosecute a slightly broader category of obscene material if they wished to. It is interesting to note in this regard that a number of different minimum standards may even exist simultaneously in the same area of law. Thus the U.S. federal minimum speech protection standard in the area of libel is high where speech about a public official is involved, but lower where speech concerns a private citizen. In Europe, similar fluctuations in attitudes toward human rights protection can be detected. Germany, one of the earliest European experiments in unification, provides us with comparable examples. The first attempt to introduce a federal Bill of Rights in Germany was in 1848, when the draft Constitution adopted by the Paulskirche Parliament following the 1848 Revolution included a catalogue of fundamental rights, made with the clear intention of unifying particular human rights conditions in the different German states. But the failure of the Revolution also meant the end of the 1848 Constitution and of its famous Bill of Rights. The two succeeding federal constitutions—the Constitution of the North German Confederation of 1867 and of the Reich of 1871--contained no Bill of Rights, despite the strong demands of some liberal depu- ties from those states which offered he least protection of rights under their state constitutions—such as the two Mecklenburgs—that such federal guarantees be introduced. The main justification for such non-inclusion was clearly the desire to protect the individual states of the union against the far-reaching changes in their internal systems which would have been brought about by a federal Bill of Rights, for although most states had their own constitutional Bill of Rights, by the mid-nineteenth century the level of protection and the legal remedies available varied greatly from state to state. Despite the lack of a federal constitutional Bill of Rights, however, several important federal statutes adopted between 1867 and 1874—concerning the free movement of persons, access to industrial activities, and the freedoms of religion and of the press—soon created a subconstitutional system of federal guarantees for fundamental freedoms. It is worth mentioning that the extension of protections to the freedom of movement, as well as to the right to settle and undertake industrial activities under the same conditions in all the states of the federation, was a step very similar to the one taken by the Member States of the EEC when they adopted the Rome Treaty. From 1919 to 1933, and particularly after 1949, the protection of fundamental rights in the German federal system was assured through a Federal Constitutional Bill of Rights binding federal as well as state organs.

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  Fourteenth Amendment (Framing)

  William E. Nelson

  The Fourteenth Amendment to the United States Constitution consists of a variety of provisions addressed to several problems that arose when the Civil War and the abolition of slavery transformed the American political order. One sentence—“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”—has become the text upon which most twentieth-century constitutional law is a gloss. But this sentence may not have been the most important part of the amendment as it was conceived by its framers, adopted by Congress, and ratified by the states between 1865 and 1868. The sentence was addressed most pointedly to one of the lesser problems that Congress faced in the winter of 1865-1866. During that winter congressional legislation protecting the civil rights of former slaves had been vetoed by President Andrew Johnson in part, he contended, because the Constitution entrusted the protection of civil rights to the states. The Republican proponents of the Civil Rights Act of 1866 mustered the necessary two-thirds vote to override the veto, but doubt remained about the power of the federal government to protect civil rights. The quoted sentence in section 1 of the Fourteenth Amendment was written, at least in part, to resolve that doubt. Another concern of some Northerners in the winter of 1865-1866 was that some future Congress might repudiate the debt that the federal government had amassed during the Civil War or might undertake to pay the Confederate debt or compensate former slaveholders for the loss of their slaves. Section 4 of the amendment guaranteed the national debt, prohibited the payment of the Confederate debt, and barred compensation to slaveholders. However, the most urgent task that the Thirty-ninth Congress confronted when it began its first session in December 1865 was to establish governments in the South that would be loyal to the Union and send loyal representatives to Congress. The problem was compounded by the ratification of the Thirteenth Amendment, which not only abolished slavery but also put an end to the original Constitution's three-fifths clause. With the abolition of slavery, the former slaves would be fully counted as part of the population of the former Confederate states; as a result those states would have more power in Congress and the Electoral College than they had had before the Civil War. Something had to be done to insure that the war did not increase the political power of the disloyal groups that had brought the war about. Three solutions were advanced to prevent those who had lost the Civil War from enhancing their power as a result of it. One was to confer the franchise on Southern blacks, whose votes were expected to bring about the election of loyal candidates. A second solution was to deny political rights—both the right to vote and the right to hold office—to some or all who had participated in the rebellion against national authority. This scheme would increase the number of districts in which Union loyalists had a majority or at least some power to tip the electoral balance in favor of loyal candidates. A third solution was to alter the basis of representation: to base a state's number of representatives in the House and hence its votes in the Electoral College not on total population but on the number of people eligible to vote. Thus, if a state excluded blacks from the right to vote, they would not be counted in determining its representation in Congress and its vote in the Electoral College. Thus the abolition of slavery and the end of the three-fifths compromise would reduce Southern political power in Congress unless Southern states gave blacks the right to vote and hence a share in that power. The Joint Committee on Reconstruction, established by concurrent resolutions of the House and Senate in the opening days of the Congress, sought to put the possible solutions into some sort of order. Four members of this fifteen-man committee were most prominent in its activities: John A. Bingham and Thaddeus Stevens from the House and William Pitt Fessenden and Jacob M. Howard from the Senate.

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  Blackmun, Harry A. (1908— )

  Burt Neuborne

  Nothing in Harry A. Blackmun's background presaged that within three years of his appointment he would write the most controversial Supreme Court opinion of his time—Roe v. Wade (1972)—providing significant constitutional protection to women and their doctors in the area of abortion. . . . Blackmun's commitment to a jurisprudence of just deserts is reflected in three characteristic motifs that pervade his opinions. First, he is openly mistrustful of rigidly doctrinaire analyses that force him into unfair or unreasonable resolutions of cases. In rejecting the Court's two-tier equal protection analysis in favor of a more “flexible” doctrine, or expressing skepticism about prophylactic exclusionary rules in the criminal process, or searching for a federalism compromise based more on pragmatism than on theory, or rejecting automatic use of the overbreadth doctrine in First Amendment cases, Justice Blackmun refuses to allow doctrine to force him into dispute resolutions that seem intuitively unfair or that give an unjust windfall to one of the parties before the Court. Second, his opinions are fact-oriented, canvassing both = adjudicative and legislative facts in an attempt to place the dispute before the Court in a realistic context. In his more recent opinions, he frequently scolds the Court for slighting a case's factual context, often complaining that the Court's desire to announce law has taken it beyond the actual dispute before the Court. Finally, he insists upon results that accord with his view of the “real” world. His decisions have tended to support efforts to undo the consequences of racial discrimination and have demonstrated an increasing empathy for the plight of the powerless, while demonstrating little sympathy for lawbreakers. Such a personal vision of “reality” must ultimately inject a dose of subjectivism into the decision-making process. Yet Justice Blackmun's qualities of mind and heart serve to remind the Court that a doctrinaire, intellectualized jurisprudence needs to be balanced by a jurisprudence grounded in intuitive fairness to the parties, human warmth, and pragmatic realism.

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  Freedom of Expression in the United States — A Case Study in Implied Limitations on Textually Absolute Constitutional Rights

  Burt Neuborne

  Section 1 of the Canadian Charter of Rights and Freedoms has been characterized as an invitation to judicial timidity in enforcing the rights guaranteed by the Charter against majoritarian overreaching. It is certainly true that, taken literally, section 1 contains the seeds of the Charter's evisceration, since it is generally possible to construct a post hoc “reasonable” basis for limits on most exercises of constitutionally protected rights by controversial and politically unpopular persons. If every “reasonable” exercise of government authority may “limit” the exercise of a fundamental freedom, the Charter's protection will extend to only two categories of governmental action—action taken in bad faith and action which is irrational. One hardly requires an elaborate Charter of Rights and Freedoms to guard against bad faith or irrational governmental action. A short form constitution of no more than one or two sentences would more than suffice. If the American experience is any guide, however, section 1 need not reduce the Charter to a series of precatory admonitions. I believe that section 1 may—and should—be read as the candid recognition of a truth that, if not explicitly articulated in the text of the American Bill of Rights, is, nevertheless, widely acknowledged by courts and commentators - the fact that in a complex “free and democratic society”, virtually no individual right or freedom can be absolute. Rather than pronouncing absolute “rights”, I believe that a written guarantee of rights in a modern democracy describes a series of activities deemed fundamental to the society and, therefore, immune from governmental interference in the absence of a showing of extraordinary public necessity. My thesis is that most, perhaps all, “rights” as they are described in a modern democratic Charter are less expressions of absolute substantive immunity than the articulation of carefully constructed procedural protections that compel the political majority to persuade an insulated arbiter- usually a judge—that a genuine social necessity requires government action in derogation of the value. Properly applied, the net result of the process should be a dramatic societal deflection of error in favor of the protected value, without loss of the flexibility needed to maintain an ordered society. The degree of error deflection in favor of the fundamental value and the processes by which judges decide whether and how to evaluate government assertions of necessity are the nerve-ends of most constitutional litigation, even when the litigation purports to revolve about a so-called textually absolute right such as free speech in the American system. Thus, far from lamenting section 1 of the Canadian Charter, I applaud it as an invitation, not to judicial timidity, but to judicial candor; for, by focusing public attention on the process by which the inevitable existence of some “limits” on rights must be “justified” in a constitutional democracy, the Charter forces into the open a process that often occurs sub rosa in the United States. In both systems, the ultimate protection of free speech will depend far more on the wisdom and ingenuity of judges in deflecting error in favor of free speech by requiring the political majority to demonstrate a genuine necessity for regulation than on the assertion of a spurious "absolute" right. Section 1 merely urges Canadian judges to be more open in describing the process than their American colleagues. I propose to sketch the degree to which courts in the United States have been forced by the intrinsic complexity of modern democratic life to engraft precisely those “limits” described in section 1 of the Charter onto the textually absolute free speech guarantee contained in the First Amendment, often by the use of questionable thought processes. I believe that, if section 1 did not exist, Canadian judges, like their American counterparts, would have to invent it—probably in less palatable form. At first glance, the First Amendment to the United States Constitution is a poor candidate for any limitations at all. The Founders chose to use absolute language which appears to preclude any attempt to abridge speech. There is, however, an embarrassing weakness in any attempt to read the First Amendment literally—it purports to bind only the Congress - not the President; and it purports to apply only to the federal government—not the states. Indeed, for the first one hundred and thirty years, the Supreme Court read the First Amendment as placing restrictions solely on the federal government. With the advent of the “incorporation” theory, however, the Supreme Court has given the language of the First Amendment a non-literal reading that applies its strictures to state and local governments through the linguistic magic of the Due Process clause of the Fourteenth Amendment, which has been read as '”incorporating” most provisions of the Bill of Rights. Moreover, without benefit of even the dubious linguistic crutch provided by the Due Process clause, the modem Supreme Court has read the First Amendment as applying to the Executive as well as Legislative Branch. As an advocate of broad free speech protection, if asked to choose between a literal reading of the First Amendment that imposed an absolute ban on Congress, but provided no check against the Executive or the states, and a non-literal application of the clause that provided substantial—but not absolute—protection against all levels and branches of government, I would unhesitatingly choose the latter.

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  Litigation Strategy

  Burt Neuborne

  Litigation strategy in constitutional cases is shaped by a single animating principle—a desire to increase the likelihood that a black-robed bureaucrat called a judge will act on behalf of a politically vulnerable applicant to alter or set aside the act of a popularly accountable official. Although the degree of tension that exists between democratic political theory and constitutional litigation varies widely depending on the nature of the case and the attributes of the forum—a police brutality case litigated before an elected state judge poses no threat to democratic decision making; an equal protection challenge to an act of Congress argued before an appointed, life-tenured, federal judge poses a more direct conflict—constitutional cases generally involve persons who are unable to secure redress through more conventional appeals to the political process. Litigation strategy in constitutional cases is designed to increase the potential that a judicial forum will rule in favor of such politically disfavored plaintiffs. Sustained constitutional litigation in the United States has involved many sets of litigants, including abolitionists versus slaveholders in the period prior to the Civil War; radical reconstructionists versus southern revisionists in the period immediately following the Civil War; business corporations versus populist reformers during the first third of the twentieth century; and civil libertarians versus majoritarians during the modern era. Although the political goals of the participants have varied widely, the strategic choices of the contestants have remained remarkably stable, involving five areas: choice of forum; selection of parties; articulation of theories of recovery; choice of tactics; and articulation of antidemocratic apologia. Choice of forum is the most important strategic decision for a constitutional litigator. In choosing a forum, a constitutional litigator must choose between state and federal court; between a judge and jury; and sometimes between one judge and another. The outcome of many, if not most, constitutional cases turns as much on the wisdom of those strategic choices as on the intrinsic merits of the cases. Because a constitutional plaintiff is generally seeking to trump a decision that enjoys the imprimatur of democratic decision making, the institutional capacity of the forum to render sustained anti- (or, at least, counter-) majoritarian doctrine is critical to the success of any constitutional litigation campaign. Judges who are themselves elected by the political majority or who are otherwise closely tied to the political process are least likely to enunciate sustained countermajoritarian doctrine. Judges who enjoy maximum political insulation are, on the other hand, in a position to ignore the short term political consequences of their unpopular decisions. It would, for example, have been impossible for elected judges to have effectively enforced the fugitive slave clause in the pre-Civil War North on behalf of southern slaveholders, or the equal protection clause in the post-World War II South on behalf of black schoolchildren seeking an integrated education. The search for an insulated judge in constitutional cases has generally led politically vulnerable plaintiffs—whether slaveholders, business corporations, or civil rights activists—to seek a federal judicial forum, for federal judges are appointed and enjoy life tenure. Much of the procedural infighting that characterizes constitutional litigation revolves around attempts by plaintiffs to force claims into insulated federal forums and by defendants to deflect them to more politically accountable state courts. The search for an insulated forum has led many constitutional litigators to view juries with suspicion. Not surprisingly, a principal litigation strategy of the abolitionist bar was to choreograph disputes about alleged fugitive slaves before free state juries in the hope that juries would decline to enforce the Fugitive Slave Act. Modern civil rights lawyers have experienced analogous difficulty in persuading juries to return verdicts in favor of unpalatable plaintiffs whose rights may have been violated by a popularly responsible official. Finally, the choice of forum involves a decision about the identity of the judge or, in less polite terms judge-shopping. The identity of the judge in a constitutional case is extremely important for two reasons one obvious and one less well understood. The obvious reason for judge-shopping involves the judge's politics. Because constitutional cases often turn on a clash of values and because the urgency with which a judge views a constitutional case may well depend on his or her view of the relative importance of the conflicting values, the same case may be decided differently by equally competent judges with differing value systems.

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  Soyinka and the Philosophy of Culture

  Kwame Anthony Appiah

  Selected papers from an International Conference on African Philosophy held at the University of Ibadan, Ibadan, 15-19 February 1981, with assistance from UNESCO.

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  Constituency Service in the United States and Great Britain

  Bruce Cain, John A. Ferejohn, and Morris Fiorina

  Since its first edition, Congress Reconsidered was designed to make available the best contemporary work from leading congressional scholars in a form that is both challenging and accessible to undergraduates.

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  The Duty of Fair Representation: A View from the Bench

  Harry T. Edwards

  Conference papers on the state of case law and standards of trade union responsibility as regards fair representation in arbitration and grievance processing, USA—discusses inter-connected problems of jurisdiction, judicial procedure, Supreme Court pre-emptions, labour administration decision, etc. Resulting in general chaos and calling for law reform.

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  Agency Costs, Employment Contracts, and Labor Unions

  Richard A. Epstein

  The division of labor is a common feature of modern social institutions. By coordinated activities, transacting parties can realize gains that exceed those obtained first by working independently and then by trading finished products to discrete market transaction. The inexorable voluntary movement to complex organizations is itself powerful evidence of large organizations may be regarded as socially inevitable, their precise form is not, for a great deal of freedom remains in structuring their internal operation with a view of minimizing the relevant costs. This paper examines one kind of costs: the agency costs that arise because firms must operate through individuals who act as agents for others, rather than on their own account. Its central focus is labor markets. By way of background, the first section of the paper offers some brief introductory remarks about the problem of agency costs as applied to other contracting contexts. Thereafter the agency cost question is examined in three separate labor market environments: first, unregulated markets without any coordinated behavior between workers; second, unregulated markets in which coordination between workers is both allowed and feasible; and third, markets under the National Labor Relations Act, with its systems of collective bargaining through exclusive union agents.

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  Comment on Theodore J. Lowi's 'The State in Politics: The Relation Between Policy and Administration'

  John A. Ferejohn

  I am of the generation of students of political science who grew up with Lowi's maxim that policy causes politics, and I have spent a fair amount of time trying to classify policies according to various schemes proposed since Lowi's initial effort almost twenty years ago. Like many in my cohort, I found Lowi's idea attractive and the classification scheme provocative but could never really decide where to draw the lines separating the categories. Besides, the agencies that were of most interest to me (especially the older ones) always seemed to administer several different types of policy. However, Lowi's theory does seem to contain an important perspective on public policy formation, even if many of us have trouble applying this perspective.

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  Incumbency and Realignment in Congressional Elections

  John A. Ferejohn

  Covers the issue of split-level realignment of voters swinging between parties at different levels of government.

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  Domestic Priorities in Our Federal System

  John M. Quigley and Daniel L. Rubinfeld

  During the 1980 and 1984 presidential campaigns, debates about federal domestic policy have concentrated on defining the appropriate roles of the national and lower levels of government in raising revenues, in setting spending priorities, and in managing individual programs. In part, the discussion has been framed in moral and ideological terms. Largely, however, the focus has been on the relationship between federalism and economic efficiency, both allocative efficiency in the choice of levels and types of spending by public agents and private decisionmakers, and productive efficiency—the elimination of waste, fraud, and bureaucratic ineptitude. Choices made by the executive and legislative branches of government during the 1980s have substantially reduced the federal government's role as raiser of revenues and have significantly altered fiscal relations among levels of government. One major outcome of these fiscal choices has been the increasing prominence of the federal budget deficit—which, under current conditions, is both large and enduring. The need to deal with this large deficit will require Congress and the president to confront the options for making further cuts in the federal budget and more generally for reducing the scope of federal domestic activity. The magnitude of the deficit, now projected at some 5 percent of GNP for the next decade, provides special motivation for this book's examination and evaluation of the domestic portion of the federal budget, while changing federal and state fiscal relations motivate a detailed analysis of the domestic programs undertaken by federal, state, and local governments. The administration's New Federalism initiative is perhaps the best place to begin this discussion. The 1982 Reagan budget message suggested a "swap" of federal and state functions, with the federal government assuming control of Medicaid while relegating responsibility to the various states for food stamps and Aid to Families with Dependent Children (AFDC). At the same time, it was proposed that some sixty-one other federal programs in education, community development, transportation, and social services be returned to the states, with funding during the transition to be provided by a new federal trust fund. The intent of the administration's current proposals can be debated, but the discussion in this volume makes it clear that the New Federalism was motivated not by normative or efficiency notions about the appropriate locus of program responsibility but, rather, by a simpler motive—a perceived opportunity to cut the domestic federal budget. The administration had clear plans to reduce the Medicaid program once it came under federal control, and although the Reagan program involved a substantial federal (as well as state) government role, that role did not have direct budgetary consequences. Coupled with the strong stance taken by the Reagan administration on the New Federalism, the magnitude of the current budget deficit raises a number of issues of fact and interpretation: (1) Have the recent trends in the financing of programs by state-local governments and the transfer of fiscal responsibilities during the first Reagan term marked a move away from government spending, or simply a readjustment of program responsibility and financing from the federal to the state and local levels? In other words, is the new federalism simply an anti-government program, or does it represent a serious movement toward fiscal reform? (2) Should the role of the federal government in the regulation of the domestic economy be diminished? If so, should these regulatory and oversight functions be performed by lower levels of government, or should they be relegated to the private sector? (3) If domestic programs are to be further restructured in the interests of economic efficiency, how should that restructuring take place? If program changes are to be made, what opportunities for savings in federal budgetary dollars will arise? These and related issues have appeared and reappeared in the preceding chapters. In this brief concluding chapter we highlight some of what we have learned and add our own interpretation. We examine critically the notion of fiscal federalism and investigate reforms that would be consistent with federalist principles and would save budgetary dollars. A budgetary perspective on federal programs is a good starting point. Table 14.1 presents the 1983 federal domestic budget broken down by program area. Social security, by far the largest of the income security programs, is currently financed by a trust fund and raises a host of separate questions. In addition, specific campaign promises by President Reagan make it less likely that social security will be reevaluated during the president's second term. Given the domestic focus of our discussion, we ignore expenditures on national defense and consider net interest and veterans' payments to be "uncontrollables" (even though there are current proposals to cut back Veterans Administration health benefits). It is important to note that of the total federal budget of $820 billion, $216 billion goes to defense, space, and international affairs and $245 billion to social insurance. Net interest amounts to about $94 billion, and veterans' benefits to $26 billion. As a result, our scope for evaluation—the domestic portion of the federal budget not involving social security, veterans' benefits, and interest—totals approximately $239 billion.