The Latest Obamacare Challenge

I was not a fan of the argument that the individual mandate at the heart of Obamacare somehow was beyond the power of Congress to impose. But it at least was interesting and thought-provoking, even if ultimately unpersuasive. That it was partially accepted by the Court, though I maintain only in dicta, was unfortunate.

The latest assault on the Act has no such redeeming qualities. While I can appreciate academic curiosity over the statutory language – it would make for fun debate in hallways, the faculty lounge, or the classroom – the challenge here is, for all practical purposes, positively nihilistic. To tell you the truth, I don't think I can put the problem as well as the challengers themselves did:

The Government tries to make the statutory issue seem complex, but it is not. Only three ACA provisions need to be understood. Section 1311 instructs that states “shall” establish Exchanges. Section 1321 clarifies that in case of a state’s “failure to establish [an] Exchange,” HHS “shall ... establish and operate such Exchange within the State.” And then the Act grants subsidies for coverage “enrolled in through an Exchange established by the State under section 1311.” Any English speaker reading those provisions would immediately understand that if a state “fail[s] to establish [an] Exchange” and taxpayers instead enroll through an Exchange established by HHS under § 1321, no subsidies are authorized.

(Citations omitted.) Here is where we agree:

  1. The issue is not complex.
  2. Only three ACA provisions need to be understood. (Though others make the challengers' argument look even worse.)
  3. The statute's meaning can be immediately understood by reviewing the text. (Though understanding the context and history of Obamacare makes you wonder if you've been living in the same world as those who claim seriously to believe the story the challengers tell.)

What they think: that "such Exchange" clearly and unambiguously does not count as a "State Exchange" but instead means some other kind of exchange that is subject to none of the provisions relating to state exchanges. In particular, the participants in "such Exchanges" would receive none of the subsidies the Act provides for participants in "State Exchanges", thereby – as these very same lawyers have previously argued – undermining the entire statutory scheme. (For reasons relating to something called the Chevron doctrine, if the language is at all unclear, the government's interpretation should win.) Their prize for this feat of language wrangling would be, by 2016, the denial of insurance subsidies to about seven million people, with various and horrible ripple effects, reversing the progress we've made on the problems of and caused by the uninsured. All this because of an unwillingness to accept what the word "such" very clearly means, and, worse yet, because of a bizarre refusal to concede that it's at least unclear that a federally operated exchange in a state is not a state exchange within the meaning of the Act.

It's bad enough that the Supreme Court agreed to hear this case. But if somehow textualism were used to strike down the heart of Obamacare on these grounds, it would not only turn the Supreme Court into a laughingstock, it would denigrate textualism itself as patently not the serious, structurally-focused, and ideologically neutral method its defenders have struggled to claim it to be. For a more detailed argument, one that this challenge does not deserve, read Abbe Gluck's thorough analysis.

No one has to be a supporter of Obamacare, single-payer, or any other kind of health care reform. No one has to give up arguing to adopt another approach. Indeed, there may be valid legal challenges to aspects of the ACA. But just because you can typeset an argument to look like a brief, just because you really hate Obamacare, just because language could, in the abstract, be construed to say something it obviously does not mean, and just because, perhaps because of the confluence of these reasons, you have come honestly to believe in the righteousness of your objection: these are not reasons to treat a fundamentally unserious argument as anything more than an amusing curiosity. Unfortunately, the stakes are high, and I'm not amused. I'm open to being shown the error of my ways. But when you place on the word "such" the weight of the health of millions of people, you better have a good argument that Congress did not mean what it and everyone else on the planet believed it meant.

Bound by Federal Law

Ours is a legal system with two sovereigns. At least, that is the often repeated principle expressed in a number of important decisions carving out zones of authority and lines of power among federal and state actors. As someone who is not a scholar of this dual sovereignty problem, often taught in law school in courses called “federal courts” or “federal jurisdiction,” the ornate body of precedent that has grown up around the obvious sources of friction between competing and cooperating governmental bodies is daunting. But the questions it is meant to answer are sometimes disarmingly simple.

One such simple problem has arisen from the Supreme Court’s denials of petitions to hear appeals from lower federal court decisions striking down bans against gay marriage. These denials are not themselves “law” in the sense that all lower federal and state courts are bound by anything they might imply. But when the Fourth Circuit Court of Appeals (the court that hears appeals from federal trial courts, referred to as the federal district courts, in South Carolina, North Carolina, Virginia, West Virginia, and Maryland) struck down Virginia’s marriage ban, and the Supreme Court refused to hear the case, that decision became binding precedent for the federal district courts in the Fourth Circuit.

The simple question: Are South Carolina state officials, including judges, bound to follow federal constitutional law as interpreted by the Fourth Circuit, as they would be had the Supreme Court decided the case? To be honest, I had always assumed the answer was yes. Michael Dorf wrote confidently that the answer was no and said as much on our show (which was as good an excuse as any to try to convince Michael to take the time to hang out with us).

He is, in the important sense, apparently correct on this point. But part of me still wonders: what does it mean to be right or wrong about this kind of question? Without knowing that, we have difficulty answering some of the questions that might follow on this one, questions such as: Is South Carolina entitled to interpret the Fourth Circuit’s constitutional pronouncements as binding? Here again, Michael says no. But Steve Vladeck and Marty Lederman both say yes. (Steve’s writing elaborates on points he made in the opening minutes of his appearance on the show.) Hmmm... I explore this as an outsider to the field and will probably get a lot wrong. But, in my experience, voicing your thoughts is the quickest way to have them corrected. So here goes. And I anticipate updating this post to highlight the error in my ways.

The Law’s Surface and the “Easy” Answer

Let’s start with the position that everyone in this debate seems to take for granted: state courts are not bound or required to follow the interpretations of federal law contained in the holdings of federal courts in whose geographic area the state lies. As a relative amateur on these issues, I do not see why this is necessarily so.

Behind all of the positions on this and the ensuing questions are a single constitutional provision and some related statutes. The constitutional provision is the Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof ..., 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.

This clause means at the very least that South Carolina state court judges, and by implication South Carolina officials, are bound by federal laws, including the Constitution. And so if the Constitution forbids bans on same-sex marriage, then an attempt to prohibit such marriages or a refusal to recognize them would be unlawful and must be so recognized by any judge, federal or state.

The problem is that when the Supreme Court has not spoken, it may not be clear what exactly federal law is. The point of view Michael espouses is consistent with a position Justice Thomas took in concurrence in Lockhart v. Fretwell. In a nutshell, the idea is that until the Supreme Court has spoken, there is no authoritative interpretation of the sources of federal law and that state courts are equally empowered as lower federal courts to provide one. Here is Justice Thomas:

The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.

The argument goes, though I do not think it has been articulated plainly by the Supreme Court, that binding precedent, meaning a decision that obligates another court to rule in other cases in ways that do not contradict the necessary reasons contained within the decision, exists between courts only alongside a formally hierarchical relationship. That is, one court is bound by the decisions of another just in case the former court’s decisions are reviewable by the latter.

Let’s call this the “precedent follows supervision” theory. Now, this theory does not strike me as obviously or necessarily following from the Supremacy Clause or founding-era cases interpreting it, but let us assume it for the moment. Its truth would mean that, indeed, because state court rulings on matters of federal law are formally appealable only to the United States Supreme Court and not to lower federal courts, rulings on issues of federal law by lower federal courts are not binding on state courts.

And so, the Fourth Circuit’s conclusion that marriage bans like Virginia’s are incompatible with the Equal Protection clause of the Constitution does not require the South Carolina Supreme Court so to hold if it disagrees in a case raising the issue before it. A congressional statute could alter this state of affairs. An inverse of the Rules of Decision Act (which requires, after the famous Erie case that federal courts apply the legal interpretations of state supreme courts when confronted with issues of state law) could require state courts to follow federal decisional law, the decisions of federal courts with federal jurisdiction over the state courts’ respective geographic territories. I suppose there could be a non-textual argument that such a statute would violate general principles of federalism and state dignity, but it would not be sensible to me as anything more than an attempt at constitutionalizing a structural policy preference. (After all, under such a statute state courts could follow the lower court precedent, signal their disagreement, and forward appeals to the Supreme Court, which is, well, supreme anyway. And so I wouldn’t see the impact on even aggressive understandings of federalism as all that great.)

The states are actually divided on the question of whether they are bound, as a matter of federal law, by the precedent of the federal circuit courts of appeals in whose geographic jurisdiction they are. Some courts have cited the “precedent follows supervision” theory, but others, including maybe South Carolina, apparently reject it. See generally, pages 16-26 (which read quickly) of Colin Wrabley, Applying Court of Appeals’ Precedent. But textual or precedential justifications for the theory are hard to come by. In fact, other than general resorts to federalism, the argument seems to be mainly of the “how would this work” variety: would federal district (trial) courts’ rulings be binding, and if so, only within their limited geographic range or more widely, etc. See the single paragraph on page 27 of Wrabley’s article to see the summary. These practical concerns, though, are offset by equally weighty practical concerns on the other side: state officials might be subject to one set of rules in federal court and a different set of rules in the state court across the street. True, the Supreme Court could take up and decide such a federal-state split on issues of federal law. But so too is it easy to imagine a simplifying Erie doctrine for the state courts at the end of which would still lurk potential Supreme Court review.

Michael Dorf gave arguments for the “precedent follows supervision theory” during our show, and he later summarized them thusly, cautioning that this was not a full defense:

Congress could have authorized appeals from the state courts to the lower federal courts on questions of federal law (as stated by Justice Story in the landmark Martin v. Hunter’s Lessee); indeed, Congress perhaps even could have required state courts to follow lower federal court precedents on federal law; but there is no reason to think that Congress ever did obligate the state courts to follow lower federal court precedent; and given the Madisonian compromise (i.e., the fact that Article III leaves to Congress the decision whether to create any lower federal courts or instead to leave federal claims to be litigated in the first instance in the state courts, absent the limited original jurisdiction of the SCOTUS), the default assumption must be that state courts would be bound by federal law decisions of the SCOTUS only.

This hints in a more fulsome direction, relying on historical inferences that many might find persuasive. But I don’t know. I certainly see the argument that we in fact have coordinate systems of courts that all respond to the authoritative rulings of the US Supreme Court on issues of federal law but that otherwise leave for state courts interpretations of federal law. There are, though, at least two important caveats that set up a forum-shopping problem, among others involving uncertainty, caused by the “precedent follows supervision theory.” First, courts must generally give preclusive effect, preventing the re-litigation of claims, to cases actually decided in other courts that necessarily included the same parties. I’m being brief and rough with this point.

These systems are more porous than just that, however. Second, parties with a federal claim may move litigation from a state court to federal court, a process called removal. This process doesn’t really, or maybe even nearly, replicate the hierarchical relation that would trigger bindingness under the “precedent follows supervision” theory (see, e.g., this Note about the unanimity rule), but it does exacerbate the problem of forum shopping. If dueling interpretations of federal law are offered up by courts that parties are free to choose among, then gamesmanship in choosing courts and in choosing parties to add to the lawsuit may control the law that applies. Again, the Supreme Court can always step in to resolve these problems ex post, but that is true no matter what rule of bindingness we choose.

Were I writing on a clean slate, not only would I make circuit court rulings binding on the states in the circuit but I’d go further to rebalance the relationship between federal and state law. I might favor the elimination of diversity jurisdiction, radically cutting back on federal criminal laws (leaving more authority in the states), eliminating AEDPA deference in habeas corpus, increasing the occasions on which federal courts certify questions of law to state courts, and doing a number of other things that would help consolidate responsibility for federal law in federal authorities and state law in state authorities. The slate is not clean, but it’s not exactly covered in writing either. As usual, I basically agree with Guido Calabresi on these matters.

There is, of course, one other, exceedingly practical reason for just adopting the “precedent follows supervision” theory whatever our principles. A state supreme court faced with a federal legal question but which refuses to apply the legal interpretation of the relevant federal court would only be reversed after appeal to the Supreme Court. But it is difficult to imagine, though I guess not impossible, the Supreme Court’s deciding that the state court should be reversed for not following the lower federal court’s precedent while also refusing itself to pass on that precedent. But if it did rule on the issue to which the precedent speaks, then the state court would only be reversed if the Supreme Court disagreed with it on the issue of federal law. Whether it followed lower court precedent would be irrelevant. Upshot: unless the Supreme Court reverses without deciding the federal question, the state supreme court is in no worse a position for having refused to follow the lower federal court.

This practical reason flows from the same idea that animated the theory to begin with, that binding precedent only really exists in a hierarchical relationship. But, just in point of fact, there are many state courts that have declared themselves bound by lower federal court opinions and have operated on that assumption for quite awhile. It can be done, even it cannot effectively be (or at least is not likely to be) enforced by federal authorities.

So, would the Thomas/Dorf position be adopted in the Supreme Court in a case presenting the issue? I think it likely would, but not because it is “correct” in an uncontroversial sense. As far as I can tell, there are reasons and practical difficulties on each side of the question. Rather, it would be adopted in a decision citing general historical facts, the practical difficulties of precedent without hierarchy, and very general structural and “dignity” arguments. Fine, maybe even the more appealing argument, but hardly conclusive. That said, and to emphasize the opening caution, I’m not a federal courts scholar, and I eagerly await being put in my place by those who are.

A Further and More Controversial Position

What surprised me, and struck me as quite clever, in our conversation with Michael was the further and bolder claim: Not only is South Carolina not bound by the Fourth Circuit’s ruling, but it is required not to afford that ruling the status of binding precedent. Shockingly, at least to me, the Supremacy Clause, the very clause that gives superior status to federal law over state law, requires the South Carolina Supreme Court not to treat the lower federal court’s ruling as authoritative.

Here’s how Michael puts it in his post:

I would say that the state court’s obligation in deciding the content of federal law is to make its best efforts to determine the content of federal law, not to gratuitously outsource the job. After all, if the South Carolina courts can gratuitously decide to accept the rulings of the Fourth Circuit as definitive, then they would seem to be able to accept some other body’s determinations, like the Second Circuit’s, or the views expressed on this blog. In each case, the South Carolina courts would be violating the obligation (under the Supremacy Clause) to be bound by federal law, not somebody else’s understanding of federal law, even if that somebody else is learned in federal law.

Note that this appears to follow from the “precedent follows hierarchy” theory that would say vis-a-vis the South Carolina Supreme Court there’s nothing particularly special about the Fourth Circuit as against any other non-superior court. And, thus, to apply some other random institution’s interpretation of federal law is not yourself to apply federal law.

This position, going a step beyond the position I found questionable above, is more controversial among people who know this stuff. Steve Vladeck, for example, does not buy it for reasons of existing doctrine and good policy. Steve’s argument is that, doctrinally, the Supreme Court’s decision in Danforth v. Minnesota establishes that state courts can retroactively impose new rules of constitutional law (rules protective of criminal defendants) identified by the Supreme Court, even when the Supreme Court itself does not require these rules to be applied retroactively. Thus, state courts may, at least in this instance, decide for themselves whether to be bound by a federal law that the Court has said is not binding.

On policy, Steve writes (emphases his):

If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don’t see how that raises any kind of federal constitutional concern under the Supremacy Clause.

And in comments to Michael’s post, Marty Lederman objects:

I don’t see how the Supremacy Clause -- which merely prescribes that federal law prevails over inconsistent state law -- imposes any such “follow your own best lights”/anti-deference principle. To be sure, it, along with the adjacent oath clause, requires state judges to be “bound” by federal law -- but that’s an obligation that applies to all judges, federal, state, and local, and indeed to all government officials. That obligation doesn’t tell such judges and officers how to assess what federal law requires, let alone prevent them from relying upon the views of others in trying to most efficiently and reliably adjudicate federal questions in a complex federal system.

Michael’s responses in comments are interesting, and he has promised a follow-up blog post, one that may well make wish I’d never started this one! But these responses to his position represent my own intuitive reaction, though they are doubtlessly backed by far more extensive familiarity with case law than my own. In the end, I think we’re left trying to answer the following question:

What Does It Mean for a State to Decide What Federal Law Means?

Could South Carolina pass a statute that requires its courts to give authoritative weight to the Kentucky Supreme Court’s interpretations of federal law? Could its courts decide to do so on their own? Could it establish a South Carolina Commission of Federal Law that produced authoritative interpretations of federal law consistent with those of the United States Supreme Court but otherwise discretionary? And what exactly is federal law detached from an institution that interprets it?

The debate between people who are familiar with these kinds of issues seems to turn on whether the decision about how to decide what a federal law means is itself a question of federal law or a question of state law. Let me put that another way. Is the choice of method for determining the proper interpretation and application of the Equal Protection clause a choice constrained by federal law or by state law? I would go further, though. Even if federal law somehow controls the way in which a state court must determine the meaning of the clause for a case, in the absence of Supreme Court guidance, what exactly is this federal meta-law?

I was reminded by these questions of the concurring opinion by Justice Rehnquist in the infamous case of Bush v. Gore. There, the concurring justices found fault with what they saw as the Florida Supreme Court’s frustration of the Florida legislature’s intentions as expressed in state election statutes, in a context in which the federal Constitution specifically authorizes the manner of choosing presidential electors to be determined by the state’s “Legislature.” The concurrence stated:

[I]n ordinary cases, the distribution of powers among the branches of a State’s government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, §4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them. Article II, §1, cl. 2, provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

I have always had difficulty making sense of this. The concurring justices give an interpretation of the constitutional reference to the “direct[ion]” of a state’s “Legislature” as though state law can be definitively identified with a single institution irrespective of the state’s own rules for how such directions shall be interpreted and applied. What does a bare statute mean disconnected from the processes the state has established for applying it and determining its meaning? Where exactly is it written that a state must identify the “direction of its legislature” in a particular way? (And what is a “legislature” in the abstract?)

There is, perhaps, one constitutional source of constraint on a state’s ability to determine the content of law, whether federal or state, and that is the so-called Republican Guarantee Clause:

The United States shall guarantee to every State in this Union a Republican Form of Government ....

Perhaps this clause (but doubtlessly the questions would instead be shoved into abstract Due Process and federalism arguments) would prohibit states from alienating to other states’ courts the job of interpreting their own legislative acts or departing too much from a model of accountability that connects the determination of a law’s meaning with citizen input in ways that hew closely to the legislature-court dynamic, the dynamic that is all we really know. But such a principle, in whatever clause, could not possibly be a bar to a state’s granting interpretive authority over federal law to another court it believes is better suited or able to do so. Or, even if it feels able, the state may want to avoid the forum-shopping and instability that could accompany an intra-state conflict over the meaning of federal law. Why can a state not decide to do that? Is there a federally mandated principle of meaning-interpretation that gives non-delegable power to state courts to interpret federal sources of law? In other words, and this is the point connected to my current work, does the Supremacy Clause or the inaction of Congress in providing for lower federal court bindingness somehow carve out from the set of reasons a court uses to determine a law’s application rules of authority recognition?

I do not see how it could be so. Surely South Carolina could conclude that the meaning of federal law as it interacts with its own state law is more likely to be identified correctly by the court that specializes in that kind of question: the Fourth Circuit. I admit it could also conclude other institutions, legal or not, might be good at answering such questions and recognize them as not only very persuasive but authoritative. (Keeping in mind that the court’s decision that another court is authoritative is revisable by the delegating court.) But, as discussed above, South Carolina has many practical reasons for concluding the Fourth Circuit is the right federal court to recognize as authoritative on issues of federal law. And when it adopts as a reason for decision that the Fourth Circuit decided a federal question a certain way (such reason being characteristic of authority recognition), I do not see that as a refusal to apply federal law but as a choice among possible institutional arrangements that would carry out the task the Supremacy Clause requires.

Conclusion but Not Really

I suppose I have had trouble letting go of these questions I have no business answering because they raise the question of what it means to say something is the law and where the answer to that question is bound up with competing institutional concerns. We have data from a number of institutions and a graph of institutional information transaction (from the Framers and Re-Framers to all relevant institutions; from federal legislature to federal and state courts; from lower federal courts to the Supreme Court; from lower state courts, through the state supreme court, to the U.S. Supreme Court; porosity in removal and preclusion). And the question concerns the treatment by these institutions of the information they produce, which question really is about the sets of reasons each institution maintains. What is going here is that people view the set of information (the Supremacy Clause, earlier cases) and intuit different models of the institutional networks and intra-institutional reasons that constitute the legal system. The conclusions on particular questions result from these models.

But I’ll stop here, maybe save more for my book, because I only started this to record my thoughts in a small post. And this has taken the whole afternoon. I’m sorry, because you, dear readers who have arrived all the way here, are the ones who have suffered!

An Introduction to a Theory

This is an extremely rough draft of the first part of the project that has been consuming me and will continue to do so for the next year, at least. Sharing now, because why the hell not?

Introduction

To understand the sense in which we know anything, imagine you suddenly know nothing. From a gauzy, lifting fog emerge some primitive shapes. A rectangle. A triangle. No, it's more than those shapes but some sort of thing for holding other things vertically displaced from the lower plane from which you rise. Now you realize that it's a platform, in fact a table, because that is the name you have for things that are like this. And here, resting somehow on the rectangle that is a table, is a thicket of wavering, broken lines that just now you start to recognize as symbols, encoding thoughts, fixed on a parchment subtly rising and lowering with the random accelerations of air, the air being the invisible thing you feel and breathe.

You are waking from a cognitive void, and the world is beginning to slip into the groove of familiar forms. An awareness permeates every last sensation: These increasingly clear perceptions are given meaning only by the associations you are now recalling. There is no sense and no awakening at all without the drawing of these connections. Your brain is rebooting.

So far, you accept the flood of meanings as consciousness returns to you. The symbols crystallize into the encoded thoughts of a language you begin to understand again. And now you see that the paper carries the promise of conflict. One entity -- surely very much like you and yet not you, you assume -- claims not "to have" a thing that is "wrongly" "had" by another entity. What do these things mean?

All the shapes in this room, one by one, merge with their counterparts that exist as definitive examples in the re-innervating recesses of your brain. Books. A door. A lamp. This is the floor. That is the ceiling. Or at least this room's ceiling. This is a room, right? Does it "have" things? It has a ceiling. You are now aware that there was a complete set of thoughts and understandings that you had before you were unconscious. And you think that you will be fully awake when you have them once again. Immediately, though, you wonder whether this is so. Were you truly awake before? Will you ever completely awaken?

You turn back to the parchment. The conflict in the paper. You have this paper, because, because. Yes, because you must take sides. It is your ... job to say that the entity named Riggs -- and you decide just to assume these entities are like you with conscious and grasping minds -- is right, and the entity named Palmer is not. And now you try to grasp what it means in a world of other people to say that one of them is right and the other is not. There, near the top of the page are the words "law" and "court," reminding you that your job is to do something that will cause the group of people called a "court" somehow to use what it calls "law" to say that Riggs is correct.

Did you ever know more than this? For at this moment, as your concepts of clock, time, and deadline suddenly sharpen, you realize you must hurriedly use the nearby empty pages of parchment to speak to the court about Riggs' correctness. What will you say? Are you even sure that your former consciousness had the right idea to speak to this group of people it understood as a court? Why that group? Does the court say things? Yes, that is what all of these books on the shelf are about. They are filled with this court saying things.

You realize now that the only way you ever knew what to say to courts like this was from paying attention to these sayings. You had joined a conversation in its middle. You began to form associations between the things it said and about the attitudes of the members of the court. Were you fully aware when you did this?

Then it hits you. You come to know what to write on the blank pieces of parchment in the same way you know anything else in the world. Over time you reduce the chaos of sensory information into recognizable forms. You know the parchment in front of you is itself particular in its form, having grains you might call imperfections if measured against your idea of a parchment. The idea of a parchment, the abstract form, the thought that organizes all similar objects and that allows you the lazy freedom of thinking about reading from them and writing on them without considering each sheet as a new collection of atoms.

So too, you have come to have an understanding of a "court." Its characteristic form, its characteristic forms of input and output, and the processes you believe characterize its behavior in producing outputs, or rulings, from the many possible inputs. But now, having slumbered and awakened, you understand that your thoughts about courts, as about tables, floors, and parchments, are models you ascribe, models that can and do exist at varying levels of detail, each appropriate and helpful for answering some questions but not others. This very act of making mental models and being able to understand your senses in terms of models, this facility when carried out in cooperation with others, this is the law.

The External Description

Let us leave our groggy lawyer and take another, this time external, view of law's function. What, exactly, are people we might describe as engaged in the practice of law doing? They are, at the very least, communicating information: written laws, opinions, verbal orders, rules, and perhaps even the information implicit in enforcement actions. Law could describe the processes and ordering of these communications. "Law" describes the network of information flows and the processes of connecting inputs to outputs, such as they exist to further the cooperation of the participants. Law is necessarily a human-made system for processing and producing information.

So understood, law was our first computer. Indeed, it remains our most complex. The attitude that recoils from or too casually brushes aside this description, perhaps expressive of an innate abhorrence of humanity conceived as cold, metallic, incessant gears, misunderstands both the law and the computer. We should strive to be honest about ourselves and the abstract kingdoms of our collective imagination, the realms of the law, and try to see a little further.

"The" law at any place and time is a cultural quality of that moment. It is a description of something we are doing together now that we believe has some measure of control over how we will behave in the future. And it lays claim over an unfathomable set of possibilities, employing an equally unfathomable level of cooperation to perpetuate its operation.

What we call our law is not the simple, pre-programmed expression of a singular human will. Instead, we find ourselves governed by the constraints of the various communities of which we are a part, some recognizing one another, others strangers. For me, these include the laws of the United States and the states, local zoning ordinances, the terms of my employment , the constraints imposed by family, the norms of neighborliness, the terms of various contractual agreements, and other limitations of which I am hardly aware. We are the subjects of a cacophony of authorities, each, through these mutually allocated constraints, granting us entitlements, the negative spaces for living we call our property and liberty, and defining limitations, our duties and liabilities.

How can there be order in all this? How can law can be a field of intricately pursued purposes rather than a field of warring, coercive utterances? There are some obvious solutions: law as the commands of hierarchical combinations of officials, law as a product of hermetically separated zones of authority among lawmakers, law as "might makes right" where the most powerful lawmakers gain obedience at the expense of lesser ones. Whatever our course, we desire in all this distinct but fully realized goods: predictability, efficacy, and pluralism, among others.

And yet, in constructing this computer, what is it exactly that we ask for? What does it mean to make law and to enforce it? How should we humans act toward one another when engaging in the practice of law? Come to think of it, just what is the law, as distinct from other patterns of communication? We are each born into whatever law is naked, prepared to learn but understanding almost nothing. We join a conversation underway, and only over time do we begin to understand its vocabulary and expectations.

Stay your rolling eyes. I hope to show in this work how our constructed understandings of the realm of law are what provide concrete answers to even the most mundane disputes. This is the aim of any worthwhile thinking, to know better the actual problems we want to face, the solutions to which we otherwise tacitly assume.

To awaken in our understanding of law is to grapple with the sort of "what is law" question that has much in common with the "what is a table" question the groggy lawyer asks on regaining consciousness. The "what is law" question, however, is better conceived as the more specific questions it subsumes, all concerned in various ways with what people are doing when they do things we have come to associate with the label of "law." This struggle, in turn, will lead us to understand why and how people disagree about the law, what is primitive within the law, how we typically theorize about law, and what makes cases of disputes hard. The very first step to seeing the law in this way is to accept that many of our "understandings" about law are assumptions. To make progress we must appreciate the role of such assumptions and that we have them.

I will not argue for a principle that somehow replaces all assumptions with something more "real" or even more grounded in reality but for a theory that identifies the inevitable and crucial role that assuming, or modeling, plays in the practice of law. In sum, I claim that human beings engage in law when they exchange information (of a particular type) while having attitudes of acceptance toward a model they share of the system governing that information exchange. Importantly, no one has a single model they demand all others accept. Instead, our models of this interpersonal interchange are hierarchical and scattered, never reaching a state of complete and coherent specification. What makes law, and indeed cooperation itself, possible is that there exists a level of abstraction such that, under facts prevailing or actually anticipated, a shared model is accepted among the people cooperating.

Law, then, is a dynamic system of shared modeling among participants, where each model can be described in abstract terms of institutions, information flows, and institutional processing or reasoning. This approach fits with current understandings of how humans think about complex systems, but I also argue that it is unavoidable that what we call legal systems exist only as mutable but shared mental representations (or models). The modeling theory is superior to imperial theories of law that attempt to characterize legal systems by insisting on criteria that rely on specific behaviors, practices, people, or text to definitively identify what is law and what is not.

Our mental models of the law, like other such models, exist at varying levels of specificity. Recognizing that two people might have more or less identical high-level models of the legal system but very different lower-level models explains (a) how law can be identified by social facts, (b) why theoretical disagreement about law's content is nonetheless possible, (c) how scholarship and criticism of law come in predictable types, and (d) how seemingly substantive disagreements about law often arise from, or at least can be assimilated to, disagreements about institutional definition.

I proceed first by explaining the sorts of questions the theory is intended to answer, the now-standard questions of analytical jurisprudence. Such questions about the nature of law may seem abstract and removed from law's practice, but I argue that they are always there and that while we often proceed by assuming answers, we sometimes awaken to them and recognize that hard cases turn on them. This can be seen through a process I call "leveling up" in law, a process law students almost immediately recognize as what is "really going on" once it is pointed out.

I then explore a particular kind of model and a particular kind of regulatory problem. The problem is that of managing information and knowledge, and the model is the interconnected network of information-exchanging institutions. I introduce a standard model of information flow, processing, and resulting actions, which can be used to identify and more clearly distinguish regulatory possibilities. Since law can be described as network of information-exchanging institutions, the management of a legal system is an instance of a problem of information regulation.

I next propound a conception of law as an act of shared modeling. I argue that it is inevitable that a description of a legal system must be a mental representation equivalent to a model of institutions, information, and the institution-specific logic that connects informational inputs and outputs. This understanding of law has many consequences for practice and theory. I examine many of them ... in due time.

Tomorrow's Modern Boxes

On the very first listen, Thom Yorke's new album, Tomorrow's Modern Boxes may strike you as, well not exactly insubstantial and not exactly monotonous, but just kind of there, understated, having a continuity and momentum without clear purpose. For my part, I couldn't get over the fact that I was listening to a new Thom Yorke album that I had no idea was coming. But if you're not a fan, I can see how you might listen and wonder what all the fuss is about. It's a work that greatly benefits from repeated listenings.

Several days in, and I just keep repeating it. What seemed initially understated and perhaps even a bit aimless has proved to have remarkable qualities of cohesion and of clarity, moreso I think than any other Yorke or Radiohead album. It's not about melodies you hum, though I sometimes hum the weirdest things, but musical ideas you crave to experience again and again. Truth Ray may be the first to haunt your thoughts. At least it was for me. Its beauty is so unusual but also visceral, and I find myself just wanting to listen to it -- but wanting to hear it in the context of the whole album, not skipping anything, thinking in the middle of Pink Section that this is the perfect thing to be hearing right now, at this moment.

Everyone is different. We are each the ideal readers and listeners for particular artists. Thom Yorke is one of the creators of the soundtrack of my life, the one I carry in my head wherever I go. To know others' soundtracks is to know a little of others' minds.

Bet Your Life Before You Impose Death

However wrong it may be to maintain the death penalty at all, it is surely wrong to execute members of our society based on a jury’s conclusion that they are factually guilty “beyond a reasonable doubt.” As I put it a few years ago on Twitter on the evening of the execution of Troy Davis:

If you wouldn't bet your own life that Troy Davis is guilty based on this evidence, you shouldn't be willing to bet his. Simple as that.

Is that the right standard? I think in death penalty cases that it is. A risk of erroneous conviction will exist in any justice system, and, as a consequence, any society must sometimes punish the innocent (and, necessarily as further consequence of that, fail to punish the guilty) if it punishes at all. If imprisonment is one such punishment, there will always be among us the wrongfully imprisoned. One source of error, but not the only one, is inherent in the standard we ask juries to apply to determine guilt: “beyond a reasonable doubt.”

Confidence

I have asked students from time to time what they think “beyond a reasonable doubt” means or should mean in terms of probabilities. They have ranged from about 60% confidence in guilt (a number I found absolutely shocking) to about 98%, with most students seemingly inclined toward 95%. I wonder, though, what this even means. One way to understand this apparently probabilistic description would be to say that the 95% threshold reflects the required level of confidence in one’s judgment such that if presented with a large enough random sample of judgments to make, a wrong judgment of guilt would be reached 5% of the time. So if we tried massive numbers of randomly selected people for crimes, 5% of the small number of people found guilty would in fact not be guilty. (Note that the higher this threshold, the greater the number of factually guilty who are found not guilty.)

There is a problem, though, with ignoring the role played by police and prosecutors, who do not conduct themselves by charging everyone with a crime and letting juries sort things out. They only charge if they believe it will lead to a plea bargain or, at worst, a guilty verdict at trial. And so our sample of suspects appearing in front of juries is not random. You might still try to argue that the erroneous conviction rate would be about 5%, because the prosecutor and police would, more or less, charge all defendants who are likely to be found guilty. So all potential defendants who they estimate are, say, 92% likely or more to have committed the crime will be charged. If any defendant whom a jury would find 95% likely to have committed a crime would be estimated 92% likely to have committed a crime by the prosecutor (and if there is no bias toward guilt among detected suspects), then all identified suspects who would be found guilty by a jury using a 95% threshold would be charged. And therefore all potential erroneous convictions among identified suspects will in fact occur. (Very limited research tells me that conviction rates at trial hover between 75% and 90% in the United States. This number reflects, though in ways too complicated for me to analyze in the few hours I have to give to this post this morning, prosecutorial success in predicting what juries will do.)

This, though, is far too simple and not only because likelihood estimates by prosecutors are not so precise. The wrongful punishment rate depends on the standard of proof that is required, yes, but also on the rate and distribution of systematic deception practiced by police and prosecutors on the one hand and defendants and their attorneys on the other, the degree of post-conviction effort put into factual review, and, obviously, much more.

Moreover, the distribution of guilt likelihoods among defendants is not uniform across all possible crimes. For some crimes, it might be nearly certain whether an individual is guilty or innocent. This depends on the definition of the crime and social facts about how it is committed and detected. Among potential sources of error: wrong identity, wrong inferences about mental state, wrong guesses about what actually occurred? For example, if it is a crime to think negatively about the king, there are some rather evident proof problems, and the way we infer a person’s thoughts will affect our stated level of certainty regarding guilt. We should expect a lot of borderline cases of this crime and thus perhaps a significant probability juries will have to wrestle with cases in and around the 95% level. If, in contrast, it is a crime to sing the national anthem of another country at a sporting event attended by more than 10,000 people and if (1) it is clearly defined statutorily and culturally what a sporting event is and (2) always clear, owing perhaps to technology and culturally embedded meticulousness, whether attendance is at least 10,000, then the rate of erroneous charging would surely be very, very low. These examples of absurd crimes are only meant to illustrate that erroneous conviction and punishment rates depend on the rate at which plausibly guilty but innocent defendants are put in front of juries and the distribution of uncertainty among the plausibly guilty.

The inequality of “reasonable doubt”

Getting the right estimate of wrongful punishment matters. It is impossible to answer whether the forced sacrifice we require of imprisoned innocents is worth the benefits of punishing the guilty without knowing how many innocents we are sacrificing and how severe their burdens are.

I strongly suspect that the level of confidence we vaguely require for conviction is far too low. Further, I think it is in practice too low because the risk of erroneous conviction is not distributed equally among us. Put differently, I hypothesize that a politically influential person’s preference for the confidence level to use in criminal trials is, generally, much lower than the strength of their preference to avoid their own (or a family member’s) wrongful conviction would imply. And further, this owes to the fact that those in a position to affect the operation of the law are far less likely to be put in jeopardy of wrongful conviction than those who lack such power. (Yes, this is Rawlsian: if people believed they were as likely to be wrongfully convicted as anyone else, they would probably prefer a higher conviction threshold than if they believed the probability of wrongful conviction fell disproportionately on others.)

A recent paper by Gross, O’Brien, and Kennedy attempts to use the unusual level of post-conviction scrutiny of death sentences to estimate, conservatively, the wrongful conviction rate:

There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. . . . . We . . . estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

And that’s conservative. In 2012 there were about 600,000 people newly imprisoned in state and federal facilities. It is likely that at least 24,000 people should not have been. (Interestingly, that is in the same neighborhood as other social risks we seem willing to take: Car and gun deaths both hover around 30,000 people a year.) All told, though, there were about seven million people in the U.S. in prison, on probation, or on parole. Among them, very likely, were at least 280,000 innocent people. 280,000.

Achieving justice in risk bearing

Part of the solution to the problem of imprisoning the innocent surely lies in more elaborate review, reducing inflated prison sentences (thus reducing the cost of uncorrected wrongful convictions), severely cutting back on reliance on eyewitness testimony, and implementing trial and police procedures that minimize racial and other biases. This is ground that has been exceedinly well covered by Brandon Garrett in, among other works, Convicting the Innocent.

Even if it is impractical to encourage a hypothetical internalization of risk of error in every jury trial, I believe it is both possible and incumbent upon us to do so in death penalty cases (which, to be up front about it, I think there should be zero of). This follows from the simple fact that the required level of confidence in guilt or innocence should not rationally be the same number in all cases.

In tort law, it has long been recognized that the level of care we expect from people in society should be based on both the probability and gravity of harm a behavior generates on the one hand and the “burden” of altering the behavior to avert the harm on the other. So whether I should install a handrail on steps should depend on whether the cost of the rail is exceeded by the risk-adjusted cost of injuries that would occur in the rail’s absence. This formulation has rather obvious problems, and a marginal analysis of the multitude of substitute behaviors would alleviate some of them. But the basic idea that more care should be taken when a greater risk of harm looms is sound.

Our criminal law does not work that way. (The standard of proof in tort law is similarly insensitive to potential damages.) We often do not even allow jurors to know the range of penalties that might result from their finding guilt. And we certainly do not instruct them to achieve a greater confidence in guilt before rendering that verdict in cases in which punishment is more severe than in cases in which it is less severe. One surely should ask whether this is sensible. But I’ll leave the general question to others for now.

Instead, let us focus on death penalty cases, in which no post-punishment error correction is possible and no compensation for wrongful punishment could possibly be adequate. Here, it would be useful to disentangle the jury’s decision whether the defendant should be punished at all, perhaps with life in prison, from whether the defendant should be put to death. Indeed, the law does this by requiring one decision as to guilt, reached (at least as a matter of the law on the books) according to “reasonable doubt,” and a second decision concerning whether the death penalty is deserved, the defendant’s guilt being assumed fully decided.

But I would propose that after the so-called “guilt phase” of a capital case, the question of guilt or innocence should return. Having decided that the defendant is guilty beyond a reasonable doubt and that at least imprisonment is justified (because the tragic but omnipresent risk of erroneous imprisonment is deemed acceptable on account of “what else can we do?”), the jury should then ask, “Are we prepared to order the defendant killed?” And this question should not assume guilt but must be sensitive to the risk of error.

Here we should ask whether it makes sense to risk another’s person’s life. To be quite honest, I think the answer to this question in this context is always no. But assuming it is ever sensible to risk the life of another when confinement is an option, it should only be on grounds that it would be fair to risk anyone’s life in case of error. That is, if the slain defendant turns out to be innocent, we would have killed an innocent person in order to achieve a broader social purpose of deterrence, incapacitation, retribution, or whatever. And whatever that purpose is, we will have determined that, despite the risk the defendant may be innocent, the execution should occur in order to further it. If that is so, then we have deemed the purpose important enough that we are willing to place upon the defendant’s very existence whatever the risk of error is to pursue it. But an innocent defendant is no more blameworthy than anyone else and has no special burden to carry such risks for us. And so we should only pursue the death penalty in a case if we would be willing to kill a randomly selected person if we turn out to be wrong about the verdict.

The price of the death penalty is that, at a rate commensurate with the aggregate confidence levels in our verdicts, we will kill innocent people who have no more cause to be killed than anyone else. That confidence level, then, simply must be calibrated so that it calls for no more risk than we would ask anyone in society to bear to achieve the death penalty’s purposes.

At the guilt phase the jury should be instructed:

You have determined that the defendant is guilty of the crimes charged beyond any reasonable doubt. This, of course, did not require you to determine to a certainty that the defendant is guilty. At this stage, I instruct you to reject the death penalty in this case, and impose life in prison without parole, unless you are so certain of the defendant’s guilt that you would offer to take his or her place and be executed should his or her innocence later be established. Of course, this would not literally be required of you. But you must not decide to impose the death penalty unless you would honestly be willing to bet your own life on the defendant’s guilt.

Could it seriously be objected that by so personalizing the decision to impose the death penalty, the jury will be unduly dissuaded from doing so? If a juror is unwilling to take this bet, what does it say about the propriety of imposing that bet on another? While, tragically, we impose that risk on the imprisoned, that is because there is no other way and because there is at least the possibility of correction and compensation.

It is, indeed, part of the price of civilization that we must all live under the threat of erroneous imprisonment. We must, though, recognize that this risk of error is not equally shared and that in death cases it represents the ultimate consequence. If we cannot share it equally, we should at the very, very least be asked to imagine that we do.

404: Argument Not Found

This is a point about one way that law changes. Gay marriage will, obviously, soon be the law of the land. It’s coming down to a question of this year or the next few, not decades. This legal revolution owes to a combination of things: broad social forces, the legal legacy of the civil rights era, popular entertainment, and, most of all, the courageous acts of gay people who have come out to their friends and family. But just how much has changed can be heard in the remarkable oral argument in the Seventh Circuit, in which a very hostile Judge Posner lambasts lawyers defending the Wisconsin and Indiana marriage bans.

Listen to excerpts here or the whole arguments here and here. Posner’s basic point was: why? What reason is there to have such a law? The answers given were, to put it charitably, unconvincing. They boil down to two: (1) The will of the people as enacted by the democratically elected legislature should be respected by judges, and (2) the long history and tradition of this particular discrimination should give judges great pause before dismantling it. The latter adverts to a Burkean avoidance of upsetting traditions for fear of the unintended consequences that may follow. Perturbing a stable and complex system should be done with caution. As Burke put it: “that which in the first instance is prejudicial may be excellent in its remoter operation” and that “it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society.” (Note also that Burke himself likely would have sharply rejected the first reason.)

Posner ridiculed these two reasons at oral argument. The first could be interposed against any claim that a statute is unconstitutional and so would be doing no work additional to existing doctrines of judicial deference, doctrines that demand at least some plausible reason for a discrimination. The second could be be lodged against any effort at legal change and, for Posner’s part, would need at least some plausible guess about what might go wrong in order to be even mildly persuasive. For example, it is easy and not unreasonable to speculate that moving to no-fault divorce could, even in the absence of experience with such a regime, increase the number of divorces and cause bad social consequences. Whether that potential harm would justify foregoing the benefit that would come with change is a different question, but at least one could give a speculative reason to be cautious. The lawyers were unwilling or unable to identify any concrete harms that allowing gays to marry might cause.

Thirty years ago, the state’s lawyers would have had lots of responses to Posner’s questions. Most would have been variations on the themes of the possibility of gay contagion and the perceived ickiness of gay sex. They would have been the formalized and sanitized versions of then-common locker room jokes and solemn acknowledgments of the truths we all know deep down. And they would have won the day, because it was simply inconceivable to many that “the gay lifestyle” should be decriminalized, much less tolerated, and much, much less respected.

Here is what Chief Justice Burger wrote in Bowers v. Hardwick, concurring in order to emphasize the constitutionality of a criminal prohibition on having gay sex in one’s own home:

Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation, when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. Blackstone described "the infamous crime against nature” as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816, the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

(Citations have been omitted.) These arguments, which stand for more than the raw fact that long-dead people made them but clearly ask that we accept their conclusions, call us to moral consensus. These kinds of responses, however, are now ruled out as bigoted, because they are clearly and deeply insulting to the gay friends and relatives that almost all of us now know that we have and whose sex lives we now think no more icky than any one else’s — and certainly less icky than many other sexual preferences the internet has foisted on the general consciousness. And so the marriage dead-enders are left with bare history and tradition, lacking any reasons one should agree with that history and those traditions.

To be clear, from the date of their writing, Burger’s arguments offended certain principles about just treatment, minority protection, and religious equality. See, e.g., Justice Blackmun's dissent. They were odious from the start in my view. But they now offend the basic political consensus. Someone making these same arguments at a dinner would cause those around them to become very uncomfortable. Maybe not in every social circle but in enough that we all know how this social struggle will end.

And so we come to the point of this post, to observe a way law can change without the amendment of words of statutes or the text of the Constitution. Here, the law being applied is the same as it has been: To be upheld, a discrimination in a law requires some justification, even if only barely rational. But the only justifications that can be considered free-standing reasons cannot be uttered in polite company these days. The lawyers defending these laws almost certainly do not want to make them and probably do not believe them. The law on gay marriage is about to change not (only) because the constitutional approach to such laws is now different but because the old arguments have been rendered unavailable by a dramatic change in social norms. Gays are now firmly within the community of equals. That is a social fact as well as a political decision, and courts are now being asked to ratify it with nothing substantial to oppose it.