Faculty Chapters

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  Is There an Economic Theory to Crime?

  Stephen J. Schulhofer

  Professor Klevorick's interesting and instructive chapter directs our attention to two important questions. First, is the vast economic literature on criminal justice matters grounded in a coherent economic theory of crime? Second, does its value depend on its being so grounded? Klevorick concludes that an economic theory of crime is inherently incomplete. Such a theory must draw upon political concepts that in the nature of things cannot be derived from an economic source. Klevorick goes on to suggest that economists should enlarge their models to allow for a noneconomic concept of the social loss from crime. Klevorick's suggestion may save the economists from what is, by their own criteria, a mistake, but will it suffice to render their work more interesting or more helpful to criminal justice scholars who are not economists? His analysis seems to imply that although an economic analysis of crime can be helpful in certain ways, that kind of analysis cannot in the very nature of things speak to the most fundamental concerns of students of criminal justice. Can this really be so? Or can economic analysis be of genuine interest to criminal justice scholars? The first point to be made is that in wondering about the failure of economists to engage the main interests of criminal law scholars, Klevorick has devoted nearly all of his attention to only one side of the potential intellectual exchange. As perhaps befits an economist who is both rigorous and tactful, Klevorick has carefully probed the work of his own colleagues in economics, but has abstained from questioning whether the fundamental concerns of criminal justice scholars ought to be defined and confined in the way that they are. Criminal law scholarship is, of course, very much preoccupied with working out notions of culpability and fairness (I will have more to say about this later), but this body of scholarship is by and large not particularly concerned with questions of optimal resource allocation. Very few law teachers, I am sure, spend any time in their criminal law course talking about the relative effectiveness of automobile patrol versus foot patrol or of one officer in the car versus two. Precisely because this is perceived as “only” a question of resource allocation, it is not on their agenda. For the same reason, the relative effectiveness of increasing the certainty or increasing the severity of punishment would not normally be considered an “interesting” question; it would become interesting to the mainstream criminal justice scholar only when it involved questions of proportionality, distributive justice, and the like. But is the criminal law scholar really justified in his or her disinterest in matters of resource allocation as such? I cannot help but think that the myopia of many criminal law teachers is at least partially responsible for the failure of communication that Klevorick describes. Without ignoring the grand issues of moral culpability, legal scholars must also accept that the problem of protecting society from crime while protecting offenders from unnecessarily stringent sanctions, that is, the problem of optimal resource allocation, is central to the work they should be doing. Thus, the work and interests of many criminal justice scholars is seriously incomplete. Though I will not try to pursue this point any further here, this incompleteness needs to be borne in mind if Klevorick's criticisms of the economists are to be kept in perspective. For now I will return to the incompleteness that Klevorick finds on the economists' side and attempt to assess to what extent it impairs the value of the economic approach. This question will lead me to others because of its implication that criminal justice may differ from other areas of law, where economic analysis has engaged the interests of many legal scholars. In concluding that there cannot be a purely economic theory of crime, Klevorick has left us with a dilemma that I will formulate as I proceed.

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  Indirect Discrimination

  Jeremy Waldron

  Published as part of a conference held in the United Kingdom, Association for Legal and Social Philosophy eleventh annual conference at University College, London, 6th-8th April, 1984.

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  Making Sense of Critical Dualism

  Jeremy Waldron

  The theory called ‘critical dualism’ is one of the most important, but far from the clearest, parts of Karl Popper’s conception of the way history and the human sciences are related to morals and politics. It is a theory about the relation between the facts or factual laws which the human sciences might discover and the norms or decisions which we might adopt in the face of those facts. Norms and decisions, Popper asserts, cannot be derived from facts; no belief that a certain particular or law-like state of affairs prevails in the world can commit us logically to any decision regarding our conduct. It is for us to decide what to do with regard to any fact that we take to be the case, to alter it if it is alterable, or to oppose attempts by others to alter it.

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  An Aesthetics for the Art of Adornment in Africa

  Kwame Anthony Appiah

  In the past few decades, the traditional art of Africa has been rescued from a purely sociological reading. Although masks, stools, woven fabrics, goldweights, sculptures, body-painting, bracelets, headdresses, ceremonial staffs, household decoration—the total range, in fact, of the arts of Africa—are often usefully seen in the perspective of the social and political life of their culture, it is essential that we should also be able to make sense of them as aesthetic objects. I propose to discuss what this means, in the case of artifacts of adornment, and argue that this is a very pure case of the aesthetic, and one that resolves a tension between anthropological and art-historical approaches.

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  The Constituency Service Basis of the Personal Vote for U.S. Representative and British Members of Parliament

  Bruce E. Cain, John A. Ferejohn, and Morris P. Fiorina

  During the past decade and especially active research area has developed around the study of the advantages of incumbency in U.S. House elections. Erikson (1972), Tufte (1973), and Mayhew (1974b) first called attention to the temporal increase apparent over the course of the 1960s, and numerous succeeding scholars (Burnham, 1975; Cover, 1977; Ferejohn, 1977b; Fiorina, 1977; Hinckley, 1980a; Parker, 1980a) have theorized about the bases and the consequences of the scholarly effort has produced a reasonable understanding of the multifaceted nature of the incumbency advantage in contemporary elections, although the lack of appropriate longitudinal data hinders efforts to determine precisely what and how much has changed over time (Fiorina, 1981a).

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  Selected Problems on the Time Value of Money

  Noël B. Cunningham

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  Selected Problems on The Time Value of Money

  Noël B. Cunningham, James Halpern, and Theodore Sims

  On July 1, 1985, X Corp., a cash method, calendar year taxpayer, issues a noninterest bearing registered note in the principal amount of $1629 (000's have been omitted from all dollar amounts) due on July 1, 1990 to A, an unrelated cash method, calendar year taxpayer, for $1000. This note has an implicit rate of return (yield to maturity) of 10% compounded semi-annually. A plans to hold the note until maturity.

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  Seniority Systems in Collective Bargaining

  Harry T. Edwards

  This paper is a modest attempt to generalize about seniority systems that have been produced pursuant to collective bargaining in the private sector. although many aspects of the subject defy generalization, it is nevertheless important for any arbitor or practitioner in collective bargaining to understand the basic applications of seniority and the factors that may cause the parties to a bargaining relationship to opt in favor of one approach over another.

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  Policy Oscillation at the Labor Board: A Plea for Rulemaking

  Samuel Estreicher

  The National Labor Relations Board (NLRB) has made the labor law professor's job a nightmare. A labor law professor's dream, like that of any other serious academic, is to deal with a relatively inert body of law, to be able to read the decisions and statutes once—and only once—and then work up a fairly decent set of notes which can be used year after year, leaving time for the more worthwhile pursuits of life. This federal agency simply won't let us be. These days the BNA labor service treats us to a reversal a week by the NLRB, sometimes coupled with notice that the Board has asked a court of appeals to remand a case to it for reconsideration. How is my tennis game to improve under these circumstances? With a conservative bloc firmly in place, and the dramatic number of reversals that have come down in the little over three years since Ronald Reagan took office, it is not surprising that Board reversals, or what I call policy oscillation, have sparked public concern (at least in some quarters), or that the 37th National Conference on Labor has decided to host a panel on this topic. Numerically, policy reversals account for only a modest portion of the Board's decisional output. Their significance lies not in the numbers but in the perception of litigants and the labor relations community that the agency's rules are in perpetual flux, that litigiousness may ultimately be rewarded with a change in the law.

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  Economic Justice

  Sylvia A. Law

  The predecessor to this book, The Rights of Americans: What They Are—What They Should Be, commemorated the fiftieth anniversary of the American Civil Liberties Union. The prior years had seen an extraordinary expansion in the rights of many Americans traditionally subordinated by law and political practice, notably blacks and other racial minorities, women, and the poor. At the same time, members of and advocates for these groups saw the expansion that had taken place as seriously incomplete and gravely threatened by conservative trends in all three branches of government. The Rights of Americans reflected both of these themes. It stated a bold vision of expanding democracy and equality, captured in essays on “traditional” civil liberties such as the right to protest, associate, and publish, and on new rights related to “the essentials of life” such as housing, welfare, legal services, a habitable environment, and equal opportunities in employment and education. On the other hand, many of the essays acknowledged resistance to both traditional civil liberties and the newer equality rights. As Norman Dorsen put it in his eloquent introduction to the volume, “government at every level attempts to solve serious community and national problems by restricting the rights” of the unpopular. Opposition to, or at least doubts about, rights to economic equality were not confined to the Nixon Administration and its wealthy primary constituency. Many members of "the comfortable middle class" and the “newly secure skilled worker” had “enough of social change and judicial activism.” Today the policies of the Reagan administration and the Ninety-seventh Congress powerfully reject the legitimacy or feasibility of economic equality. Further, many liberals today see concern with economic equality as subordinate to concern with productivity and profits. Within the ACLU there has been ongoing debate as to whether to regard issues of economic justice as equivalent in importance to more traditional civil liberties. As Professor Dorsen noted, the essays on various “essentials of life” were “open to the charge of wandering from the traditionally narrow road of civil liberties to the broad avenues of social justice and economic policy.” He rejected this charge as resting on a “false dichotomy” between liberty and economic justice, observing that the effective exercise of liberty depends upon material resources and a substantial degree of economic and social equality. He said there is no need to “apologize for including among individual rights the enjoyment of minimal economic security.” Indeed, fundamental rights should include such matters as the right to useful work at a decent wage, the right to participate in workplace and community governance, as well as the rights to essential material goods and services explored in the 1971 volume. Civil libertarian ideas embody some of the grandest and most liberating visions of our individual and collective human potentiality. The rights to speak, to dissent, to develop and express independent conscience, to associate with others in communities of mutual concern, to control our bodies, all reflect a vision of ourselves and others as free, self-governing people. Further, these noble concepts about who we are directly support a deep civil libertarian commitment that each person be treated with equal concern and respect. The core social issue of our time is whether liberal civil liberties will serve values of human self-realization, community, and equality or whether these liberal rights will rather legitimate the entrenched power of bureaucratic and market institutions that deny those values. The goal of this essay is to participate in the debate about American social policy and law by focusing on one theme: that economic justice and civil liberties are not only compatible, but mutually reinforcing.

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  Bemerkungen zu Bernard Williams' Beitrag

  Thomas Nagel

  Revised papers originally presented at a meeting held at the University of Cambridge in 1981

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  The Supreme Court and the Judicial Process

  Burt Neuborne

  This book is about the state of our endangered rights on the eve of George Orwell's nightmare vision of a world without them. But a mere catalogue of endangered rights, no matter how accurately drawn or passionately defended, would provide only a snapshot of a more complex phenomenon. What we call “rights” are, after all, not concrete objects which can be made to sit still for an enduring portrait-verbal or otherwise. Rather, they are grand and ambiguous abstractions enmeshed in an institutional matrix which gives them precise articulation and provides for their enforcement against the recalcitrant. In a very real sense, all rights depend for their ultimate meaning and effect on an institutional structure calculated to provide the individual with an Archimedes' lever to invoke them. If the lever is a strong one, rights are strong as well; if the lever is weak, rights are largely illusory, whatever words may be used to describe them. Witness the hollow grandeur of the rights entombed in most totalitarian constitutions. Thus, before turning to the endangered rights themselves, we should consider the health of the principal means of articulating and enforcing individual rights in our legal structure-the uniquely American phenomenon of judicial review. Since individual rights are rarely self-defining and are never self-enforcing, any political system which claims to recognize rights must make a fundamental choice about who is to define and enforce them. The choice is between officials whose principal job it is to carry out the political desires of the electorate and a more insulated set of officials who function independently of the wishes of the politically powerful. Many societies, following Rousseau's conception of popular sovereignty and deference to majority will, have chosen to give politicians—usually legislators or administrators-the last word in deciding the scope of individual rights. We, on the other hand, have chosen to give precise meaning to the concept of individual rights by using insulated officials—usually judges—whose job it is to construe a purposefully ambiguous document called a Constitution. When de Tocqueville noted the extent to which social issues are translated into legal questions in American life, he was merely reporting the fact that our system uses courts, not legislatures, as a principal means of articulating and enforcing individual rights. Using insulated judges instead of legislators to define and enforce individual rights has one important practical advantage and one obvious theoretical drawback. On the plus side, when the issue is whether an individual possesses a right to do as he or she wishes regardless of the desires of the politically powerful, it doesn't make much functional sense to allow officials beholden to the politically powerful to decide the question. Close cases would, under such an arrangement, almost always be resolved against the individual. Allowing judges who are relatively insulated from public opinion to define the scope of individual rights is thus far more likely to result in the sustained and vigorous enunciation of such rights than a system which relegates the task to representatives of the politically powerful. On the negative side, the very effectiveness of an insulated judge as a generator of individual rights is in tension with our deeply felt respect for democratic decision making and commitment to majority rule. Of course, a good deal of the tension can be relieved by recognizing that some of what passes for majority rule in any democracy is in fact one transient minority or another which has managed to attain temporary political ascendancy. Allowing judges to check such a powerful transient minority in the name of an existing consensus concerning individual rights is hardly a serious challenge to democratic political theory. That is especially true since even federal judges appointed for life are not without a democratic imprimatur. They are generally drawn from the political world; they are appointed by the president and must be confirmed by the Senate. As between such a judge and a local police chief, is there much doubt which has the better democratic pedigree? Occasionally, however, the judiciary does trump a genuine political majority in the name of individual rights. When that happens, majority rule and judicial review may come into real conflict. But even in such situations, much of the conflict is false, since the reviewing court is generally acting on behalf of a “discrete and insular minority” that was unable to participate effectively in the democratic process in the first place.

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  Constitutional Privacy, Religious Disestablishment, and the Abortion Decisions

  David A. J. Richards

  This essay examines a problem about punishment which intersects the theory and practice of both constitutional and criminal law in the United States. It comes as no surprise to an American, though it would to citizens of other liberal democracies, that a central issue of justice in punishment—namely, the limits on the application of the criminal sanction—should take the form not only of public debate over legislative policy but of arguments of principle over the meaning of constitutional values. In this study, I explore why and how these questions properly interconnect for us, and propose a novel account within political and constitutional theory of the terms in which they should be connected. My aim in to identify and explore what I take to be the seminal injustice in American criminal law—namely, overcriminalization. It is seminal in the sense that it is the predicate on which many of the other injustices of American Criminal law depend—for example, the abuse of discretion, wasteful and often barbarous use of police and prison resources, the distortion of the dignity of criminal justice by the prejudices of race, class, gender, and the like. If we could become clearer in our collective understanding of this seminal injustice, we could redirect the forms and scope of the criminal sanction to their properly limited and humane purposes and deal with other national problems in ways more sensible and more consistent with both social justice and respect for human rights. I address this subject through the prism of intellectual focus on two interconnected puzzles at the core of contemporary political and constitutional controversy: first, the status and provenance of the elaborations by the Supreme Court of the constitutional right to privacy; and second, the application of that right to abortion in Roe v. Wade, the failure of its application to consensual adult sexuality by the Supreme Court, its application thereto by state supreme courts, and other controverted issues. After addressing the various perspectives that may justify these developments, I shall urge the fertility of a mode of analysis, neither deeply addressed in the philosophical or legal literature nor coherently developed by the judiciary. The analysis involves a philosophical interpretation of the moral value of respect for persons. The right to this respect is central to the reasonable elaboration of the values of the religion clauses of the First Amendment. My objective is to urge the utility and promise of fundamental philosophical and historical work in support of the further elaboration of this mode of analysis.

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  Entering the Workforce

  Paulette M. Caldwell

  This chapter focuses on the unique aspects of the hiring process, which includes the formation of the applicant pool, selection from the applicant pool, and initial job placement. Persons seeking to attack, defend, or structure a company's hiring procedures normally engage in a three-step analysis: First, they compare the racial/ethnic/sexual makeup of the qualified applicant pool to the makeup of those actually hired. If, for any protected group, there is a substantial disparity between the percentage in the qualified applicant pool and the percentage hired, an inference of discrimination in hiring may, in the absence of unusual circumstances, be drawn. Second, a substantial disparity between the composition of the qualified applicant pool and the relevant labor market may create an inference of discrimination in recruitment. Third is a consideration of disparity in the treatment of those actually hired. This may be obvious, such as placement of protected groups in lower paying, less desirable jobs, or it may be more subtle, such as placement of protected groups in initial assignments which, though seemingly comparable, have a chain of progression which is a relative dead end.

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  Public Employee Market Power and the Level of Government Spending

  Paul N. Courant, Edward M. Gramlich, and Daniel L. Rubinfeld

  Recent budgetary rhetoric emanating from Washington and other governmental capitals suggests a growing fear that public spending is getting out of control. For long periods of time the government budget has grown more rapidly than GNP in most mixed economies, and observers of these trends have begun to realize that if this process continues, public expenditures will approach very high shares of GNP and income tax rates could get close to unity. These scare stories are counteracted by the simple question that if government gets too large, why can’t voters band together to stop its growth? Rational, informed, democratic voting processes should provide a limit to the size of the public sector; indeed they should insure that the public sector is just as large as the voters want it to be. According to what economists have come to know as the “median voter” theory, it is puzzling to know exactly how government spending could ever get too high or out of control. There have been several attempts to explain the apparent anomaly. The major focus of previous efforts has been on some aspect of bureaucratic aggrandizement, either broadly or narrowly construed. William Niskanen (1971), for example, presents a model in which bureaucracies desire to obtain as large a budget as possible for the bureau in which they are employed. (See also his 1975 paper.) Despite competition from other bureaus, the sized of the overall governmental budget is larger than socially optimal because the nature of the budget process allows bureaus to act as price-discriminating revenue maximizers. Their ability to use their market power is constrained, both by competition from other bureaus and by the preferences of relevant legislative committees. As is implicit in the title of his work, Bureaucracy and Representative Government, Niskanen’s major concern is with the way in which the institutions of representative government (particularly the U.S. federal government) may lead to overprovision of public services. The model is not directly relevant to the behavior of local governments since it ignores two important constraints on local government spending. One is provided by households’ opportunity to vote directly on referenda concerning tax collections, and the other by the ability of households to leave local jurisdictions in response to expenditure-taxation packages which they find to be unsatisfactory. More general in application than Niskanen’s work are a number of papers which focus on the ability of public employees to influence the political process so as to increase both wages and the size of the public sector. The implications of this approach have been discussed by a number of authors, but in each case the underlying model has been left unstated or undeveloped. For example, James Buchanan considers the possible ramifications of the right of public employees to vote when he argues: “Bureaucrats are not different from other persons, and, like others, they will rationally vote to further their own interests as producers when given the opportunity. Clearly their interests lie in an expanding governmental sector, and especially in one that expands the number of its employees. Salaries can be increased much more rapidly in an expanding agency than in a declining or stagnant one.” [p. 14] Buchanan clearly implies that bureaucratic size and market power are highly correlated, but doesn’t consider any limits to the growth of government. The dynamics of bureaucratic and governmental growth are also analyzed by Gordon Tullock, who argues that bureaucrats will utilize their market power first to expand the size of the bureaucracy and then to increase wages. Once again, no explicit model is provided to permit consideration of forces that might check the growth of government. A number of authors extended the earlier work of Buchanan, Tullock, Niskanen, and others by focusing more specifically on behavioral and motivational differences between public and private employees. For example, Winston Bush and Arthur Denzau cite evidence that voter participation (and presumably support for the public sector) is higher for bureaucrats than for private sector voters, and conclude that higher public sector growth may be the result. A related argument is made in the paper by Thomas Borcherding, Bush, and Robert Spann, who suggest that bureaucrats view public goods as yielding higher (wage) income as well as utility from consumption. If public employees perceive this added dimension as a reduction in the price of public goods, then public employees will opt for a larger public sector. While certainly not complete, this brief overview of the literature is suggestive. A number of reasons have been given as to why public sector growth might get out of control, without much discussion of the possible checks on governmental growth. As Buchanan and Tullock themselves state, “Presumably there is some limit on this process, but it has not been determined either theoretically or empirically” (p.150). In this paper we attempt to respond to the theoretical gap recognized by Buchanan and Tullock by providing a model that permits explicit analysis of some of the issues just raised. The context of the model is a local government beset by growing political and economic power of its own employees on one side, and the threat of mobility of the private sector on the other. As regards the former, it is natural, but not necessary, to view the process in terms of a cohesive public employee union that can bargain for uniform (and high) public wages, and can also choose to vote for a larger public employee work force (though we will see that this particular behavior can be sub-optimal). In terms of the classic seller-buyer dichotomy that underlies almost all economics, to the extent that public employees or their unions gain political power over the budgetary behavior of the jurisdiction, the problem become interesting because the suppliers of public goods are in part their own demanders, with the private sector having little to do but pay the bills. Section I presents the assumptions of the model. Of particular importance is the assumption that public employees have some control over both their own wages and the level of public output. Section II shows how the size of the government budget and its composition between wage rates and employment are determined, first when the private sector workers are the dominant electoral bloc, and then when public sector workers assume control. The main object of interest in this latter case is the ratio of government spending to total income of the community, which will be shown to depend ultimately on the sensitivity of private sector location decisions to the cost of government services. In Section III we deal explicitly with how the competing demands of public and private sector employees might be resolved by a majority rule voting process, noting that public employee bargaining power can alter the level of public employment and public expenditures even when these employees are a minority of the total voting population. This has important implications for the median voter theory, at least in its simplified form, because it argues that even when the median voter is a private employee, the presence of public sector market power will result in a level of public sector expenditures which is influenced by public sector voting power as well as bargaining power. At the same time, the influence of public employees should be a good deal less than is often claimed in the popular press, because the threat of outmigration by private employees constrains the size of the public budget. In addition, for a given public budget, as the employee work force gets large, public wages must fall. Finally, in Section IV, we conclude by summarizing the implications of the analysis for the questions of the controllability of public budgets and suggest some further policy issues that might be examined.

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  Advantages of Arbitration Over Litigation: Reflections of a Judge

  Harry T. Edwards

  The advantages of arbitration over litigation, the arbitrator's role in ensuring a fair hearing, admissibility of evidence, procedural rulings concerning third party participation, subpoenas, due process protections, medical affidavits, and witnesses are discussed in this volume.

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  Absenteeism and Incompetence: The Role of the Courts

  Samuel Estreicher

  Issues of absenteeism and incompetence are largely matters for arbitration and collective bargaining with, as Sam Kaynard points out, some assist from the NLRB. I propose in my remarks to discuss the role of the courts, focusing on whether the courts have created any impediment to management and union efforts to deal with these problems across the bargaining table or in the arbitral forum. I will conclude with some general observations on the problems addressed by my distinguished colleagues on this panel. There are several conceivable points of intersection with the courts: (i) judicial review of arbitration awards; (ii) judicial review of NLRB orders; (iii) litigation under Title VII of the Civil Rights Act of 1964, the Rehabilitation Act, the Age Discrimination in Employment Act, and a host of other federal and state anti-discrimination statutes; (iv) judicial expansion of the rights of employees in nonunion settings; and (v) judicial elaboration of the exclusive bargaining agent's duty of fair representation to all bargaining unit employees. In the brief time allotted, I propose to focus on the last two areas. With respect to the first area, I note only that after the Supreme Court's Steelworkers Trilogy, particularly United Steelworkers of America v. Enterprise Wheel & Car Corp., judicial oversight of arbitration awards is quite limited. As former Michigan Law School Dean Ted St. Antoine has written, the arbitrator is the parties' carefully selected private contract reader and dispute resolver whose award "should be treated as though it were a written stipulation by the parties setting forth their own definitive construction of the labor contract." Thus, it is not surprising that a court would rule, as the Third Circuit did recently, that an arbitrator does not overstep his authority in finding a discharge lacking in 'just cause" because post-discharge psychiatric evidence revealed that the employee had been suffering from emotional distress, even though the employer was unaware of the worker's problem at the time of the dismissal. ''Just cause" is an open-ended, malleable concept, the content of which is derived only in part from explicit contract language or the settled understandings of the parties. Real content is poured into the concept only during the arbitration itself. I do not treat developments under the antidiscrimination statutes because they will be covered in tomorrow's session of the Conference. These statutes do not, by their terms, prevent labor and management from taking effective measures to deal with absenteeism and incompetence. Each permits discharge for legitimate business reasons not motivated by any of the proscribed bases of discrimination. I realize, of course, that as a practical matter the costs of even baseless litigation may dampen management resolve to act, and that often the cases present "mixed motive" problems similar to those confronting the NLRB under its Wright Line doctrine. Having dwelled for too long on what will not be discussed, I turn to the rights of nonunion employees and the duty of fair representation issues.

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  Congress and Redistribution

  John A. Ferejohn

  Legislation almost always entails some redistribution of wealth. But some proposals are justified by their sponsors primarily on the grounds of their intended effects on income distribution. Such proposals are often controversial because they entail the taking of property from some for the benefit of others; their consideration can therefore cause intense political conflict. Since the constitutional biases of the American system, with its multiplicity of decision stages, tend to work against the enactment of controversial laws, the passage of fundamental redistributive legislation occurs infrequently in American politics. Indeed, if one considers only organic acts, many of the most important redistributive programs were enacted in a few congresses of extraordinary partisan imbalance. The New Deal and Great Society congresses passed legislation authorizing social security, medical assistance to the aged, and a variety of programs of public assistance for the poor and the disabled. Although the inauguration of many of these programs was politically significant, they have grown to many times their original sizes through the actions (or at least the assent) of congresses that were not so atypical. Once previously controversial programs were established, congressional processes often turned to their routine funding and extension in circumstances that might have allowed retrenchment or even dismantling. The observer of income transfer programs in the United States is struck by two dominant conditions: First, the American system of redistribution is vast and complex. Dozens of programs exist with the purpose of transferring income or services to deserving individuals, and each is administered in some unique fashion in the federal system. Second, despite governmental activity, the effect of redistributive programs on the overall distributions of wealth and income is very limited by comparative standards. The distributions of wealth and income in this country remain highly skewed after decades of governmental involvement and show little sign of evolving in a more egalitarian direction. In this chapter I argue that the structure of American institutions, particularly congressional institutions, helps account both for the diversity of programs and for their limited aggregate effect. The logic of the explanation is based on the calculus of coalition formation imposed on political actors by the Constitution and by the institutional evolution that has proceeded from it. It is important, for the purposes of this essay, to make a distinction between the purposes of a program and the means employed to achieve them. A redistributive program or policy has as its primary purpose the alteration of some aspect of the distribution of wealth or income and employs taxing and spending to transfer wealth or income. Programs that use regulatory means to achieve ends of equity are not, in this sense, classed as redistributive even though they may appeal to the same basic values. Redistributive policies are instances of distributive ones. In particular, they are distributive policies that aim at serving values of fairness, equality, or compassion rather than, say, improving highways or limiting flood damage.

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  The Vital Role of Antitrust: Who Should Own the Means of Communication? The Vital Role of Antitrust and Other Forms of Regulation

  Harry First

  This paper focuses on the questions of the need for government regulation of the market structure of the telecommunications industry and of whether any limits should be placed on the identity of those who own the “means of communication”—limits which might affect over-the-air broadcasters, cable television outlets, newspapers, and all others who might in the future distribute information or entertainment programming via some new technology. The answer to these questions is, of course, heavily dependent on the shape and commercial viability of existing and new competitors in the telecommunications field. Also, however, it is dependent on America's current and future view of government regulation of ownership in general, an issue which is broader than the specifics of the telecommunications industry. This paper will attempt to place the problems of the telecommunications industry in that broader context and will examine general American attitudes toward regulation of market structure. Market structure regulation comes in two forms: 1) regulation through the antitrust laws, and 2) the more specific forms of regulation engaged in by government agencies, such as the Federal Communications Commission. Both methods of regulation are forms of public control of business behavior, although each involves a different institutional approach. Both methods today find themselves somewhat in disrepute. Americans are now in a love affair with laissez faire, and are filled with a renewed belief in the foresight and wisdom of private-firm decisionmaking, particularly with respect to large firms in high technology industries. This general trend is felt quite specifically in the telecommunications area, where new technology abounds and excites. This paper will suggest that, despite the current deregulatory climate, there are real problems ahead with respect to the future structure of the telecommunications industry. These are problems which this country has seen in the past, in this industry and in others, and which we should prepare to solve. Sections one and two examine the present state of the law, and its uncertain ability to deal with market structure problems generally. Section three sets out four market structure problems which have occurred in other industries, and are likely to occur in the communications industry. Section four, the final section, concludes with some suggestions for the future for government controls on ownership.

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  Durkheim's Theory of Punishment: A Critique

  David W. Garland

  The work of Emile Durkheim has traditionally been the central reference point for the .sociology of punishment. Whenever theoretical questions are posed as to the form; historical trajectory or social significance of punishment, the concepts and analyses of Durkheim present themselves as the most adequate or developed responses available. This essay interrogates these concepts, and questions both their coherence and their ability to open up the social analysis of penal practice. After a brief exposition of Durkheim's position(s) on the subject, the paper argues, first, that these positions, and the arguments which support them, are often incoherent, essentialist or presumptive, and secondly, that these Durkheimian concepts arbitrarily close off certain crucial questions concerning punishment. These ‘closures’ are shown to be at once illogical or arbitrary, and yet are required by Durkheim's arguments. They are also shown to be of considerable political significance in that they limit the kinds of questions (and struggles) which can otherwise be advanced in regard to penal practices. The paper is therefore engaged in the business of critical analysis, of exposition and critique. But before entering upon that venture, perhaps a word or two is necessary on the question of criticism and its credentials. The predominant modes of criticism currently undertaken in reference to Durkheim may be characterised in the following way: (1) the ‘empirical’ critique; (2) the ‘theoretical’ critique; (3) the political/ideological critique. Although any one article or analysis may include a combination of these types, it is generally the case that these modes or ‘levels’ of critique are seen as separable, and to some extent distinct. These modes of criticism, as I will describe them, share a fundamental misconception of the nature and status of theory. The first type wrongly construes the relation of theory to the category of the empirical; the second type confuses the relation of one theory to others; and the third misrepresents the relationship of the author to his or her theoretical discourse.

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  Towards a Social Analysis of Penality

  David W. Garland and Peter Young

  In recent years the study of punishment has undergone a remarkable transformation. Central to this development has been a fundamental shift in what are perceived to be the basic parameters of analysis. From being a technical, administrative discipline—epitomised by the notion of penology—the study of punishment is now increasingly considered to be an area of legitimate, even central, sociological concern. Although this development is welcome - indeed it is one of the purposes of this book to record it—it should not be imagined that the resulting product exhibits the degree of internal coherence or systematic nature which would warrant heralding it as a new discipline. Rather, the infusion of social theory has followed a more complex path and, as a consequence, has thrown up a number of often competing modes of explanation. As this book demonstrates, analyses run from those inspired by the work of Foucault, to those premised in a critical reading of more standard sociological classics such as Durkheim and Marx. This state of ferment and debate is common in social science; indeed social science is by legend apparently unable to demonstrate or determine a framework which all its practitioners would hold in common. Whether this is inherent in the nature of social study or emanates from the possibly idiosyncratic proclivities of social scientists is not, for the moment, of tremendous importance. Of far greater significance is one of its ramifications which may be considered deleterious. This ferment and debate—or contestability—often subordinates what should be a central, indeed a logically prior question for any social analysis: under what conditions does its specified subject-matter become an object of knowledge? Too often, social analysis proceeds by taking it as obvious or as common sense that what it purports to investigate is naturally, and without further reflection, a genuine and self-evident object of knowledge; that social science proceeds by the gradual and ceaseless appropriation of one natural, empirical object after another. An empiricist or positivist version of social science would, of course, find such procedures perfectly respectable. Indeed, for an empiricist this is the only way of conducting true science. However, it is an irony that the very state of social science as described above, which is often most lamented by empiricists, seems to belie this version of it. The very contestability of social science suggests that its objects of knowledge are not simple reflections of naturally occurring events, but that social science creates its own objects by a process of theoretical and, we would claim, practical relevances and reflections. As a type of knowledge, social science does not advance by reproducing snapshots of reality and explaining the connection between parts of them. Rather, for us, social science is a critical discipline in as much as the knowledge that it produces is subjected to a set of theoretical and practical criteria. Moreover, the authority of the criteria does not rest upon the correspondence they have with an immutable social world. An important impetus behind the work of all major theorists has been the possibility to talk of alternative social arrangements—that the prime reason for investigating the social is the desire to change it. In this sense, all social reflection is, as Hirst claims, a type of political calculation that imagines certain effects. If this is accepted, then the crucial questions become ones defined not so much by the ‘scientific’ status of social inquiry and its ‘practical implications’, but ones surrounding the process by which objects—be they crime, punishment, law or sex—are generated as genuine fields of inquiry and the alternative social arrangements inherent and imagined in this. A central part of this process involves analysis of the conditions under which knowledge is produced, for it is only through an understanding of these conditions that it becomes possible to apprehend and assess both the status of the object—in this case, penality—as a genuine field of inquiry and to discern the nature of those alternative social arrangements envisaged.

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  On Reading Marx Apolitically

  Stephen Holmes

  On Sheldon Wolin's account, the early Marx was motivated by a desire to remake society as a whole as well as to redeem humanity. Later, when he saw that his wild ambitions were unrealistic, he sank back into a thinly veiled despair. These two poses are closely related. They coalesce into an image of Marx as an utterly apolitical theorist, as a thinker childishly incapable of enduring the disappointment of his most absurd yearnings. I shall not ask if this is an accurate portrait of Marx. What I wish to examine is why Wolin finds the apolitical Marx he portrays so attractive and why he misleadingly titles his analysis “reading Marx politically.” I shall begin by recapitulating the basic thesis of the paper as I understand it and by dissecting the assumptions that underlie it. Implicit in my summary will be a criticism of Wolin's views. One of the charming things about this paper, of course, is the way it teaches us that we may be critical without being unfriendly. If you show that someone is wrong, you have also shown that he is right. If he is wrong he is right. If he is dead, he is immortal. I have chosen to summarize the paper as follows. It is jerrybuilt mythology, but it has its point: Prometheus swallowed Prometheus and gave birth to heroic failure. Let me explain. Prometheus, that is to say, the industrial revolution, preempted and supplanted an earlier political revolution or revolutionary tradition that had nurtured heroic, Promethean ambitions (the redemption of man). This sublimation of personal action by impersonal movement is a pattern that can be found both in nineteenth-century European societies as they developed and in Marx's theory as it developed. Marx's theory was a symbolic reenactment of the process of history: Marx too had a preindustrial phase. The earlier Marx's emphasis on human action (or “the political”) was embodied in his two concepts of “revolution” and “the proletariat,” which are paradoxically described by Professor Wolin as traditional residues in Marx's thought, because they echo the ideas of a mythic legislator founding a new order and, more banally, of purposive political action. Gradually, as Marx pondered the massive, impersonal forces of nineteenth-century capitalism, he abandoned his earlier hope that political action might give birth to a new order and embraced, or seemed to embrace, the theory that capitalism's own internal logic would lead to its collapse and to the creation of a classless society. Politics of the barricade was replaced by “the meta politics of industrial cosmogony.” Wolin has coined such an ugly phrase in order to drive home the point that Delacroix could never have painted a picture of such an impersonal revolution. So far, we have Prometheus swallowing Prometheus. But what about the birth of heroic failure? Even though he is crucially concerned with “Marx's despair” (§7), Wolin wants to avoid labeling Marx a simple failure. Marx's defeat was complex and pregnant with meaning. Marx's prognosis that capitalism would eventually collapse because of its own internal development, Wolin argues, must not be understood as a scientific prediction. Instead, it should be interpreted psychologically as Marx's last-ditch protest against his discovery of capitalism's uncanny ability to survive. The pessimism of Marx's analysis might be said to belie the optimism of his predictions. But Wolin prefers the opposite formulation: the optimism of Marx's predictions are a cry of impotent rage against the scientific and technological innovations that have rendered capitalism indestructible. Wolin focuses on two anomalies of Marx's work: that he could never complete anything he started, and that he persisted absurdly in labeling the mechanical collapse of capitalism with the misleading name of a “proletarian revolution.” This was a fraudulent personification of an utterly impersonal process. Wolin interprets both the incompleteness and the misnomer as implicit confessions on Marx's part that the game was up, that there was no chance for heaven on earth and that capitalism was immortal. The system would lurch from crisis to crisis, but it would never die. Marx's theoretical discoveries forced this bitter conclusion on him, even though it clashed radically with his optimistic political intentions. Thus Wolin inverts the Marxist tag that without theory will be no revolution, and tells us that with theory there will be no revolution. Marx could not publicly admit his disappointing discovery (nor privately to himself), but he could not fully suppress it either. He was too honest for this. It came out in the fragmentary state of his work, and in his continuing to brandish the passe language of political action to depict the collapse of capitalism under the weight of its own contradictions. System dysfunction could never be action. By calling it action, however, Marx admitted both that action was his dream and that the breakdown of capitalism was nothing but a dream. Likewise all those false predictions simultaneously concealed the bitter truth, and revealed Marx's juvenile longings.

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  The Class Action—American Style

  Arthur R. Miller

  For almost fifteen years segments of the American bench and bar have been waging a holy war over the class action. In its benign form, the conflict manifests itself as a philosophical, social, and economic debate over the merits and demerits of the class action. In its more virulent form, the controversy occasionally infects the litigation process with courtroom acrimony and invective. Some aspects of the clash have spilled over into the political arena, particularly in the consumer, discrimination, and environmental fields and attention by the mass media has brought the class action to the attention of much of the American public. Unfortunately, much of the controversy has been highly emotional, often focusing on particular events in individual cases that have been transmogrified over the years into cosmic anecdotes. The sad truth is that there has been too much advocacy and too little pure reflection, making it difficult to separate fact from fantasy. The accepted dogma is that the 1966 revision of the class action rule for the United States District Courts, Federal Rule of Civil Procedure 23, has had a dramatic effect on federal civil litigation and, because of the pervasive influence of federal practice, has had an indirect effect on state adjudication as well. Indeed, some claim that the new provision has done more to change the face of American practice than any other procedural development of the twentieth century, including the promulgation of the Federal Rules in 1938. Opinions regarding the effect of Rule 23 range over an amazing gamut. Class action adherents would have us believe it is a panacea for a myriad of social ills, and that it deters unlawful conduct and compensates those injured by it. Catch phrases such as “therapeutic” or “prophylactic” and “[taking] care of the smaller guy” are frequently trumpeted. Its opponents have rallied around characterizations of the procedure as a form of “legalized blackmail” or a “Frankenstein Monster.” They also have charged widespread abuse of the rule by lawyers and litigants on both sides of the “v.,” including unprofessional practices relating to attorneys' fees, so-called “sweetheart” settlement deals, dilatory motion practice, harassing discovery, and misrepresentations to judges. Finally, some have questioned the wisdom of imposing the burdens of class actions on an already over-taxed federal judiciary. They assert that many of these cases are unmanageable and inordinately protracted by opposing counsel, creating a certain millstone or dinosaur character that diverts federal judges from matters more worthy of their energies. Yet despite the attention that has been riveted on the Federal Rule, there is precious little 'empiric evidence as to how it actually has been functioning, in terms of either its alleged benefits or supposed blasphemies. Even if the negative effects of class actions were assumed, they would have to be balanced against the societal benefits derived from deterring socially proscribed conduct and providing small claim rectification—considerations that thus far have escaped measurement and perhaps always will. The available information suggests that much of the debate has been based on erroneous assumptions. It indicates that class actions are achieving some of their intended purposes and may well be providing systemwide economies in several contexts, even though small-claim, large-class damage cases have proven extremely resistant to expeditious processing. Although there have been instances of undesirable and unprofessional conduct, abuse does not appear to have been widespread. Stories about a few questionable occurrences—cosmic anecdotes, if you will—have been repeated so often at professional meetings that they have created the impression that evils are commonplace in class action practice. The empirical evidence also implies that in settled class actions, particularly in the securities and treble damage antitrust contexts, the great bulk of the money received from the defendants actually is distributed to class members, in contrast to the widely held notion that the fund is either devoured by greedy attorneys or consumed by administrative expenses. Admittedly, the dimensions of certain class actions are beyond anything previously seen in American courts in terms of size, complexity, and longevity. Some of these cases obligate judges to undertake supervisory tasks requiring enormous expenditures of time and effort, converting their role from that of passive referee of a battle fought and controlled by opposing counsel to that of active participant, not only managing the progress of the case through the procedural maze, but in effect, looking after the interests of class members in deciding whether or not to approve settlement negotiated by the lawyers. Some of the very recent experience in the United States suggests that imaginative judicial management by judges willing to control, shape, and expedite these cases can go far toward achieving the objectives of the class action.

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  The Objective Self

  Thomas Nagel

  Twelve established philosophers have contributed essays to this volume in either theory of knowledge or philosophy of mind: a few essays span both areas. Presented on the occasion of Cornell philosopher Norman Malcolm's seventieth birthday, they make a significant contribution to contemporary Anglo-American philosophy.

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  Contractarian Theory, Intergenerational Justice, and Energy Policy

  David A. J. Richards

  Contractarian theory, in the form developed by John Rawls, enormously clarifies and advances the critical discussion of distributive justice within developed industrial states. In what way, if at all, can or should this analytic framework be deployed in the analysis and explication of issues of justice outside this context, for example, justice among states or generations? This chapter addresses intergenerational justice, examining certain paradoxes that contractarian theory may introduce into the discussion of this problem. In general, I defend the coherent plausibility of contractarian theory in providing foundations for intergenerational justice, interpreted in terms of an equal opportunity criterion as proposed by Brian Barry and Talbot Page (Chapter 3); indeed, I enlist this ethical argument in the defense of an extension of constitutional rights to future generations, analogous to proposals innovating new forms of legal rights to protect natural objects or resources.