Monthly Archives: October 2009
Oct 27, 2009 Adrian Vermeule
Itzhak Gilboa is a prominent economist who has made large contributions to decision theory, including the theory of decisionmaking under uncertainty (as opposed to risk) and the use of case-based or analogical strategies of reasoning, both of which are important topics for legal theory. In this unpublished paper, Gilboa offers a relatively informal and accessible overview of conceptual and empirical problems in and with decision theory. Gilboa writes as a sympathetic and informed critic from within, rather than a hostile critic from without, which gives his analysis all the more weight.
Gilboa provides an introduction to five theoretical questions currently troubling the field: the status and nature of the rationality assumption, the meaning of “probability” and the limits of the Bayesian approach to probability, the meaning of “utility” and the relationship(s) between utility and notions such as well-being and happiness, the choice between rules and analogies as strategies of reasoning, and the problem of group decisionmaking, including the key question whether and when groups make better or worse decisions than the individuals who constitute them (“the wisdom of crowds” versus “the madness of crowds”). All five sections are highly illuminating, but I will discuss only one, which is Gilboa’s treatment of probability and uncertainty. The issues are central for legal and political decisionmaking, in which information costs are high and experiments – natural or otherwise – are usually unthinkable, so that certainty is rare.
Gilboa starts with the question “will the U.S. President six years from now be a Democrat?” (p. 8). Who knows? This seems a good case in which to admit that there is such a thing as genuine uncertainty, as opposed to quantifiable probabilities (risk). If you are exceptionally self-confident and have a clear probability estimate for this example, you might try Jon Elster’s famous question whether “Norway in the year 3000 will be a democracy or a dictatorship.” Uncertainty is real but, as Gilboa notes (p. 8), the Bayesian approach to probability that reigns in economics prohibits agents from simply confessing ignorance. Rather the agents are constrained to provide a subjective probability for the event in question, even if only an implicit subjective probability elicited by an experimenter who offers the subject a series of bets over alternatives.
Insofar as normative decision theory is concerned – thus putting aside the massive body of positive work, in psychology and behavioral economics, on whether agents do in fact behave in a Bayesian fashion — there are at least three related problems with the Bayesian approach. (1) In Gilboa’s words, “for many events of interest we simply do not have enough data to generate probabilities” (p. 11). (2) Subjective probabilities, even if generated, may lack any epistemic standing or warrant. As Cass Sunstein has been known to say, his dog Perry seems to attach subjective probabilities to various events, probabilities that are wildly off the mark. (3) Pragmatically, even if an agent could be induced to vomit forth a subjective probability estimate about the nature of the Norwegian political regime in the year 3000, “would anyone even contemplate acting on the basis of this numerical magnitude?” (Jon Elster, Explaining Technical Change (1983), p. 199).
In light of these problems, why are so many economists (and the rationalist political scientists who adopt their methods, with a lag) wedded to the Bayesian approach? Its basic appeal, according to Gilboa, is that it is mathematically tractable and elegant, even if it is often not true (p. 9-10). I would merely add that the Bayesian approach makes it easier to standardize graduate training in economics and rationalist political science and easier for the average graduate of such programs to produce “results.” In reality, however, many of these results are spurious. The Bayesian approach makes perfect sense for some decision problems, such as searching for consumer goods in a static market, but is a misfit for other problems, such as choosing climate change policies or counterterrorism policies.
Gilboa calls the Bayesian approach an “ideological and almost religious belief” (p. 9), observes that “the popularity of the Bayesian approach in economics is an interesting sociological phenomenon” (p. 8), and says “I do not think that there exists any other field in which Bayesianism is so overwhelmingly dominant, or in which it is practiced with such generality, as in economic theory” (p. 8). My own impression, which is worth almost nothing compared to Gilboa’s, is that the best economists have become more hospitable to genuine uncertainty in recent years, perhaps in part as a result of the implausibility or conspicuous failures of risk-based modeling in the Long-Term Capital Management debacle and in the economic collapse of 2008. Doubtless, however, it will take a generation or so for the new open-mindedness of the best economists to spread widely within the discipline and beyond.
Gilboa’s master impulse, which pervades the paper, is to urge an eclectic approach to controversies in and about decision theory. The eclectic theorist chooses tools and assumptions to fit the nature of the problem at hand. This can seem opportunistic, but it is superior to the ideological cast of a great deal of work in the rationalist vein, in which the problems are stretched or trimmed so that they can be worked upon with a given tool, to which the analyst is passionately attached. The eclectic analyst is promiscuous, even cold-hearted; she does not fall in love with any of her instruments but exploits them all indifferently, as occasion requires. Or so I interpret Gilboa’s admirable view that “[d]ecision theory should therefore retain a degree of open-mindedness, allowing for the possibility that different models and even different basic concepts be used in different problems” (p. 28).
Oct 27, 2009 Pat Gudridge
Kurt Lash starts with a well-known, seemingly minimalist reading of the Ninth Amendment’s content, maybe James Madison’s own. Whatever rights we conclude the text of the United States Constitution recognizes are not the only rights extant – however originating – and constitutional interpretation should proceed consistently, acknowledge somehow these other rights. “Other rights,” Lash thinks, include collective rights of self-government – the power of people, institutionalized in various ways, to decide for themselves the substance of the particular rights and duties organizing their legal relationships. The Ninth and Tenth Amendments therefore appear to overlap, not just because of the accident of their identical concluding references to “the people,” but because, read together, they describe a joint specification of proper approaches to reading the remainder of the United States Constitution itself: specifications (“enumerations”) of rights and powers should be read as limited – their text should be read restrictively – in order to leave space for “other rights,” including the specifying power to define or not define particular rights and duties. This last proposition, Lash asserts, applies to the Fourteenth Amendment in the same way that it does to any other federal constitutional specification of rights. It may be that this amendment in several ways restricts the ability of state governments and peoples to define individual rights and duties, but it does not deny the primary ability of governments and peoples to engage in rights defining exercises, and therefore the restrictions that the Amendment sets should be read in as limited a way as possible in order not to render meaningless the possibility of continuing self-government.
This account of the Ninth Amendment and its implications may or may not fit well with the thinking of the drafters or ratifiers of the Amendment, the companion Tenth Amendment, and the Fourteenth Amendment. Randy Barnett and Kurt Lash debate the matter in an exchange published in the same issue of the Stanford Law Review in which Lash’s principal discussion appears. For present purposes, however, the key fact is the remarkably forceful bias that the juxtaposition of Lash’s Ninth Amendment and Tenth Amendments generates: not just suggestive of much of the signal jurisprudence of the late-Rehnquist Supreme Court; not just suggestive of an account of the motivation – the preoccupation with the idea of limitation – evident on the face of the Supreme Court decisions like Lochner and Hammer v. Dagenhart; but also (seemingly – Lash himself does not push his argument very far in this direction) a point of departure for a defense of the Court’s famous Fourteenth Amendment limiting opinions in its Slaughterhouse and Civil Rights decisions.
Lash confirms Akhil Amar. The juxtaposition of constitutional provisions and consequent attention to their interplay is a richly rewarding mode of identifying possible models of overarching constitutional schemes. And because Lash carefully separates his intratextual work per se from his accumulations of historical data points, it is especially easy to see how his own juxtapositions might be further multiplied – with perhaps surprising results. In this regard, it is important to consider carefully the role that “construal” – interpretation, construction, reading, etc. – plays in Lash’s argument. The Ninth Amendment is understood as describing an approach to interpretation that, when coupled with the idea of collective rights of self government suggested by the Ninth and Tenth Amendments, grounds the larger program of restrictive reading of the rest of the Constitution. But other constitutional provisions fix interpretative biases – not just the Eleventh Amendment (as Lash notes) but also the Fourteenth Amendment, for example. Professor Amar, of course, famously argues that the Fourteenth Amendment prompts a rereading of the Bill of Rights as a possible sometime specification of privilege or immunities of national citizenship, privileges or immunities now enforceable against state governments.
But the amendment’s due process and equal protection clauses also oblige state officials to assess the content of state law through constitutionally supplied interpretive lenses – “due process” and “equal protection” – that mark as problematic departures from usual emphases or priorities or gaps in otherwise encompassing schemes specifying rights and duties and the like. These departures or gaps may be the result of the failure of state officials to take seriously federal constitutional or statutory commitments (in this regard the Fourteenth Amendment clauses echo the Supremacy Clause) or shortfalls may originate in failure to carry through commitments owing to state law itself. In this regard, therefore, the Fourteenth Amendment due process and equal protection clauses are themselves versions of Lash’s “other rights” strictures – but now exhorting interpreters of state law. These officials must read state law in ways that give force to federal law and to their own law itself along lines suggested by the Fourteenth Amendment provisions, in the process therefore giving those provisions themselves sufficient weight. Any reading of the Fourteenth Amendment, as a result, must begin Lash-like with the interpretive project that the amendment poses for state officials, and therefore also must necessarily specify the substance of the concerns that the amendment would have officials take seriously. This specification will in turn fix the relationship of the Ninth, Tenth, and Fourteenth Amendments. The space left for “other rights” – and thus the legislative jurisdiction (as it were) left to self government – will be residual: whatever organization of rights and duties (or the like) that does not fall within Fourteenth Amendment due process and equal protection concerns.
This conclusion is perhaps consistent with Kurt Lash’s own account and at least some of the Supreme Court thinking he highlights. The idea that the Fourteenth Amendment, where pertinent, sets aside ordinary constitutional expectations was, of course, an early contribution of Justice Rehnquist’s, and the Supreme Court’s later debates about congressional power to enforce the Fourteenth Amendment often quickly moved from musings regarding federalism as such to considerations of the substance – as the Court understood it – of due process and equal protection norms. Now-Chief Justice Rehnquist once more figured prominently. But if we add to the mix the Article VI Supremacy Clause (not much considered in Professor Lash’s own discussion), another interpretive point of departure emerges. “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” State judges, plainly, must read state law with an eye to the content of federal law, and seek to avoid conflicts either by restrictively interpreting the content of state law or by simply treating state law as inapplicable insofar as it overlaps federal law. The Ninth Amendment, as Lash understands it, is not inconsistent – it simply obliges interpreters of federal constitutional grants of legislative power to avoid overly broad readings. But this means – for Ninth Amendment purposes just as for Supremacy Clause purposes – the first order of business must be arriving at some sense of what are the concerns prompting the Constitution’s affirmative extensions of legislative authority. Neither the state judicial work of avoiding conflict nor the Ninth Amendment work of avoiding overbreadth can start without this analytically prior inquiry. The Ninth (and also Tenth) Amendment analysis is therefore once more derivative.
Constitutional interpretation, Kurt Lash reminds us, is crucially bound up with the question of which constitutional provisions will be treated as shaping the reading of which others. We knew that already, no doubt. But his particular demonstration of the results that appear to follow if the Ninth and Tenth Amendments are read together is a tour de force. Of course, within the larger project, including not only juxtapositions but also determinations of precedence within and across juxtapositions, interplay becomes also a show of force. Lash’s own effort works by surprise – we are struck by how large an impact substantively his austere reading of the Ninth Amendment proves to have given only a few subsequent steps. But other arrangements of constitutional provisions might draw upon other reactions, other interpretive stimulations – horror, suspicion; alternatively, a sense of decency, fellow-feeling, justice; ultimately, perhaps, a sense of resolve. It is the great virtue of Lash’s analysis that it is provocative not only in its immediate conclusions, but in the glimpse it affords of its variants – it is itself irreducibly multiple.
Cite as: Pat Gudridge,
Other Rights, JOTWELL
(October 27, 2009) (reviewing Kurt T. Lash,
A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review 895 (2008)),
https://conlaw.jotwell.com/other-rights/.
Oct 26, 2009 Michael Froomkin
Section Editor
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Patrick O. Gudridge
Associate Dean University of Miami School of Law
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Randy E. Barnett
Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center
Professor Rebecca Brown
Newton Professor of Constitutional Law at the University of Southern California Law
Professor Barry Friedman
New York University School of Law
Professor Heather Gerken
J. Skelly Wright Professor of Law at Yale Law School
Professor Paul Horwitz
The University of Alabama School of Law
Professor Vicki C. Jackson
Associate Dean (Transnational Legal Studies);
Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center
Professor Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair
at the University of Texas at Austin School of Law
Professor Louis Michael Seidman
Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center
Professor Mark Tushnet
William Nelson Cromwell Professor of Law at Harvard Law School
Professor Adrian Vermeule
John H. Watson, Jr. Professor of Law at Harvard Law School
Oct 19, 2009 Michael Froomkin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
Jotwell will help fill that gap. We will not be afraid to be laudatory, nor will we give points for scoring them. Rather, we will challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We will be positive without apology.
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