Originalism Archives - Columbia Law Review

Introduction For over a hundred years, American law has been characterized by an explicit reliance on fields of learning outside of law to examine and criticize governing legal rules, and thereby bring about reform in those rules. Rejecting the notion that law is an independent, self-contained system, this external examination of law—leveraging a perspective from outside law to offer a critique of legal rules—has and continues to bring about salutary changes in law. Such an approach to law is neither only American nor particularly new.[footnote]English philosopher and jurist Jeremy Bentham, for example, was doing this long before in England. See, e.g., Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (J.H. Burns & H.L.A. Hart eds., Clarendon Press 1996) (1789) (outlining Bentham’s moral theory of utility as a possible basis for the English penal system). For contemporaneous criticism of Bentham’s approach, see John Stuart Mill, Bentham, in Mill on Bentham and Coleridge 39, 39–98 (F.R. Leavis ed., 1980).[/footnote] Nevertheless, its explicit recognition and use since around 1900 in the United States,[footnote]Professor Herbert Hovenkamp, for instance, suggests legal academics first began to incorporate economic concepts into their thinking about the law during the 1880s in the Progressive Era. See Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 993 (1990).[/footnote] and its gradual acceptance in other countries that for a time and for important reasons adhered to a view of law as a self-contained and unchanging system,[footnote]For example, for a discussion of the historical reluctance of Italian legal scholarship to adopt this view, see Guido Calabresi, Two Functions of Formalism: In Memory of Guido Tedeschi, 67 U. Chi. L. Rev. 479, 481–82 (2000) (discussing especially how this reluctance was used to counter Fascist-sponsored changes in the law).[/footnote] has been the dominant form of legal scholarship in the last century.[footnote]For an overview of the origins of “Law and . . .” and its relationship with other approaches to legal thought, including doctrinalism, legal process, and law and status, see generally Guido Calabresi, An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of Body Parts, 55 Stan. L. Rev. 2113 (2003) [hereinafter Calabresi, Legal Thought].[/footnote] Not surprisingly, the criticisms of existing law and the proposals for reform derived from the use of outside fields have had their effect on lawmakers. Whether from the perspective of legislatures enacting statutes, administrative agencies drafting regulations, or, perhaps most dramatically, the courts, what outside fields have suggested the law should be has had and continues to have significant effect. And, by and large, outside fields are a good influence on law, as worn-out rules, based on past power relations and even plain incorrect judgments, have been overcome. Indeed, I have been a strong proponent and employer of one outside field, economics, as a basis for advocating for legal reform.[footnote]See, e.g., Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis 15 (1970) [hereinafter Calabresi, The Cost of Accidents] (determining the goals of the system of accident law by discussing “what systems are best suited for dealing with combinations of goals, and what systems are most suitable in areas where one goal predominates” through a Law and Economics lens); Guido Calabresi, The Future of Law & Economics: Essays in Reform and Recollection 17 (2016) [hereinafter Calabresi, Future of Law and Economics].[/footnote] That said, looking at law from the standpoint of any given outside field—what I call a “Law and . . .” approach—is not without its perils. And it is on two of these that I would like to focus. The first derives from a confusion between the role of the legal scholars who develop these outside fields and the role of lawmakers. The second, which will be the principal topic of this Lecture, is the possibility that, attracted to outside fields as a cure for law’s ills, law forgets to question the validity of theories developed by outside fields. And, in doing so, law overlooks that much as it can use outside fields to question existing paradigms in law, law can and should also force outside fields to question their own underlying assumptions. Let me address briefly the first of these perils. When scholars, of whatever field, write articles that seem to demonstrate that existing law is incorrect or even immoral, the answer of the lawmaker should often be: “Perhaps, but let’s move slowly.” You have heard it said that lawmakers should “let justice be done though the heavens fall.” But that is nonsense. A lawmaker, whether a judge, or legislator or an administrator, who caused the heavens to fall would be kicked out, and extremely quickly. Scholars, the developers of the “Law and . . .” theories I will be discussing, instead have the job of writing, the duty to say, what they believe to be true and to do so, “though the heavens fall.” They can and must do so, precisely because lawmakers may and usually read such scholarship with skepticism and caution. The heavens don’t fall, and the scholar can write what might cause the heavens to fall, because the lawmaker in the first instance says “it sounds good, but he never ran anything, or she never met a payroll.” Law (and hence lawmakers) is and should in this sense be conservative—not in an ideological sense of the word—but in the sense of moving slowly.[footnote]Much in the same way as some argued that formalism or doctrinalism was “conservative,” not in an ideological sense, but in its reticence to embrace change. See Calabresi, Legal Thought, supra note 4, at 2116. And, indeed, “Law and . . .” arose, in part, as a response to the perceived inertia of formalism. Id. at 2119.[/footnote] The fact that major changes in law—even if correct, and so demonstrated to be by scholars of fields outside law—are deeply disruptive of people’s lives is a very good reason for law to react to what such scholars have written with caution. When lawmakers act too rapidly they may do egregious harm, even if in the long run radical change is warranted. Scholars often don’t like the fact that wise lawmakers treat their work skeptically. They don’t realize that their freedom to write and propose radical change exists exactly because they are often, in the first instance, ignored. My own reaction—when some of my early writings in Law and Economics and Torts were accepted, and quickly, by courts—was the opposite. I thought then, and think now, that what I wrote was correct. But I worried that too early and quick adoption of what I proposed might do more harm than good. This, then, is the first peril of the “Law and . . .” approach. Lawmakers, even if convinced that the outside field has correctly demonstrated errors in the law, must move to update the law slowly so that the heavens do not fall. Too often, lawmakers move too fast. Law must adapt and change in response to proper criticism, but it must do so always keeping in mind the disruptions that change—even in some sense ultimately just change—brings about. My main focus in this Lecture, however, is on the second peril of law’s reliance on fields outside of law. That is, that law and lawmakers must always question the validity of the outside field’s theory. The fact that the law does not conform to the outside theory may be because the law is wrong. But it may also be because the outside theory is incomplete, limited, or insufficiently nuanced.[footnote]Unquestioning application of an outside field’s theory or methods, in other words, should not itself become another instance of “mechanical jurisprudence.” Roscoe Pound, Mechanical Jurisprudence, 8 Colum. L. Rev. 605, 606–07 (1908) (describing the need for scholars continually to question the “unsound conclusions” of “departed masters,” even when their methods appear sound).[/footnote] “Law and . . .” should operate as a two-way street, leaving no paradigm, whether in law or an outside field, unquestioned. This peril is the same, I think, regardless of whether the outside field is economics, philosophy, or history—to choose three particularly dominant “Law and . . .” approaches.[footnote]My treatment of these three disciplines as separate iterations of “Law and . . .” reflects the specialization and disaggregation of “Law and . . .” into specific fields, like Law and Economics or Law and Philosophy. By contrast, in the early twentieth century, advocates of “Law and . . .” invoked a variety of different disciplines (albeit primarily in the social sciences) indifferently to make claims about the law. In fact, one of the claimed strengths of “Law and . . .” was its potential for bringing generalized interdisciplinarity into law. See Calabresi, Legal Thought, supra note 4, at 2120.[/footnote] The manifestation and effect of this peril on legal rules—its “legal process” operation—differs according to the particular outside field employed.[footnote]By “legal process” operation, I refer to the choice of which institutional actor should react to an outside field’s suggestions that existing legal norms be amended. See id. at 2123.[/footnote] The recognition of the peril, however, has not been as explicit as to all of these “Law and . . .” approaches. In this Lecture, I will begin by discussing this second peril as it has manifested itself in Law and Economics. I do this as it is here that the peril has been most clearly criticized.[footnote]Perhaps because of the close relationship between the two fields, or perhaps because of the writings of as great a scholar as Economist and Professor Ronald Coase, economics has also been more conscious about the implications of Law and Economics for economics as a discipline. See, e.g., Ronald Coase, Economics and Contiguous Disciplines, 7 J. Legal Stud. 201, 210 (1978).[/footnote] I then move on to examine what I believe to be the same, but perhaps less recognized, peril in Law and Philosophy, and Law and History.

Originalism

THE PROMISE AND PERIL OF “LAW AND …”

ARTICLE II VESTS THE EXECUTIVE POWER, NOT THE ROYAL PREROGATIVE