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  Dispute Resolution in Prison: The California Experience

  Stephen Gillers

  Jim, a seventeen-year-old boy in a California Youth Authority (CYA) institution, summed up CYA's grievance procedure: “Without grievance, we wouldn't have rights. Rights would be meaningless. They would be favors.” The difference between a favor and a right is power. In a prison, the people with power are “the authorities”—the guards, the administration, the warden. The only check on the arbitrary exercise of that power lies with the courts; but the courts, traditionally and even today, are reluctant to intervene between people in prison and prison authorities. The result is a real potential for arbitrariness, especially about “small” things, where judicial help is even less likely. But what is “small” to outsiders may be magnified many times to a person with no control over his world, no power to retreat and hide, no freedom of choice. The ability to enforce the decision to keep a favorite wall poster in one's room or to have the full twenty-five minutes allotted for dinner is important because, cumulatively, such decisions allow people whose freedom has been denied the power to still mediate their environment, to organize, however modestly, the world about them. Multiply dozens or scores of irritations, and place them in the atmosphere of a prison, and you have the mix that can make for an explosion if the spark is set off at a time when pressure is high. Against this background, the availability of a grievance procedure becomes important. And although the cases dealt with may appear trivial to the outsider, they are not to the prisoners. California's experiment with a ward (or inmate) grievance procedure in Youth Authority institutions is a middle way to protect inmate rights on issues the courts cannot easily handle. It is a way to promote human autonomy within walls. It recognizes that the inability to assert minor, even petty, claims when the sense of fairness is challenged, takes on tremendous importance to people who are locked up.

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  New Faces in the Neighborhood: Mediating the Forest Hills Housing Dispute

  Stephen Gillers

  The goals are simple and easily understood: a chance for a comfortable life; a chance for as much education as you or your children are capable of absorbing; a chance for decent housing; a chance for a good job; freedom from fear and want; retirement and old age with dignity. These goals cost money—private money, public money—and the harsh truth is that there are more people who seek them than there are resources available. Some people need not concern themselves with limited resources. They have sufficient access to private wealth to allow them to pursue their goals regardless of what anyone else has or wants. Nor need they be concerned with the effects of the use of public resources because, literally or figuratively, they can simply move if any particular use threatens to interfere with the comfort of their lives. Others, most of us, do not have these options. To a greater or lesser extent, our lives are affected by the manner in which the government chooses to allocate its resources. For many, public wealth will, at least in part, be needed to get the education, the housing, and the job they want. For others, though they may be able to afford such things on their own, or with the help of only indirect public subsidies, public decisions about resource allocation will nevertheless determine the quality of their education, who lives and works next to them, how safe they feel on the streets or in public transportation, how much “disposable income” remains after taxes, and so on. Wealthy as the United States may be, it still cannot provide each of its citizens with all of his or her needs. Perhaps that goal is impossible by definition, for as needs are filled, new ones take their place and expectations continue to rise. But the nation, without a sudden shift to strict egalitarian principles, and perhaps even with one, cannot now provide all its people with even the minimum essentials for uneventful lives. There is simply not enough to go around. So tough decisions must be made. The matter is yet more complicated. In many parts of the nation, the people most in need are racially identifiable. They are black, Hispanic, and Indian, but mainly they are black. This is historically understandable, but emotionally it leads to some predictable but devastating equations. Black equals poverty. Black equals danger. Black equals crime. In order to get a bigger piece of the economic pie, minority political groups, many of whom obtained their power through the civil rights movement of the 1960s, joined forces with the advocates of civil rights legislation that the movement produced. Also helpful was the Supreme Court's expansive reading of the Constitution's demand for “equal protection of the laws.” All of the pressure was aimed at requiring governments—local, state, and federal—to allocate more public resources in ways that would assist poor members of racial minorities. In other words, law and politics combined to favor black and Hispanic access to our (by definition) limited resources. This situation affects two broad groups of white Americans. It affects those who want but do not get government largesse because a “quota” of blacks and Hispanics do. And it affects those who make no claim to the public funds, but whose lives are “upset” in some other way because of the manner in which the minorities make use of the public money. The first group of whites- -those who are denied a benefit or an advantage because a minority receives it and because there is only so much to go around—sees itself victimized in various ways. Affirmative action is the most obvious and constant plaint. Minorities may get jobs, housing, or education over whites who claim to be more qualified or deserving. Whites charge this is reverse discrimination which is as evil as any other kind. Minorities respond that without some preferential treatment, at least for a while, members of their groups will not have a chance to catch up and, eventually, compete equally with the majority. The courts have responded to these disputes with a crazy quilt of rulings that cannot be easily rationalized and that depend, in part, on whether the minority is claiming its rights under the Constitution or under a statute, and whether the specific employer, landlord, or school was guilty of past discrimination. Recently, the U.S. Supreme Court agreed to decide whether the University of California Medical School at Davis could constitutionally have an affirmative action program for the admission of minority group members that was based on rejecting some white applicants who were, in terms of grades at least, better qualified. The second group of whites affected by government decisions to inject substantial amounts of public funds into the private economy for the benefit of minority group members are not competing for the same public dollar. Rather, they are affected by the way such public money is spent. The most obvious examples occur in housing. Whites in neighborhood X may not be seeking government money to build themselves apartment buildings in neighborhood X; but when the government gives such money to, say, blacks for that purpose, some of the whites perceive that the comfort of their lives is jeopardized. If whites in the first group feel displaced by the government's affirmative action programs, whites in the second category feel invaded.

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  The Limits of Objectivity

  Thomas Nagel

  These lectures are about objectivity and its limits. In the second and third lectures I shall be concerned with normative questions; I shall defend the objectivity of ethics, and try to explain what it means. But today I am going to say something about the problem of objectivity as it occurs in metaphysics, especially in the philosophy of mind. I do this because the problem has a similar form in the two areas, and because ideas arising from metaphysics influence our views of what must be done to discover objectivity in ethics. I hope therefore not only to say something about subjectivity and objectivity in the philosophy of mind, but also to set the stage for an account of what it would be for ethics to be objective.

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  Lewis F. Powell, Jr.

  Burt Neuborne

  This work examines the biographical facts of each US Surpeme Court justice's life, including his or her background in the law, the paths that led each one to the Supreme Court, and each justice's major decisions, and how these decisions reveal an underlying legal philsophy.

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  The Jurisprudence of Privacy as a Constitutional Right

  David A. J. Richards

  The proper philosophical elucidation of the constitutional right to privacy is a major challenge to constitutional jurisprudence. Elsewhere, I have made some suggestions regarding the scope of this constitutional right in the area of sexual autonomy. Here, I should like to develop those suggestions into a more general theory of the constitutional right to privacy, i.e., the application of this right not only to sexual contexts but, as commentators and some courts have suggested, to styles of dress, the use of marijuana, the right to die, and the like. Is it possible, in a philosophically cogent way, to develop a form of philosophical explication which casts light on how and why the constitutional right to privacy has been applied in certain ways and ought to be applied to a number of seemingly disparate and diverse situations? I should like here, in rather brief and summary compass, tentatively to propose a kind of sketch to a prolegomenon of such a theory. I begin with a description of the present forms of the right to privacy in the law, which naturally invites reflection on the jurisprudential foundations of the constitutional right to privacy which is our concern here.

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  The Legal Regulation of Risk

  Richard B. Stewart

  I wish to address a question that has divided the two cultures of law and science: What should be the role of courts, lawyers, and litigation in the administrative regulation of environmental hazards?

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  The Stimulative Effects of Intergovernmental Grants: Or Why Money Sticks Where it Hits

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

  The theoretical literature on the impact of intergovernmental grants on state and local fiscal behavior has reached a consensus on some basic propositions. According to this theory, the form in which grant assistance is given is very important in predicting the effect of the grant on local public spending. Nonmatching grants are assumed to alter the income available to jurisdictions without altering the relative price of public goods, and are hence assumed to have an effect on local spending similar to that of any other change in private income in the community. Matching grants, on the other hand, cause relative prices to change and thus are found to stimulate more spending per dollar of grant than nonmatching grants. Empirically, one of these predictions has passed the statistical test and one has failed. The generally confirmed result is that matching grants stimulate more spending per dollar of grant than do nonmatching, revenue-sharing types of grants. Regarding the nonconfirmed hypothesis – that nonmatching grants have spending effects similar to those of other changes in private income – the preponderance of evidence is that nonmatching grants stimulate much more local spending per dollar of grant than does income going to private citizen within the community. The obvious reason for this phenomenon, which we term the “flypaper effect” (money sticks where it hits), is that bureaucrats and politicians find it easier to avoid cutting taxes when the government receives revenue-sharing monies than they do to raise taxes when some exogenous event raises the income of the community. The fact that they standard theory of intergovernmental grants has been only partially supported by empirical studies suggests that some modifications to the theory may be in order. In this paper we make two. The first uses orthodox, median-voter assumptions – that the median voter is a private employee taking all wages and prices as given – and shows why even in this case the tax price and spending effects of nonmatching grants and changes in private income may not be identical. The economic rationale for the flypaper affect hinges on the inability of voters to perceive the true marginal price of public expenditures when nonmatching grants are present. Finding this economic rationale of course does not preclude an additional political rationale, but it helps to improve the relevance of the economic theory of grants. The second modification follows the logic of the first, except that we now investigate tax price and spending behavior for the case where some voters belong to the public (rather than private) sector and may possess sufficient power to determine public employee wage rates and output levels. These two amendments to the traditional theory are developed in a model of an economy with two types of governments – an exogenous federal government and an endogenous local government – and just one type of grant, consisting of nonmatching aid of a fixed dollar amount. The model distinguishes between private and public sector employees, analyzing the optimizing behavior of both. In the first section of the paper the formal assumptions for both the private and public employee models are presented. The second section uses the private employee model to examine the utility-maximizing behavior of private sector employees when all prices and wages are taken as given and develops our economic rationalization of the flypaper effect. The third section then deal with the public employee case, this time distinguishing between real and nominal flypaper effects because wages may not be exogenous. The final section gives a few concluding observations.

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  An Experimental Analysis of Decision-making Procedures for Discrete Public Goods: A Case Study of a Problem in Institutional Design

  John A. Ferejohn

  The lead article, by Ferejohn, Forsythe, and Noll, describes a mechanism which is actually used by the public television network to decide which of a large number of contending programs will be produced and purchased, at what prices, and by whom. Because the cost of producing a program is largely independent of how widely it is distributed and because a program is a lumpy unit, the problem is one of the provision of a discrete public good. Ferejohn, Forsythe, and Noll designed a version of the network's mechanism which can be used in an experiment and ran an experiment to compare it with a public goods allocation mechanism proposed by Green and Laffont (1977).

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  Practical Aspects of the Construction of Decentralized Decision-making Systems for Public Goods

  John A. Ferejohn, Robert Forsythe, and Roger G. Noll

  Recent developments in computer and communications technology have made feasible the use of genuine decentralized decision-making systems by large groups. For example, many cable television systems have the technical capability to allow two-way communications between subscribers and the cable headend. These technical developments have made it possible to have instant referenda on a variety of public issues, and as this possibility has become more real, the implications of direct, non representative democratic procedures for our system of government have received more and more attention.

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  Four Policemen in London and Amsterdam

  Stephen Gillers

  At 10 P.M. on a September night in 1976 Elliot Spector, a Hartford, Connecticut, policeman, was walking a downtown beat when a call came over his walkie-talkie. A woman had complained that her tenement apartment was without heat or hot water. In Hartford if a person is without water or heat, the police will call the landlord and try to work out the difficulty. If heat or water should be supplied, the police are empowered to order contractors to carry out the task and bill the landlord. The woman was living with an infant on the top floor of a “closed’ building that the landlord had stopped maintaining at the beginning of the month. Spector took the name of the landlord from some onlookers, tracked down the superintendent at a nearby building, got the landlord's telephone number, and tried to call him several times, finally reaching him about half an hour later. The landlord explained that the building had been closed the previous month and that the woman had remained. He said that he would not supply heat but would try to have the water connected the next day. Another day Spector was riding in a police cruiser. A call carne from a ghetto area bar reporting a disturbance. When Spector arrived, a man was standing motionless next to the juke box, apparently drunk. The bartender said he was involved in the disturbance. Spector approached the man in a friendly way and persuaded him to leave the bar on his own. Later that night Spector responded to a sick call at an apartment building, but the person who had made the call was not there when Spector arrived. The next call involved a thirteen-year-old girl. She had been hit by her older sister's boyfriend, who had then fled. No one seemed to care about the incident except the child. The older sister was angry with her for calling the police and refused to speak to Spector. Eventually an uncle intervened and convinced the child not to go forward with her charges. Finally, there was a report of a hit-and-run accident. One car had collided with another, but there was no personal injury. The offending driver had stopped and slipped into a nearby building. The driver of the other car, a woman, was waiting for him with a stick. After the cruiser arrived, the man emerged from the building and Spector arrested him after the complainant and another woman identified him. These incidents give a flavor of the police job in Hartford. Spector describes these calls as “not atypical” of what he does every day. They took a total of about four hours. They were all uneventful, even boring, and had no relationship to the popular image of the policeman's job, especially as conveyed on television each case the call came from a ghetto area and the callers and the other parties involved were black or Spanish-speaking people.

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  Reverse Discrimination and Compensatory Justice: Constitutional and Moral Theory

  David A. J. Richards

  The relationship of moral and legal ideas in constitutional law is currently undergoing a striking and suggestive theoretical re-examination. In contradistinction to Learned Hand’s influential legal positivist indictment of all forms of “natural law” ideas in understanding constitutional law, recent commentary urges “the strength of our natural law inheritance in constitutional adjudication,” which it is “unwise as well as hopeless to resist.” The theoretical focus of this re-examination is a needed “fusion of constitutional and moral theory, a connection that, incredibly, has yet to take place,” without which “[c]onstitutional law can make no genuine advance.” A natural form of this theoretical re-examination is the application of moral theory to the analysis of particular constitutional provisions. Obviously, the relationship between morality and constitutional law is not exact. Nonetheless, a number of provisions of the Constitution presuppose strong substantive moral ideas and conceptions so that the analysis of underlying moral ideas fundamentally clarifies the interpretation of the constitutional provision. Morally informed constitutional provisions differ importantly in their historical relationships to substantive moral ideas. The First Amendment, for example, clearly rests on the substantive moral conception of basic human rights familiar to educated men of that time from the widely read relevant works of Milton and Locke, among others. But the original Constitution did not consistently extend these rights to all moral persons; the institution of slavery, for example, was nowhere condemned, but rather at several points impliedly endorsed. This moral lacuna in the constitutional charter of basic moral rights was only resolved by the Civil War and the constitutional amendments which followed in its wake. Of these amendments, the due process and equal protection clauses of the Fourteenth amendment have been and especially fertile source of the enlargement of constitutional rights. The equal protection clause, for example, has been interpreted to require forms of equal treatment well beyond the original intent to abolish slavery and concomitant state practices. Not only has the due process clause been interpreted to require the application of many of the original amendments comprising the Bill of Rights against the states, it has been viewed as a source of rights not expressly articulated in the Bill of Rights. This gradual evolution in the development of the constitutional conception of moral rights typically rests on constitutional provisions strikingly general in form (“freedom of speech or of the press”; “due process of law”; “equal protection of the law”) and often lacking nay convincing legal history regarding the intended specific application of the provision. A consensus, to the extent it existed, was on the generalities of a political compromise which concealed future divergences of interpretation. Even when there is definitive legal history to the effect that a certain interpretation of a constitutional provision was not contemplated, such legal history is not decisive in the Supreme Court interpretation of those provisions. The Supreme Court has the seminal role in the development of constitutional doctrine in the light of its independent competence and responsibility. Within the framework of such general constitutional provisions, typically ambiguous legal history, and ultimately independent Supreme Court decisional authority for the development of constitutional doctrine, the explanation of underlying moral ideas has a remarkable clarifying force both in the interpretation of general structural features of constitutional adjudication and in the progressive evolution of constitutional doctrine. The purpose of this essay is to elaborate a variation of a theme defended elsewhere: namely, that contractarian moral theory has a peculiar explanatory force in understanding both the structure of constitutional law (as a limitation on majoritarian power) and specific problems in constitutional adjudication. We focus here on the moral interpretation and analysis of the equal protection clause of the Fourteenth Amendment, clearly among the most morally informed provisions of the federal Constitution. As one seminal commentary notes: “It [the equal protection clause] was placed in our Constitution as the culmination of the greatest humanitarian movement in our history. It is rooted deep in our religious and ethical traditions. Is any other clause in the Constitution so eminently suited to be the ultimate haven of human rights?” In particular, we shall examine the vexing problem of the constitutionality under the equal protection clause of programs of reverse discrimination. This problem has elicited sharply conflicting viewpoints regarding the fundamental morality of such programs, which has received natural expression in legal disagreement over the constitutionality of such programs under the equal protection clause of the Fourteenth Amendment. On the one hand, commentators argue that programs of reverse discrimination represent constitutionally forbidden classification by race or ethnic group, abandoning the fundamental moral principle (embodied in the equal protection clause) that person are to be treated as individuals on their own merits, not as members or representatives of groups. On the other, such programs are defended on the ground that they represent a consistent working out of the moral principle underlying the equal protection clause: namely, that disadvantaged minorities should be accorded special protections against majoritarian oppression, or the vestiges thereof. This moral and constitutional controversy most recently was crystallized in litigation in DeFunis v. Odegaard, in which DeFunis argued that the minority preferential program of the University of Washington Law School unconstitutionally deprived him of admission to that school. The DeFunis record revealed that in 1971 the law school had essentially two pools of applicants. The Admissions Committee considered the applications of blacks, Chicanos, American Indians, and Philippine-Americans separately from other applications. Although no minimum quota had been set for applicants who were members of these minorities, thirty of the thirty-seven accepted would probably have been summarily rejected if their records had been treated like those of white applicants, since their “predicted first year grade averages,” base on Law School Aptitude Test scores and college grades, fell below the effective cut-off point for virtually all white applicants. Many white students with substantially higher predicted averages, including DeFunis, were also denied admission. If the law school had treated minority group applications as it treated with applications, none of the eighteen minority students who actually enrolled would have been admitted. In a 5-4 decision, the Supreme Court refused to decide DeFunis on equal protection grounds, concluding in a per curiam opinion that sice DeFunis clearly could complete his legal education, the case was moot. Only Justice Douglas indicated his opinion on the substance of DeFunis’ equal protection claim. In his view, the Constitution compels “The consideration of each application in a racially neutral way,” which would require that each candidate be evaluated individually according to criteria applicable to all, and that race be eliminated as a factor – explicit or implicit – in admissions decisions. The Court in DeFunis clearly only postponed the disposition of the issue of that case: namely, the constitutional permissibility of voluntary preferential admissions programs to professional schools in the absence of evidence of racial discrimination in the past by the professional school. Yet, the general problem of the constitutionality of preferential programs has been a matter of recurrent judicial concern in related contexts. In the classic area of racial imbalance among public schools, the Supreme Court itself has squarely upheld the appropriateness of racial classifications to correct illegal de jure segregation among public schools and has explicitly suggested that states may use racial criteria to correct racial imbalance among such schools even when official practices are not responsible for the original imbalance. Similarly, lower courts have approved racial quotas to correct employment discrimination under Title VII of the Civil Rights Act of 1964, even though some of the present beneficiaries of preference are not the persons who suffered the original discrimination. A similar approach has been adopted by courts concluding that municipalities have engaged in unconstitutional employment policies. Courts sometimes find discrimination in the absence of any intentional disparity in treatment, on the ground of state use of tests on which member of minority groups fare badly or on the absence of positive efforts by the state to recruit members of minority groups. A similar way of thinking underlies the guidelines used by the Department of Health, Education, and Welfare for assuring nondiscrimination in university faculty hiring. Goals are set for minority group and female representation to test whether universities are hiring on a nondiscriminatory basis; in theory a university is required only to hire on an evenhanded basis, but if it falls below H.E.W. goals is may have a difficult time proving non-discrimination. In order to clarify the recurrent constitutional litigation over the permissibility of preferential programs, we must turn to the examination of the moral debate underlying the constitutional disagreement. If this is in substance a moral disagreement, as it clearly seems to be, moral theory may have cogent force in bringing its insights to bear on this problem. We shall begin with a general discussion of the special clarifying role of contractarian moral theory in interpreting constitutional values. Then we shall discuss the general problem of the interpretation of the equal protection clause and the continuing debates among constitutional scholars regarding the proper interpretation of the equal protection principles which outlaw forms of racial discrimination. Finally, we shall discuss the role of contractarian principals in clarifying the constitutional problem of reverse discrimination.

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  Judicial Approaches to Local Public-Sector Equity: An Economic Analysis

  Daniel L. Rubinfeld

  During the past decade a vast number of legal actions have been taken against state and local governments in an attempt to bring about greater equality in the distribution of public services and taxes. From the point of view of an urban economist, the cases are relevant because they have important consequences for the analysis of expenditure, taxation, and land-use policies. This paper will analyze the likely economic impact of court originated or court ordered policies with income distribution implications. This analysis is relevant for economists (and lawyers) for two reasons: it suggests the kinds of institutional constraints that local public decision-makers are likely to face, and thus, which ought to be incorporated into models of urban fiscal behavior; and it suggests specific empirical policy questions that remain largely unanswered and that may provide fruitful grounds for future research. The history of legal attempts to attain equity through the local public sector is a complex one. However, one might summarize the recent history by arguing that reformers have focused on the following four objectives: (1) equal provision of education and other public services within jurisdictions; (2) equal (effective) tax rates for all households within jurisdictions; (3) equal capacity (tax bases) among jurisdictions to finance education; and (4) the removal of minimum lot zoning and other land-use controls to open all jurisdictions to low-income housing. To some extent these objectives are consistent with a broad view of horizontal equity (equal treatment of equals) and are thus an end in themselves. What is of direct concern here, however, is that whether intended or not, the objectives can and will lead to a more vertically equitable distribution of income. Much of the economic underpinning of my analysis lies in the recent (i.e., the past decade) literature of the urban and public economics disciplines. Part 1 of the paper describes some aspects of this literature that are pertinent to my discussion of the impact of the recent court decisions. Parts 2 and 3 consider the economic and legal issues surrounding the four equity objectives. In Part 2 the vertical equity and efficiency consequences associated with each of the two intrajurisdictional equity objectives are considered. I describe the existing case law and ask whether the courts are likely to be successful in bringing about either tax-rate or expenditure equality, whether the imposition of such constraints upon local governments is likely to increase or decrease efficiency, and whether there will be any improvement in the distribution of income. Part 2 is concerned with the interjurisdictional equity objectives. I consider the legal history relating to the distribution of tax burdens and expenditures among jurisdictions within the metropolitan area, asking whether the courts have been or are likely to be successful in bringing about jurisdictional tax base equality or in removing zoning and other constraints that limit the supply of low-income suburban housing and the access of low-income households to suburban public services. In addition, I consider the efficiency and vertical equity implications of tax base equality and equal access. The final section contains a brief summary of the chapter and some tentative conclusions concerning the legal approach to local public-sector equity. I have attempted neither to survey all substantive areas relevant to the equity issue nor to exhaust the case law in the subject areas mentioned. Specifically, recent developments in the area of environmental law have been omitted, in part because the policy consequences apply more to state and regional than to local government. School desegregation cases are relevant; but, although school desegregation can help to achieve intrajurisdictional expenditure equity and improvements in access to public services among jurisdictions, the topic has been omitted, largely because of Clotfelter’s treatment of school desegregation in chapter 11.

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  On Super-Rationality and the School Voting Process

  Daniel L. Rubinfeld

  Paul Portney and Jon Sonstelie have written a stimulating paper in which voters in school millage elections are not only rational in considering the direct consumption of benefits of education, but super-rational as well, in the sense that they respond to expected capital gains associated with changes in property values. The issues raised by the paper and my comments about them can best be divided into three parts. Frist, I argue that the authors suggest a number of interesting theoretical questions, which link the local public spending and voting literatures, and thereby point to some potentially fruitful areas of research. Second, I argue that the empirical evidence presented by the authors does not provide a good test of their super-rationality hypothesis, and finally, I present some independent data which help to shed some light on the subject and which in the process suggest just how difficult it might be to obtain a good test of super-rationality.

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  Simplification for the Average Taxpayer

  Deborah H. Schenk

  The complexity in our tax laws, which has given rise to talk of simplification, is rooted in the statute itself. It is clearly the Internal Revenue Code and its progeny, the regulations, that are the sources of the difficulty. But the average American taxpayer is either unaware of the statute or could care less. The man on the street is concerned with the complexity that manifests itself each year on April 15, when he tries to do his tax return. Presumably then, simplification means those steps that would ease this annual burden. Most people seem to feel that simplification would be achieved if the average taxpayer could file his own return with little or no assistance with a minimum of difficulty. Implicit is the assumption that it is wrong to ask people to pay to have their returns completed. Therefore, Congress should do whatever is necessary to eliminate the need for the paid preparer. The thesis of this paper is that this goal, although laudable, is unachievable. To continue to imply that it is possible only exacerbates the problem. Even assuming this goal could be met, it would involve enormous trade-offs that most taxpayers probably would not be willing to accept. This is not to say that nothing can be done to ease matters. Some simplification is possible, and we should encourage Congress and the IRS to do so. Furthermore, simplification should be a factor—although not the determinant one—to be taken into account when new legislation is proposed or old laws reviewed. But by and large, given our tax system with its inherent complexities, the average taxpayer will never be able to do his own return and probably should not even try. This paper will examine what is complex for the average taxpayer and why it is so complex. It also summarizes possible ways to simplify and indicates that the inherent problems in simplification make it difficult to simplify enough to enable taxpayers to do their own returns. Finally, faced with that conclusion, it discusses what we should do.

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  The Resource Allocation Role of Reviewing Courts: Common Law Functions in a Regulatory Era

  Richard B. Stewart

  It has long been accepted that courts reviewing administrative decisions may not substitute their judgment for that of an administrative agency on policy choices, about which relevant statutes provide no guidance. Under traditional principles of administrative law, the courts’ basic function is to ensure that administrative official adhere to legislative directives. However, due to limited knowledge, changing conditions, or political constraints, legislators are typically unable to enact statutes that specify in consistent detail what choices administrators must make. Vague, general, or conflicting statutory provisions, together with the traditional limitations on the scope of judicial review, result in administrators exercising considerable discretion. While courts will review for abuse of discretion, inquiring whether an agency’s resolution of competing considerations in a particular case was patently unreasonable, in practice courts almost never overrule administrative decisions on this ground. We are concerned here with the resulting discretion enjoyed by administrative officials in the allocation of environmental resources. Agencies with environmental responsibilities are subject in full measure to the contemporary sense of disillusionment with the administrative process. Environmentalists assert that agencies with development missions in fields such as power, water resources, agriculture, and highways have been “captured” by regulated or client firms, and that they disregard or slight environmental concerns. On the other hand, industry representatives complain that regulatory agencies whose prime mission is protection of environmental quality are insensitive to the economic and social costs of control measures. Both groups have appealed to the courts to abandon traditional limitations on judicial review and to exercise tight control over agency policy choices. The courts have generally rejected such appeals. For example, in Scenic Hudson Preservation Conference v. FPC, the court refused to set aside the Federal Power Commission’s approval of a pumped storage-generating facility opposed by environmental groups, asserting that in the absence of controlling statutory directives, “this court could not and should not attempt to substitute its judgment for that of the commission.” Similarly, in Ethyl Corp. v. EPA, the court declined industry’s request that it invalidate an Environmental Protection Agency (EPA) order requiring removal of lead additives from gasoline, stating that the established standard of review “forbids the court’s substituting its judgment for that of the agency.” Nonetheless, courts have not been heedless of criticisms that bureaucratic administrators, not formally accountable through political or market mechanisms, exercise discretion in ways that may lead to serious resource misallocation or inequitable distributional consequences. The courts have responded, not by substituting their judgment concerning substantive outcomes for that of the agency, but by procedural innovations designed to permit all affected interests access to the process of agency decision and to improve the quality of agency deliberations. For example, courts have required that adjudicatory hearings for licensing power plants be extended to include not only regulated firms but environmental groups. Agencies in turn have reacted to the mounting procedural burdens of expanded trail-type adjudicatory hearing by developing policies through informal legislative-type rulemaking. The courts countered this shift by expanding the procedural formalities in rulemaking, requiring that the agency disclose the documentary basis for its proposals and respond in detail to criticisms and additional date submitted by regulated firms, environmental groups, and other private interests. Reviewing courts also began to scrutinize in considerable detail the reasoning advanced by agencies for discretionary policy choices, measuring the agency’s justifications against the documentary evidence of record. These requirements have been imposed upon environmental advocate agencies, such as EPA, as well as upon other agencies whose prime role is development. The courts’ response to the problem of agency discretion reflects judicial diffidence in dictating substantive outcomes in given cases, combined with faith that improved processes of decision based on participation by all affected interests, more complete development of data, and decisional rationality as reflected in written opinions will produce desirable and equitable policy choices. This response is fully consistent with jurisprudential assumptions that have been firmly entrenched ever since the New Deal: that the courts should confine themselves to maintaining the integrity of constitutive decision-making arrangements and protecting individual liberties, while decisions about resource allocation should be remitted to the political branches. This essay questions the conventional wisdom as applied to administrative decision making the in the realm of environmental resources. I accept that efforts by courts to improve the process of administrative decision making—particularly the added procedural requirements in rule making and more searching judicial scrutiny of the empirical and analytical basis for discretionary policy choices—have on balance been beneficial. However, these developments have produced costly side effects on substantive policies. Some of these costs might be avoided by more explicit judicial reexamination of the merits of agency policies. Moreover, in some cases judicial control of substantive choices may be essential to secure important interests in allocation of environmental resources.

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  Basic Considerations in Tax Simplification—An Overview

  Stanley S. Surrey, Gerard M. Brannon, Harvey Galper, Sidney I. Roberts, and Deborah H. Schenk

  The general purpose of this initial session was to lay a foundation for the remainder of the Conference discussions. The specific objectives were to survey the array of possible definitions of tax simplification, to identify those individuals and organizations concerned with issues of simplification, and to explore the concept of simplification from various relevant perspectives. Professor Deborah H. Schenk discussed simplification for the average taxpayer. She strongly urged that simplification be considered from the perspective of the professional tax return preparers, rather than that of an average taxpayer. Professor Schenk suggested that it would be unrealistic to establish as a goal that the average taxpayer be capable of preparing his own return. She stated that the majority of Americans cannot or will not prepare their own tax returns. Therefore, the most helpful result for a conference such as this would be the establishment of a reasonable standard that income tax return preparers might be trained to meet.

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  Liberalism

  Ronald M. Dworkin

  In this essay I shall propose a theory about what liberalism is; but I face an immediate problem. My project supposes that there is such a thing as liberalism, and the opinion is suddenly popular that there is not. Relatively recently—sometime before the Vietnam War—politicians who called themselves ‘liberals’ held certain positions that could be identified as a group. Liberals were for greater economic equality, for internationalism, for freedom of speech and against censorship, for greater equality between the races and against segregation, for a sharp separation of church and state, for greater procedural protection for accused criminals, for decriminalization of ‘morals’ offenses, particularly drug offenses and consensual sexual offenses involving only adults, and for an aggressive use of central government power to achieve all these goals. These were, in the familiar phrase, liberal ‘causes’, and those who promoted these causes could be distinguished from another large party of political opinion that could usefully be called ‘conservative’. Conservatives tended to hold the contrary position to each of the classical liberal causes. In this essay I shall propose a theory about what liberalism is; but I face an immediate problem. My project supposes that there is such a thing as liberalism, and the opinion is suddenly popular that there is not. Relatively recently—sometime before the Vietnam War—politicians who called themselves ‘liberals’ held certain positions that could be identified as a group.

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  Medical Malpractice: Its Cause and Cure

  Richard A. Epstein

  I want to accomplish two distinct, but closely related tasks in this paper. First, I hope to give some explanation of the origin of the current medical malpractice problem, by showing how the traditional negligence standard of reasonable care has been transformed and expanded by courts in recent years. Second, I want to evaluate two possible responses to the current situation, one that would place greater reliance upon the traditional devices of private contract, and one—the various no-fault medical plans, including so-called medical adversity insurance—that would use direct administrative controls to provide, if anything, expanded protection to the victims of medical injury.

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  The Distribution of Rights in Society

  John A. Ferejohn

  In the few years since the publication of Sen's paper on 'The Impossibility of a "Paretian Liberal"', (1970) a remarkable outpouring of notes and papers has been circulated and published on the topic. Two recent papers, one by Gibbard (1974) and the other by Blau (1975), have addressed the issue raised by Sen in especially interesting and provocative ways. I think their proposals are not completely satisfactory in certain respects and so I venture here to propose a somewhat different way of attacking the problem. The resolutions that I propose to Sens' 'paradox' have their own deficiencies of course and one is left, ultimately, to judge which deficiencies are the least incapacitating. Like Blau and Gibbard I propose to weaken, in a certain sense, the notion of a right sufficiently to allow society to distribute rights to many individuals in a way that is consistent with the Pareto principle. Several such notions of right are found and I argue that our intuitions about rights in applied situations do not necessarily support the alternative notions of Blau and Gibbard.

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  Toward a Theory of Legislative Decision

  John A. Ferejohn, Morris P. Fiorina, and Herbert. F. Weisberg

  Applies game theory to legislative behavior, with supporting experiments.

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  To Extract a Connected Object of Arbitrary Shape from Its Background by a Decision Tree Method

  Jeffrey S. Lehman, J. M. S. Prewitt, and S. C. Wu

  Proceedings - Institute of Electrical and Electronics Engineers Computer Society Conference on Pattern Recognition and Image Processing

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  Ethics as an Autonomous Theoretical Subject

  Thomas Nagel

  The usefulness of a biological approach to ethics depends on what ethics is. If it is just a certain type of behavioral pattern or habit, accompanied by some emotional responses, then biological theories can be expected to teach us a great deal about it. But, if it is a theoretical inquiry that can be approached by rational methods, and that has internal standards of justification and criticism, the attempt to understand it from outside by means of biology will be much less valuable. This is true for the same reason that the search for a biological explanation of mathematical or physical theories, or biological theories for that matter, would be relatively futile. First, we have no general biological understanding of human thought. Second, it is not a fixed set of behavioral and intellectual habits but a process of development that advances by constant reexamination of the total body of results to date. A being who is engaged in such an open-ended process of discovery cannot at the same time understand it fully from outside: otherwise he would have a decision procedure rather than a critical method. In most interesting subjects we do not want a decision procedure because we want to pursue a deeper level of understanding than that represented by our current questions and the methods we have for answering them. No one, to my knowledge, has suggested a biological theory of mathematics; yet the biological approach to ethics has aroused a great deal of interest. There is a reason for this. Ethics exists on both the behavioral and the theoretical level. Its appearance in some form in every culture and subculture as a pattern of conduct and judgments about conduct is more conspicuous than its theoretical treatment by philosophers, political and legal theorists, utopian anarchists, and evangelical reformers. Not only is ethical theory and the attempt at ethical discovery less socially conspicuous than common behavioral morality but the amount of disagreement about ethics at both levels produces doubt that it is a field for rational discovery at all. Perhaps there is nothing to be discovered about it by such methods, and perhaps it can be understood only as a social and psychological peculiarity of human life. In that case biology will provide a good foundation, though psychology and sociology will be important as well. In this paper I want to explain the reality of ethics as a theoretical subject. The progress of that subject is slow and uncertain, but it is important, both in itself and in relation to the nontheoretical forms that ethics take, because the two levels influence each other. The ethical commonplaces of any period include ideas that may have been radical discoveries in a previous age. This is true of modern conceptions of liberty, equality, and democracy, and we are in the midst of ethical debates that will probably result in a disseminated moral sensibility two hundred years hence which people of our time would find very unfamiliar. Although the rate of progress is much slower, the form of these developments is somewhat analogous to the gradual assimilation of revolutionary scientific discoveries into the common world view. As in science, also, by the time one advance has been widely assimilated, it is being superseded by the next, and further developments use accepted current understanding as the basis for extension and revision. In ethics the two levels interact in both directions, and the division between them is not sharp. Acute questions of social policy produce widespread attempts to theorize about the basic principles of ethics. A common idea of progress is found in all these fields, although it is not very well understood in any of them. It is assumed that we begin, as a species, with certain primitive intuitions and responses that may have biological sources. But in addition we have a critical capacity that has allowed us, starting a long time ago, to assess, systematize, extend, and in some cases reject these prereflective responses. Instead of estimating size and weight by touch and vision, we develop devices of measurement. Instead of guessing about numerical quantities, we develop mathematical reasoning. Instead of adhering to an idea of the physical world that comes directly from our senses, we have progressively asked questions and developed methods of answering them that yield a picture of physical reality farther and farther removed from appearance. We could not have done any of these things if we had not, as a species, had some prereflective, intuitive beliefs about numbers and the world. Progress beyond this has required both the efforts of creative individuals and the communal activities of criticism justification, acceptance, and rejection. The motivating idea has been that there is always more to be discovered, that our current intuitions or understanding, even if commendable for their time, are only a stage in an indefinite developmental process.

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  Ruthlessness in Public Life

  Thomas Nagel

  The great modern crimes are public crimes. To a degree the same can be said of the past, but the growth of political power has introduced a scale of massacre and despoliation that makes the efforts of private criminals, pirates, and bandits seem truly modest. Public crimes are committed by individuals who play roles in political, military, and economic institutions. (Because religions are politically weak, crimes committed on their behalf are now rare.) Yet unless the offender has the originality of Hitler, Stalin, or Amin, the crimes don't seem to be fully attributable to the individual himself. Famous political monsters have moral personalities large enough to transcend the boundaries of their public roles; they take on the full weight of their deeds as personal moral property. But they are exceptional. Not only are ordinary soldiers, executioners, secret policemen, and bombardiers morally encapsulated in their roles, but so are most secretaries of defense or state, and even many presidents and prime ministers. They act as office-holders or functionaries, and thereby as individuals they are insulated in a puzzling way from what they do: insulated both in their own view and in the view of most observers. Even if one is in no doubt about the merits of the acts in question, the agents seem to have a slippery moral surface, produced by their roles or offices. This is certainly true of several American statesmen responsible for the more murderous aspects of policy during the Vietnam war. Robert McNamara is president of the World Bank. McGeorge Bundy is president of the Ford Foundation. Elliot Richardson was secretary of defense under Nixon during the completely illegal bombing of Cambodia which went on after the Vietnam peace agreements were signed. He then became attorney general and was widely acclaimed for resigning that office rather than comply with Nixon's request that he fire Archibald Cox for demanding the White House tapes. His highly selective sense of honor has served him well: he has since been ambassador to Britain, secretary of commerce and ambassador at large, and we shall hear more of him. Kissinger is of course a highly esteemed figure, despite the Christmas bombing of 1972 and all that preceded it. The judgments I am presupposing are controversial: not everyone agrees that American policy during the Vietnam war was criminal. But even those who do think so may find it hard to attach the crimes to the criminals, in virtue of the official role in which they were committed. Few old anti-war demonstrators would feel more than mildly uncomfortable about meeting one of these distinguished figures, unless it was just because we were unaccustomed to personal contact with anyone as powerful as the president of the World Bank. There is, I think, a problem about the moral effects of public roles and offices. Certainly they have a profound effect on the behavior of the individuals who fill them, an effect partly restrictive but significantly liberating. Sometimes they confer great power, but even where they do not, as in the case of an infantryman or police interrogator, they can produce a feeling of moral insulation that has strong attractions. The combination of special requirements and release from some of the usual restrictions, the ability to say that one is only following orders or doing one's job or meeting one's responsibilities, the sense that one is the agent of vast impersonal forces or the servant of institutions larger than any individual—all these ideas form a heady and sometimes corrupting brew. But this would not be so unless there were something to the special status of action in a role. If roles encourage illegitimate release from moral restraints it is because their moral effect has been distorted. It will help to understand the distortion if we consider another curiosity of current moral discourse about public life: the emphasis placed on those personal restrictions that complement the lack of official restraint—the other side of the coin of public responsibility and irresponsibility. Public figures are not supposed to use their power openly to enrich themselves and their families, or to obtain sexual favors. Such primitive indulgences are generally hidden or denied, and stress is laid on the personal probity and disinterest of public figures. This kind of personal detachment in the exercise of official functions is thought to guarantee their good moral standing, and it leaves them remarkably free in the public arena. No doubt private transgressions are widespread, but when they are inescapably exposed the penalty can be severe, for a delicate boundary of moral restraint that sets off the great body of public power and freedom has been breached. Spiro Agnew will never be head of the Ford Foundation. The exchange seems fairly straightforward. The exercise of public power is to be liberated from certain constraints by the imposition of others, which are primarily personal. Because the office is supposedly shielded from the personal interests of the one who fills it, what he does in his official capacity seems also to be depersonalized. This nourishes the illusion that personal morality does not apply to it with any force, and that it cannot be strictly assigned to his moral account. The office he occupies gets between him and his depersonalized acts. Among other things, such a picture disguises the fact that the exercise of power, in whatever role, is one of the most personal forms of individual self-expression, and a rich source of purely personal pleasure. The pleasure of power is not easily acknowledged, but it is one of the most primitive human feelings—probably one with infantile roots. Those who have had it for years sometimes realize its importance only when they have to retire. Despite their grave demeanor, impersonal diction, and limited physical expression, holders of public power are personally involved to an intense degree and probably enjoying it immensely. But whether or not it is consciously enjoyed, the exercise of power is a primary form of individual expression, not diminished but enhanced by the institutions and offices on which it depends. When we try, therefore, to say what is morally special about public roles and public action, we must concentrate on how they alter the demands on the individual. The actions are his, whether they consist of planning to obliterate a city or only firing in response to an order. So if the moral situation is different from the case where he acts in no official capacity, it must be because the requirements are different.

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  Market Approaches to the Measurement of the Benefits of Air Pollution Abatement

  Daniel L. Rubinfeld

  This paper summarizes some recent evidence concerning the nature of air-pollution-control benefits that can be obtained from property-value data and assesses the theoretical and empirical difficulties that are inherent in such studies. Despite the rather substantial list of complexities involved, these recent results are quite promising from a policy viewpoint. Not only are quantitative estimates of the benefits of reductions in air pollution concentrations obtained, but more important, quantitative estimates of the sensitivity of the results to some of the underlying assumptions are also available. As a consequence, policy makers should have sufficient perspective to make proper use of the numbers that are available. Even a crude guess about the facts, with the appropriate caveats, should be more useful than a guess based purely on whim. This guarded optimism must be qualified in one important respect, however. The results of the study are discouraging in that they suggest that property-value studies are likely to fail at providing policy makers with a list of benefits associated with the reduction of concentration levels of individual pollutants. Further information is likely to be necessary if reasonable guesses are to be made along these lines. The organization of this paper is as follows. The first section discusses in some detail the conceptual issues involved in the market studies. An examination of the extent to which property-value studies can be utilized to estimate individual households’ willingness to pay for both small and large improvements in air quality in one urban area and throughout the United States leads into an analysis of the conditions under which wage-rate differentials can be used to estimate benefits and the relationship between the wage-rate and property-value approaches. The second major section considers the empirical results of property-value studies. Rather than reviewing a long list of studies that are not comparable, the section provides a focus by concentrating on the recent analysis of a data set for the Boston metropolitan area. This focus allows estimates to be obtained for the magnitude of some of the biases that arise in the property-value studies. The objective is to obtain some reasonable statistical bounds for the property-value-related benefits of an improved environment and to see to what extent these benefits can be attributed to improvements in specific pollutant levels. The final section summarizes the major conclusions.

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  Judging the Imponderables of Environmental Policy

  Richard B. Stewart

  This essay will examine court decisions reviewing the federal Environmental Protection Agency’s implementation of the clean Air Act as an occasion for exploring some more general issues of environmental policy and the role of the courts in their resolution. The first section of this essay reviews the relevant objectives of environmental policy. Next, Congress’ disposition of these objectives in the Clean Air Act is examined, with particular emphasis on its efforts narrowly to constrain administrative discretion in implementing environmental policy. The third section of the essay traces the course of judicial review under the Clean Air Act. The allocation of responsibility among Congress, court, and agency and the courts’ “quasi-constitutional” role in environmental policy are discussed. The concluding section evaluates, in the context of environmental policy, the role of reviewing courts in a mixed economy in which administrative agencies play a major role.