Foreward.

• Date: 01 May 1999
• Author: Rosen, Jeffrey

America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox. Both Democrats and Republicans professed a rhetorical commitment to the rule of law while revealing a deep pessimism about the ability of courts, legislatures, or even citizens to transcend their biases and to converge, through deliberation, on impartial and democratically acceptable outcomes. The simplistic Supreme Court decisions that precipitated the impeachment -- in particular, Morrison v. Olson,(1) upholding the Independent Counsel law, and Jones v. Clinton,(2) denying the President temporary immunity from Civil suits while in office -- were based on the principle that the President should not be above the law, a principle repeatedly invoked by both parties in the House and the Senate; but the content of the congressional deliberations revealed an unsettling cynicism about the malleability of legal argument. Both sides embraced interpretive methodologies that they had rejected on previous occasions, as the President's accusers praised the virtues of a living Constitution while the President's defenders insisted on the importance of original understanding. Perhaps most jarringly, after declining to engage each other's arguments, the two parties in the House and Senate divided more or less along party lines. The partisan character of the votes on the articles of impeachment seemed to reinforce the partisan character of law itself.

There is nothing new, of course, about the insight that judges and jurors sometimes find it hard to transcend their own biases, and that courts should hesitate, for this reason, to usurp the decisions of the democratically accountable political branches. This has been the refrain of political and academic critics of the Warren Court ever since the 1950s, and it has now transformed our legal culture. But then something odd happened. At the very moment that judges began to agree about the virtues of deference to the political branches, legal scholars began to wonder whether the political branches deserved all that much deference after all. Public choice theory called into question the claim that self-interested legislators were well-equipped to reflect the will of the majority. The New Chicago School of Social Norms pointed to the ways that norms can influence behavior more effectively than law can, and ways that norms and law can influence each other, sometimes in perverse ways. Critical race and feminist theories insisted that objective truth is unknowable because we are all prisoners of racially, sexually, and economically determined perspectives that can never be transcended through reasoned deliberation. (And contemporary pragmatists added to the rampantly subjectivist atmosphere.) And an explosion of federal lawmaking during the past decade raised questions about whether Congress deserved deference because of its purported ability to transcend factionalism, as it federalized great patches of regulatory authority, often for the cheapest symbolic reasons, that had previously been left to the states.

Many of the books reviewed in this volume reflect the growing skepticism of scholars not only with judicial policymaking but also with policymaking by the political branches and the people themselves. To take just a small sample, libertarians such as Richard Epstein, in Principles for a Free Society,(3) Randy E. Barnett, in The Structure of Liberty,(4) and Peter W. Huber, in Law and Disorder in Cyberspace,(5) explore the ways that common law baselines may regulate social and economic behavior more effectively and fairly than statutory or administrative law. Other scholars, such as James B. Jacobs and Kimberly Potter, focus on the unanticipated effects of laws that create new federal crimes; in Hate Crimes: Criminal Law & Identity Politics, Jacobs and Potter argue cogently that in addition to threatening First Amendment values, federal hate crimes laws are often violated by the groups they were designed to protect and may inflame prejudice rather than eradicate it.(6)

Even the popular initiative process, embraced during the Progressive era as the purest expression of direct democracy, is now being questioned for its undeliberative quality. In Lawmaking by Initiative: Issues, Options and Comparisons,(7) by Phillip L. Dubois and Floyd Feeney, and Paradise Lost: California's Experience, America's Future,(8) by Peter Schrag, the authors examine the political process failures that, in their view, make initiatives in the 1990s poor barometers of popular will: voters often do not understand deceptively drafted, overly complicated ballot questions; professional signature collectors are more concerned with efficiency than measuring the breadth or depth of voter preferences; low turnout makes initiatives-vulnerable to capture by special interests; and piecemeal decisionmaking entrenches shortsighted policy choices. In a vivid illustration of these problems, William G. Bowen and Derek Bok, in The Shape of the River, note that some supporters of Proposition 209 in California had second thoughts after the University of California responded to the anti-affirmative action initiative in ways that they hadn't anticipated. In particular, the supporters were troubled by the impulse to maintain racial diversity without racial preferences by redefining the central mission of the research university in a way that lowers standards for all students.(9)

The new skepticism about the unanticipated effects of judicial and legislative policymaking seems to be reflected in a turning away from grand theory and toward empirical analysis. In Judicial Policy Making in the Modern State: How the Courts Reformed America's Prisons,(10) Malcolm M. Feeley and Edward L. Rubin insist that judicial policymaking is a separate enterprise from judicial interpretation, and they use the prison reform litigation cases of the 1960s and 1970s to offer a sociological description of what, precisely, judicial policymaking involves: how judges created legislative rules for governing America's prisons; how their choices were constrained by moral and political background norms; how successfully the rules were implemented; and how the perceived success of the reform movement in replacing torture with efficiency has put new social pressures on prisons that they are, in many respects, ill-equipped to bear. In her review of Feeley and Rubin's book, Margo Schlanger suggests that scholars might cast further light on the subject by moving even closer to the ground: in addition to asking how judges make policy, she suggests, scholars of judicial policymaking should also ask how courts function as an arena of policy disputation by examining the realities of litigation, including pretrial settlements and the strategic incentives of counsel, that shape constitutional outcomes at least as dramatically as judges do. In an age when top-down theorizing is increasingly unfashionable, bottom-up empirical analysis seems increasingly appealing.

Perhaps the most revealing indication of the pragmatic temper of legal scholarship today is the growing impatience with constitutional theory even among constitutional theorists themselves. And in this regard, no book published this year is more representative than Cass Sunstein's One Case at a Time: Judicial Minimalism on the Supreme Court.(11) With his new book, Sunstein has joined a distinguished line of liberal constitutional theorists who have defended the democratic value of judicial modesty. Although some of his earlier work had embraced less diffident visions of constitutional interpretation, he now places himself squarely in the tradition of Felix Frankfurter and his disciple, Alexander Bickel, who famously advocated the "passive virtues" of declining to decide cases in certain circumstances so as to promote democratic debate. Sunstein's prescription is more comprehensive than Bickel's, which makes it uniquely well-suited to an age that has lost its constitutional faith. Like the Unitarian who believes that there is at most one God, Sunstein urges the Supreme Court to be self-mortifying about the limits of its knowledge. It should refuse to decide certain cases and agree to decide other cases as narrowly as possible, so as to preserve...