Amendment XXVIII: A First Draft

Section 1. Article III, Section 1 is hereby repealed. The authority granted in Article II, Section 2 to the President to nominate and to appoint, by and with the advice and consent of the Senate, judges of the Supreme Court is hereby revoked.

Section 2. The judicial power of the United States, shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The Supreme Court shall have the power to hear cases before panels of some of their number and en banc, according to procedures it establishes. A resolution by a panel of the Supreme Court shall be deemed a resolution by the Supreme Court, unless it thereafter reviews the resolution en banc.

There shall be eighteen Justices of the Supreme Court, each of whom shall serve an eighteen-year term as an active Justice. Thereafter, a Justice may continue to serve by designation on lower courts and otherwise to support the judiciary. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 3. Upon a vacancy on the Supreme Court, a Justice shall be appointed by the President after nomination, unless the Senate disapproves by a vote of 3/5 of its number within 45 days of notification of the nomination. In case three nominations for a vacancy are disapproved, the Supreme Court shall pass on the professional qualifications of the disapproved nominees and any disapproved nominees for the vacancy thereafter. When the Supreme Court has returned to the Senate three qualified nominees, the Senate shall have 30 days to confirm the appointment of one of them, else the President shall appoint from among them.

A Justice who, by reason of death, retirement, removal, or otherwise, departs active service before the end of the Justice’s eighteen-year term shall be replaced according to this appointment procedure, except that the appointee shall serve as an active Justice for only the remainder of the departing Justice’s term.

Section 4. A Justice serving at the time of the ratification of this Amendment and whose term has otherwise expired shall, in order of seniority, be deemed to have been appointed in the first year during which the presidency was held by the same political party as the Justice’s appointing President and in which no Justice senior has been deemed appointed. If there is no such year, the Justice is deemed retired.

Any other Justice shall, in order of seniority, be deemed appointed in the year the Justice was in fact appointed, but if another Justice senior has been deemed appointed that year under this Section, then the Justice is deemed appointed in the next year during which the presidency was held by the same political party as the Justice’s appointing President and in which no Justice senior has been deemed appointed. If there is no such year, then the most senior Justice appointed by a President of the same party is deemed retired and the appointments shall proceed under this Section without that Justice.

There shall be a transitional appointment procedure by which any vacancies that exist at the time of ratification are filled. For any year of the 18 years prior to ratification in which no appointment was made or deemed made by this Section, a majority of those Senators belonging to the political party of the President in office for the largest portion of that year shall appoint a Justice, who will thereafter be deemed to have been appointed in that year. Any vacancy arising within two years of ratification from the retirement of a Justice serving at the time of ratification shall be filled by this transitional procedure if the Justice's term has not expired.

References in this section to political parties do not create any novel structural role for political parties other than expediently and acceptably constituting this transitional procedure.

Overcoming Gun Violence

[Note: This post elaborates an idea Joe Miller and I explored on an episode of Oral Argument. That discussion is in places more detailed and in places less.]

This American carnage, as the president put it on the occasion of his inauguration, can indeed stop. While it is unrealistic in a country of over 300 million to believe we can eliminate all interpersonal violence, it is equally absurd to insist that mass shootings and thousands of gun suicides are as inseparable from our landscape as oxygen. To shout down even the possibility of change is not only ignorant and unimaginative, it’s callous.

To say that there is no solution to this new and deadly parade of spectacular violence is a grievous insult to all those who struggled before us, and against much greater odds, for justice and for survival. Our founders, our revolutionaries, our heroes, from Washington to Harriet Tubman to Lincoln to MLK, of course they didn’t end forever the risk of upheaval or destroy for all time all social ills. But they gave to us a fighting chance, one that is now ours to blow. Have we grown so inept and passive that the instant an actual challenge confronts us we pronounce the task politically insurmountable? Again, what a shocking insult such an attitude is to those who have come before us. We must not only try to fight evil in our time, but, more fundamentally, we must resolve to organize ourselves to do so. And we can.

Our primary problem here, as with too many other issues, is not one of human nature but of social organization. The minds and experience that could be directed to reducing gun violence are instead consumed with fending off any and all gun regulation. This dynamic has caused extensive damage not only to victims of violence but also to our body politic. I do not believe in seeking an end to politics, a perpetual bipartisanism. No, it’s important and good that we disagree with one another vehemently about things that matter. But the gun debate has become so caricatured and at the same time so stagnant that it has fostered in too many of us the insidious belief that our greatest problems are beyond our ability even to address. From it has grown a cynicism that politics cannot ever be responsive to social problems. The gun debate is a cancer that has spread to other vital issues, and it must be cured.

I propose a first step that centers directly on the political problem. It is not a suggestion of guns to ban or background checks to be performed. Before all else, we must begin rowing in the same direction, and there is a way to accomplish this critical first step: liability. Not private liability, with lawsuits, discovery, and punitive damage awards, but an unambiguously required and automatic payment by a gun manufacturer to a special fund after one of its guns causes a death. This change would not be the end of our effort to stem gun violence, but a necessary beginning that would unlock rational policymaking. A civilization cannot long exist that fails to respond deliberatively to urgent social problems. It is a damning indictment of ours and a great challenge to our existence as a great democracy that we did not respond to the mass-murder of twenty first-grade students in their classroom and six teachers and school workers. And the murders have continued. Democracy is hard work, and ours must find a way to ensure that social problems are perceived, that deliberation is had, and that efforts to solve them are implemented. The process of perceiving, considering, and responding, after all, is what distinguishes the actions of an intelligent being from the mechanics a clod of earth.

I Don’t Know Anything About Guns

Guns are the means by which almost 40,000 Americans die each year. 40,000 is a useful number to use a yardstick of risk in the United States. It’s roughly the number of people who die annually in car accidents. It’s a little less than the number of people who died from opioid overdoses in 2016. It is about the number of suicides. It’s a little more than the total of all pre- and post-natal infant deaths. It’s roughly a quarter of all deaths from all accidents. And it’s between one and two percent of all deaths. These figures are approximate, but – see here for details – 40,000 deaths marks one social problem after another.

Now if you’re a proud gun enthusiast, you and I are not going to have the same intuitions about the costs and benefits of gun ownership. The evidence is that keeping guns is, all things considered, somewhat risky. That said, we all do lots of risky things, and if the worst risks guns imposed was a heightened risk of suicide and accidental death, then maybe we could put gun ownership in the same category as smoking or motorcycle riding: things adults should be able to do if their eyes are open to the dangers.

But guns impose enormous costs that are not born entirely by gun owners and not at all by gun manufacturers. These costs are measured in medical bills, death, and grief. The one thing everyone can agree on is that this level of suffering is horrible and that it would be good to eliminate it.

I want to compromise. You see, I care nothing for guns. I know little about them other than what I’ve read and what I’ve learned watching PUBG matches on Twitch. I’m not a gun guy. If it were up to me and if I had no humility about the importance others might attach to guns, I’d propose we ban them entirely and that we confiscate the existing stock without compensation. Sounds extreme, right? Well, I don’t believe they are even close to worth their cost, that they make safety-obsessed owners much less safe, and that the fantasies they engender of fending off either bad guys or (even more ludicrously) a tyrannical government are unhealthy.

But I do understand that guns have important and unknown-to-me meanings for others and that more carful analysis of the “how maintained” and “what kinds of guns” questions could, possibly, point toward an acceptable regime of private gun ownership. How do we get there?

Automatic Liability to a Fund

If you suggest an assault weapon ban, gun people, in my experience, immediately assail the idea as ineffective and reflecting profound ignorance of what guns are and how they work. Whatever. I’ll concede that I just don’t know much about guns. I’m not the right person to decide whether and how guns and gun sales could be safer. But the beauty of economics and thoughtful politics is that I don’t have to know “the one right answer” to optimal gun production and distribution to make a boring suggestion that will help us all:

If gun manufacturers had to pay the costs of gun deaths, then a number of good things would begin to happen.

I propose that gun manufacturers be required to pay $6 million for a death caused by a firearm they manufacture. The manufacturer would be liable not to a private party but to a federal fund, which could be called the Firearm Safety Fund and be administered by the Centers for Disease Control and Prevention. Liability would be automatic and avoided only when the death is the result of a legitimate use of force by a law enforcement officer or an exercise of justifiable self defense. Such defenses to payment could be raised in an administrative hearing before the CDC (and appealed from there as any other administrative adjudication). There would be no private plaintiffs’ attorneys, no fights over punitive or compensatory damages or comparative negligence or discovery or any of the usual but often necessary sources of inefficiency in litigation. This would be closer to a death tax than a lawsuit.

The details, of course, matter. For example, I would make the findings of responsible medical examiners concerning which gun caused a death (and whether it did) conclusive for these purposes, and it would be a federal offense for any agent of a firearms manufacturer to attempt to influence such an examiner. I’d also probably discount the payment owed for gun suicides - not because such lives are less valuable but to require payment only for the excess number of successful suicides caused by guns – i.e., the number of suicides over and above what that number would be if only alternative methods of suicide were available. See, e.g., chapter two of Liza Gold, Gun Violence and Mental Illness. I’d perhaps require a bi- or triennial determination by the CDC of this figure through the normal informal rulemaking process.

This is not intended to be a perfect Pigouvian tax. The amount of the payment I suggest would be significantly less, in aggregate, than the cost of actual harms flowing from the use of guns. It would only require payment for deaths and not for injuries, which number more than twice the number of deaths. And the $6 million figure is less than what most agencies identify as the monetary value of a human life for cost-benefit analysis purposes. But perfect internalization of externalities, a theoretically dubious propositions for reasons well trodden by Ronald Coase, is not the point.

The Ordinary Benefits

First, the obvious: at least some of the costs of gun violence, accidents, and excess suicides would be spread over all gun owners rather than born primarily by victims and secondarily by society at large. That seems both fair and an appealing political argument in favor of shifting costs. Why should everyone and especially victims pay for the downsides of gun ownership? Why should we all subsidize gun manufacturers who stand alone in reaping all the profits of their activities but not a very substantial portion of their costs? Higher retail gun prices would result from the automatic payment regime, and these higher prices would reduce the rate of gun ownership, but rationally so. Of course, if you can manufacture a safer gun, it will incur less liability and so can be made cheaper. People will therefore be more likely to purchase safer guns.

All this is a traditional sort of argument for strict liability. Put the costs of injury on the entity that could most cheaply avoid or minimize them and you wind up with a system that more optimally balances costs and benefits. And so, on this ground, we might be inclined to repeal the Protection of Lawful Commerce in Arms Act, which, with some exceptions, shields gun manufacturers and dealers from liability for injuries arising from crimes committed with their products. I do not favor that and believe that the automatic CDC payment should be the exclusive form of liability. That’s because I think it would be a cleaner and more certain way to regularize the expectation of manufacturer cost.

I’m not suggesting this novel form of liability in order to achieve the most “economically efficient number of gun deaths.” There are many possible solutions to reducing gun violence, and we have eschewed all of them. I’d settle for less than optimal. No, our problem is getting anything done at all when there are powerful incentives to do nothing. And I want the manufacturer to think differently about their social role.

The Promise

The payment regime’s most important effect, and one that I hope would have positive spillover effects on other political issues, would be to make gun manufacturers a key and willing participant in stemming gun violence. When you are the one who will pay the cost of a bad outcome, you become directly concerned with preventing that outcome. Liability gives us a chance to flip the script and to get those who know these weapons best thinking hard about how to stop their being used to kill in large numbers.

Yes, manufacturers would seek to manufacture safer guns and to advertise and market in ways that minimize the risk of death. But they would also be far more likely to advocate for state and federal legal restrictions on gun ownership and sales, background checks, enforcement, and research. For the riskiest guns, manufacturers might support or even engage in gun buybacks.

Because I am not sure what the most effective mix of regulation and prohibition might be, I want to align incentives so that those who do have expertise reveal it. To be clear, we shouldn’t tax gun deaths because we think that the amount of the tax is what life is worth and that if you can pay then death is fine, but, rather, because it would alter the organization of social forces in such a way that we begin to strive for the same goal, even if we continue to disagree about means. By putting some of the costs on guns back on their manufacturers, we might even wind up with a new NRA that is committed to researching and identifying effective regulations. After all, manufacturer lobbies lobby for manufactures.


“What about the Second Amendment?” Read Part III of Scalia’s opinion in District of Columbia v. Heller. For example: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He also strongly suggests that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”

“Why do you equate the lives of children with money?” I do not. The purpose of a payment requirement is not to suggest that a manufacturer’s moral duty to the killed and maimed has been discharged with a financial transaction. Personally, I cannot imagine making a living manufacturing assault rifles. But people are different, and we cannot ignore that people do in fact make these weapons and do in fact pay nothing for the deaths that result from their work. I believe that internalizing these costs would force a change to the way they understand their work, breaking free of the ideologically pure and oppositional politics that have, in my view, corrupted their relationship to the community. Forcing a change in conceiving of one’s business from “not my concern” to “my job is making sure that never happens” is the goal. And while forcing payment will in the first instance change incentives, it just might, in the second instance, change minds and attitudes.

“But with this number of deaths, even discounting for suicide, the industry might be on the hook for over $150 billion!?!?” The costs of gun violence are shockingly high aren’t they.

“This is a ridiculous suggestion because gun manufacturers won’t be able to pay these astronomical costs and stay in business.” Drop absolutely everything else you are doing, find a quiet place, and think very, very hard about what you just said.


A random thought upon beginning a re-reading of Obergefell, which is really just another way of putting a well-known position in a well-known dispute:

The constitutional originalist strives to uphold the terms of a bargain among a people utterly alien to him, people whose culture and reasons he surely and inevitably fails fully to understand much less feel and intuit. He prefers adherence to this bargain rather than that struck by his more recent predecessors: the bargain concerning what to do with all the bargains that came before. And here we all are, giving shape to the past's now-formless physics and calling them intentions. We could indeed adopt a model of law that pretends to reanimate minds and eschews a more direct aim at living together acceptably. It would instead take a purposefully indirect route toward that goal, fearful that anything else would make kings of those at whose feet decisions fall. But that way too makes a king, a king of the one who raises an authority partly from the dead but entirely from opinionated debris and puppets the zombie's mouth.

Submarine Statutes

On the podcast, in reference to the Religious Freedom Restoration Act and the Hobby Lobby case, I've described what I see as a troubling kind of congressional action: the enactment of statutes that would affect the interpretation and implementation of all future statutes. The RFRA requires, roughly, individual exemptions from federal laws that interfere with religious practice unless the interference is strictly aligned with a compelling governmental interest. What a new statute will mean in a future case depends not only the interpretation of the law itself but also on the interpretation of its interaction with a prior law, the RFRA, in a specific factual setting. So too lies hidden and potent the debt ceiling statute that restrains the government from borrowing in excess of a specific amount, even when Congress has mandated spending that would require such borrowing. These submarine statutes lurk beneath the layer of newly enacted statutes, potentially dramatically changing the meanings of enactments from what a plain reading of them in isolation would have suggested.

Of course, the venerable Dictionary Act is an example of such a statute, and I don't see it as particularly problematic. The trouble arises when there get to be too many such statutes and when their combined or even singular effects come to be too unpredictable. To create intentional products, legislators need to understand what the words they write will mean, at least in a large sense. Yes, the central dispute among the proponents of the various methods of interpretation is what it means for a text to "mean" something. But a unifying principle among all schools is that a legislator who wants to accomplish some task ought to be able to do it, within the bounds of the Constitution, if he or she speaks plainly enough about that thing. The meaning of any law in a regime thickly patrolled by submarine statutes would be a most uncertain thing. It would begin with one zone of meanings in the mind of a legislator, more or less connected to those in other legislators' minds, but then diverge in meaning and application through a cascade of interactions with all the submarine statutes, like a grand old game of Plinko, a puck bouncing from place to place in a random walk.

That's what caused me to raise an eyebrow at a portion of a speech by Marco Rubio that I otherwise found agreeable for its focus on reigning in federal criminal laws.

It is for this reason that I have proposed that Congress establish a national regulatory budget, which would require that new, costly regulations be offset by the repeal of other existing regulations.

It's an odd proposal to be set amidst other sentences arguing for greater rather than lesser congressional control over agency rule-making. This “regulatory budget" would appear potentially to restrain an agency even from enacting regulations clearly contemplated in later-enacted statutes and therefore clearly intended by the enacting Congress. Of course, a new statute that Congress desires be given effect without regard to other statutes can include a general or specific waiver. But that’s the very problem with submarine statutes. They require Congress when doing anything new to contemplate and keep track of their existence, to anticipate whether they might present a problem, and to enact specific waivers. A court could come to the rescue by observing a fundamental incompatibility and giving effect to the later-passed statute. But when the alteration caused is something less than outright conflict, the meaning of a statute can deviate in all its interactions from anything rational, intended, or plainly inscribed in its text. That’s no good.

I’ll stop here for now. I’m aware of a great many arguments concerning provisions and canons that operate very much like submarine statutes that we have come to accept. And so some further account of the complexity argument against submarine statutes would have to consider them.

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.”


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.

Leveling Up

A listener to my podcast found useful a segment we did on leveling up in legal thinking. You can find that particular episode here. What follows is a slightly more careful introduction to that idea, at least as it exists now as a segment in the first draft of an introduction to a more general legal theory on which I'm working.

It may be helpful to reflect for a moment on how the legal student can be somewhat naturally led to the big questions after a time immersed in the study of practice. As with video games (and Dungeons and Dragons), continuously gained experience can win discrete jumps in understanding: levels. When I introduce the idea to students of leveling up, it never fails to earn a few chuckles and smirks. But it also helps them see what they already know but have usually not yet thought to acknowledge.

Assume for a moment that we know in rough detail what a legal system is and that it is in the business of, among other things, resolving definitively disputes among those who belong to it. Conceptually, we assume the following chart:

Dispute --> Legal System --> Judgment

The level one legal practitioner, just beginning his or her hero’s journey, would analyze the informational inputs concerning the dispute and the legal information available within the legal system and make a judgment. This judgment would, necessarily, connect the information concerning the dispute to the judgment according to some set of reasons. At level one, the practitioner is able to seize upon reasons that resolve the case.

For example, suppose one person demands payment from a business owner after being struck by a barrel that somehow fell out of the business’s second-story window. The level one practitioner, hearing these facts and various but contradictory sets of reasons for resolution urged by the two sides, believes the plaintiff should win. Perhaps he or she decides that (1) prior cases establish that negligent conduct that somehow directly (meaning, as far as the practitioner can tell, not too indirectly) injures someone creates a duty of compensation, (2) prior cases should be followed when they have a uniform implication for a present dispute, (3) that negligence should be found even when there is no direct information concerning the negligent actions themselves if the consequence of the unobserved actions can hardly be imagined to occur without negligence.

Armed with this set of reasons, the practitioner then concludes that barrels do not fall out of second-story windows without someone’s gross inattention and that there was no explanation from the business owner that would suggest otherwise. This being so, we should legally conclude the injury directly resulted from the negligence of the business owner. Because the prior cases uniformly find liability in cases like that (yes, we are traversing the void here) and because he or she is determined to follow the uniform command of precedent, the level one practitioner concludes that the legal system should order the business owner to compensate the victim.

Case after case is considered in more or less this way, at first. The rule ought to be “this,” because “that.” What about this other situation? Well there it ought to be “this other thing” for “these other reasons.” At some point, we should wake up a little and ask ourselves, “What reasons should be used to resolve cases?” It won’t do to form ephemeral attachments to reasons to resolve particular cases. We need to understand the set of reasons we will deploy a bit better. And perhaps we will argue about what constitutes a good reason and what sort of reason is not so good.

And here we are at level two: instead of plucking reasons from the ether and forming opinions about case outcomes, we are interested in the more general calculus of reasons that we will use to resolve cases. Is a concern with economic efficiency compatible with a belief that law should advance a particular conception of virtue ethics? Are there domains in which the two are compatible but other domains in which we must choose, somehow, which theory to bring to bear, and with it a cascade of reasons we will use to decide cases.

In the barrel case, should it matter what the social utility of the business’s product is and how liability might interfere with its mission? What if it’s extremely useful to some portion of the population but others think the business evil? (Maybe it’s building weapons that some believe critical for national defense and not immoral for that reason but that others believe is inherently immoral because of the particular way it maims.) Should the level of societal support for the business matter? Is there too steep a price in departing from the uniform view of the cases in situations that can be abstractly framed as “injuries proximately caused by negligence,” or would it be sound to carve out a social necessity defense?

Here, at level two, we might study the law not by cataloging its “rules” in situation after situation, but by more directly studying the reasons that seem to count and understanding why those that do not do not. Our investigation will cover different approaches that contain sets of reasons: economic efficiency, distributive justice, the problems of natural monopoly and collective action, the problem of informational asymmetries and more general imbalances in market power. At level two, our sophistication is such that we can bring a new kind of understanding to areas of the law we have not yet formally studied. We can begin to predict the kinds of arguments that will be made on each side. This, obviously, is a critical skill for an advocate.

Despite our new-found confidence, we find that we occasionally run into cases where the reasons for decision are of a type unlike the others. These are cases in which, whatever the reasons for reaching one conclusion or the other, there is yet another reason not to deploy them: that this decisionmaker is somehow the wrong one for the task of reason-choosing in this case. And so, perhaps, one argument in our barrel case is that our tribunal has never before found negligence and ordered compensation on that ground where the specific actions constituting negligence have not been described and that whether to create such reasons as would accomplish that task should be left not to us but to another institution, perhaps the legislature. Why? Well, maybe, we worry that allowing courts to find negligence without forming judgments about exactly what happened will lead to decisions to create categories of industrial output that are always compensable when they cause injury, without regard to the internal considerations of cost and benefit that a plaintiff would otherwise have some obligation to ferret out. Judges, acting case by case, might not appreciate the effects of those categorizations, making it too easy to bring lawsuits that have a chance of winning, and creating for too much social cost. Maybe broad-based hearings, across multiple industrial sectors, would be wise, and maybe the information thus adduced would counsel a more targeted solution to the problem of accidents that happen as a result of complex industrial processes. (Not that I find any of this compelling. We are talking about a kind of argument here.)

With this form of argumentation, we arrive at level three and with it a new model of the legal landscape. Our simplistic picture:

Dispute --> Legal System --> Resolution

was too simple to describe the sorts of considerations we think appropriate in many cases. A legal system is not just one decisionmaker, but many. And level three legal reasoning concerns not sifting through the reasons that will lead to case outcomes but to giving a reason to assign that level two task to a particular institution within the legal system. This is a question for the legislature. This one is for the courts. This is for an administrative agency. Those are conclusions about institutional assignment, and once we begin to speak in terms of those reasons, we command a much more sophisticated understanding of legal systems, because the decisionmaker considers whether it must apply its own reasons (in which case level two would suffice) or whether it must defer to the reasons chosen by others.

Once we have come this far, it is obvious there is yet at least one more level to attain. After all, once we say that we should ask what reason we have to assign a decision to a particular institution, we should recognize that we must have reasons for choosing among competing such reasons. And so level four is attained when the legal student recognizes that much of the work in law, and much dispute that seems bound up with substance, actually arises from disputes concerning the proper reasons to use when deciding on institutional assignment. I will become intensely interested in this sort of reasoning in much of what follows.

For now, just observe, for example, that people disagree about how courts should treat statutes (whether to confine their attention to portions of statutory text, whether to look at any of a number of dictionaries, whether to consult legislative metadata concerning the statute, whether to infer purposes and to aid those purposes, etc.). These disputes are, at bottom, disputes about what courts are and what legislatures are within the legal system, and those constitutive questions can be identified with the reasons an advocate has for believing particular sets of reasons should govern decision of the “who” question. Justice Scalia appears to believe, for example, that conservation of legitimacy is an overriding desiderata in developing theories of assignment and that unelected judges achieve legitimacy only by channeling the policies (the level two decisions) of elected bodies rather than making their own, because legitimacy arises primarily from relatively direct accountability to the people. Those who disagree with him have different level four theories of assignment. They may believe, for example, that while legitimacy is important, it is (a) achieved in part by pragmatic decisionmaking and not only by deferring or maybe (b) actually frustrated by clothing decisions in illusory certainty but is advanced by candor concerning the uncertainty of, say, constitutional or statutory meaning.

There are obviously many other potential elements of a level four theory. The point is that once we begin to discuss at this level, we can become clearer about what our actual disagreement concerns, where the irreducible and ultimately political judgment about control must lie. Level four is the most abstract of these and thus often naturally resisted by students. That is as it should be. We should only embrace abstraction when it makes our job easier and certainly, unless for sport, never when it makes our job harder. My point in this work is partly to reveal how abstraction is the process that makes legal systems possible in a practical sense.

A bit more deeply: abstraction is the way that humans naturally manage complex systems. A model, which you will recall is the basic unit of my argument in this work, is a conceptual linking of abstractions. All of the levels I have described here represent different ways of thinking about a practitioner’s job within a legal system, yes, but they also proceed from different models of what the legal system is: either including different institutions or blocks or different understandings for how those institutions process information. That claim is one way of setting up a major objective of the theory I propound here.

The Information Law Crisis

Let me start with a cliché. Information and knowledge are increasingly important forms of wealth. Not only are they critical inputs in the production of physical goods, but they are now among our most dear personal possessions. What is more valuable to you, your family photos or the computer that stores them? Your access to news from your family and friends or the phone you’re using now? You may have paid more money for your phone than you do for access to Facebook (though internet access and implicit sales of private information make that a difficult question to answer), but I don’t think it’s a stretch to say that many of us would pay more to avoid the loss of online sharing than the loss of a particular phone. Even if we have preferences, the latter can be commoditized, while the former is only valuable to us because it cannot.

The world has radically changed in the last decade. Funny videos, pictures from friends’ weddings or vacations, podcasts, indie games, personal news accounts from war zones: we are awash in a mass of unique informational goods that are perhaps, in aggregate, far more important to us than the particular physical goods that we use to consume them. It is our information and capacities to produce and disseminate information, not our lands or our widgets, that many of us value most in modern life. Sustenance is relatively cheap (if only we could more generously and equitably provide it); enjoyment is becoming dependent on information access. Our law is not designed for such a world, and its creaking joints show ever more clearly the signs of crisis.

I want to make a quick and admittedly unsubstantiated point here that flows from a certain understanding: the central struggle in law is the degree to which a society’s coercive resources should counteract or reinforce existing wealth distributions. What counts as protectable value? What rights to resources does an individual have? What is he or she obligated to share? When social change fundamentally transforms the value of resources and, particularly, what individual capacities are valuable, law eventually becomes a venue for contesting the lines that divide access to the new forms of value. The claim I’ll be making in future work, and the thrust of my theory of law more generally, is that the social and economic changes of the information revolution are only now becoming realized in a legal revolution. We are held back by not seeing the relatedness of the great legal-informational disputes of the last few years: from copyright to patent to drones to grocery store loyalty cards to doxing to government surveillance. All are questions of basic entitlements in informational goods.

This Has Happened Before

Law struggled to deal with the upheavals wrought during the industrial revolution, when the hegemony of land ownership gave way to the ability to acquire machinery and invest in projects uniting labor and machines. Then, we often failed to understand that the law no longer chiefly concerned the regulation of small and large landowners and land laborers, people who could interchangeably derive profit from soil. Instead, workers were becoming more obviously a specific and mere factor of production, their individual power to withhold labor -- in crowding cities with a money economy -- no more compelling than that of so many nuts and bolts.

But unlike cogs and wheels, workers could talk with one another, come together, create their own collusive social order, and credibly threaten disharmony. With the social clashes stemming from radical changes in economic life came legal clashes. Wage and hour laws, basic housing regulations, workplace safety rules, and other statutory and judicial innovations all represented breaks from the agrarian legal past that privileged and protected the use and ownership of soil, that assumed possession of a deed was possession of an adequate measure of security in life itself. Social security required more than protection of real estate rights if human beings were to have meaningful lives while participating in ever more complicated patterns of cooperation, patterns not principally dependent on dirt.

It’s Happening Again

Of course, the economy, like all life, is always changing. But we are now in the midst of a decades-long process of turning many aspects of our daily lives over to platforms for information. Anything you can think of that might be made better by being configurable is probably on its way to becoming a software platform. Phones, watches, televisions, thermostats, cars, musical instruments. Many familiar objects can be made better by integrating or even becoming computers. They will be new platforms for changeable, complex informational interchanges (the essence of a software platform) rather than more or less inert lumps of metal, confined to prescribed informational rails from foundry to landfill. And importantly, it will be the information itself, not the particular platform, that is the most valuable. It is not yet, however, well understood how access to that information should be allocated. Instead your privacy, your informational market power, and your ability to participate and withdraw are all subject to shifting technological whims. Not considered opinion, but the dominion of whatever is possible at the moment.

Law is not currently constituted to deal well with the things we are coming to value and with the lives we want to lead. This emerging crisis can be seen most clearly in disputes over privacy and intellectual property. Government surveillance, information privacy, hacking, private surveillance, drones, patents, copyright, fair use. All these concern the drawing up of baseline entitlements to informational goods: creative products, information about our private lives, and the ability to use informational inputs to derive and enjoyment and produce new informational outputs. We have lines, but they are arbitrary and inconsistent and fail to track what matters to us.

After losing a battle in the Supreme Court to strike down the ridiculous Copyright Term Extension Act of 1998 (that retroactively extended the terms of copyrights to the lifetime of the author plus an additional seventy years), Larry Lessig lamented that he “had failed to convince them that the issue here was important.” They had failed to see how copyright’s lengthy terms truly hurt the lives of Americans. It used to be that if one made videos or writings that copied from America’s cultural heritage, some of your friends or teachers might see. It may have been technically illegal, but you would almost certainly never interact with the law. The good you produced was not valuable enough to register. Wide, cheap dissemination, the democratizing feature of the information age, changes all that. Copyright now impedes our abilities to fill videos we share with the music we love or with clips from America’s past. Patent is an absolute wreck of lost opportunities. My own ability to control the information I share now utterly gone, at the mercy of whatever technological innovations I fail to keep up with, whatever browser settings or updates I forget to use, whatever cryptographic cloak I can put on.

Consider, too, the laughable (as a policy if not formally) emphasis the law now places on information’s particular, but irrelevant, embodiment when determining whether the Constitution should permit the government to snoop. Is government tracking of your movements problematic only because government agents attached a GPS device to your car, your physical property? Is government’s ability to see inside your home, using thermal imaging or other technology, only problematic because the technology is unusual? Do we not have any reason to fear government or private collection of our communication metadata (the times and targets, but not contents, of our phone calls, for example)? On the other hand, absolute entitements to the information we produce is unworkable in a society in which crime detection also depends on information access.

My point is not at all to push a libertarian agenda but only to begin to show the mismatch between the important underlying questions of informational line-drawing and the law we have, focused as it is on attributes of these disputes that are poorly related to those questions.

The Beginning

The lines of control over information are in chaotic flux. Just as the industrial revolution led to demands for labor reform -- to protect basic human values from the “natural forces” of the market as it ripped apart the old and commoditized labor and housing -- so too the information revolution is stressing the law built up to draw compromise lines in a world of skilled labor, consolidated media companies, ample self-help opportunities to preserve privacy, and very limited means of mass distribution of intellectual works.

The barriers to mass dissemination of works of art and technology are increasingly purely legal, not technological. Our privacy is increasingly beyond our individual abilities to protect -- both from our government and from other people, corporate and individual. The ability to marshal informational goods into new ones is increasingly difficult for legal, not technical reasons. And our law fails to grapple with this new reality.

This post, obviously, is very short on specifics. But I wanted to record here some general thoughts about the teachings of disputes over copyright (as in Eldred v. Ashcroft), patent (the formalism of Myriad Genetics), government secrecy (as in the Wikileaks and Snowden sagas), and consumer privacy (our ability to lead private lives while also participating in modern life through Facebook, Google, and other information platforms or even by using credit cards or buying groceries). The common obstacle is a natural resistance to changes in our appraisal of baseline entitlements to information. Eventually there will be a true end to the informational Lochner period from which we are emerging.

State Action and Duck Dynasty

I've never watched Duck Dynasty. But apparently one of the stars said something offensive about gays and was essentially fired. Some people were upset and cited his free speech rights. Others pointed out that the First Amendment only forbids government censorship. In this case, that's right, but it's a bit more complicated than that simple answer. (My South Carolina friends may remember the very similar Maurice's BBQ / grocery store ban controversy.) I wrote a post awhile back that explains my thinking on this and why understanding the complexity of the problem reveals more depth in our law and politics.