Symposium: The Future of Law and Development, Part II

Mariana Prado, Susan D. Franck, & John Cioffi

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Should We Adopt a “What Works” Approach in Law and Development?

Mariana Prado[*]

My comments will be mostly connected to Tom’s third question, relating to the future,[1] and I would like to start by responding to Salil Mehra.[2]  I generally agree that there is an excessive focus on replicable “tools” and “best practices” in Law and Development studies, but I think there are a lot of questions to be asked regarding Mehra’s suggestion that the way forward involves addressing embedded cultural practices and institutions.  In fact, there are currently a number of scholars (myself included) emphasizing the importance of looking at the interaction between so-called informal institutions (such as cultural practices, social norms, and historically entrenched attitudes and values).  The problem is that although most of these analyses are very helpful in understanding what went wrong and why the “toolkit” did not work in a given context, they do not tell us how to improve our efforts going forward.  So, like the “blueprint” Law and Development scholars, the “context matters” Law and Development scholars are not helping the field move forward.

Symposium: The Future of Law and Development, Part I

Tom Ginsburg, Salil Mehra, Katharina Pistor, & Anna Gelpern

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The Future of Law and Development

Tom Ginsburg[*]

Welcome to the Law and Development blog symposium!  We are thrilled to have a fantastic array of participants lined up and trust that the discussion will be lively.  In our call for participation, we asked people to reflect on the diverse conceptions of “law and development” and to take the opportunity to think about the directions the field is headed.  I would like to begin by posing three questions for consideration, though I anticipate that we may end up heading in quite different directions as well.

First, as an initial question, is Law and Development really a field?  In a recent paper, Brian Tamanaha argues that Law and Development is “a poorly constructed category that lacks internal coherence . . . .  Law and development work is better seen, instead, as an agglomeration of projects perpetuated by motivated actors supported by funding.”[1]  Much depends, of course, on what we mean by a field.  As a field of applied activity, Law and Development seems to have a clear boundary involving reform projects related to legal institutions.  As a scholarly field, however, it may be less clear.  On the one hand, we have two nascent journals, the Law and Development Review and the Hague Journal on the Rule of Law, which is surely one sign of the institutionalization of a scholarly field.  On the other hand, one might argue that there is sufficient lack of consensus on method and topic to deserve the title “field.”  But if not a field, what is it?

Missing the Mark: An Overlooked Statute Redefines the Debate over Statutory Interpretation

William S. Blatt[*]

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Scholars have long debated the merits of various theories for interpreting statutes.  On one side, textualists argue for close adherence to text.  On the other side are those who interpret statutes by reference to legislative intent.[1] 

At the center of this debate is the seminal 1891 Supreme Court case Church of the Holy Trinity v. United States.[2]  That case considered whether the Alien Contract Labor Act, which prohibited the importation of “labor or service of any kind,”[3] barred a church from hiring an English minister.  Writing for the Court, Justice Brewer consciously departed from statutory language and exempted the hiring.  Textualist and intentionalist interpreters alike regard Holy Trinity as a crucial test case for assessing theories of interpretation.[4] 

Months before the Supreme Court’s decision in Holy Trinity, however, Congress specifically excluded ministers from the Act.[5]  Remarkably, the debate gives scant attention to this exclusion.  The failure to consider such a highly relevant statute is no isolated mistake.  Rather, it reflects a larger blind spot in our thinking about statutory interpretation.  Continuing in three parts, this Essay explores the impact of the exclusion on that thinking.

Thoughts on the Churn Law

Michael Halley[*]

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Introduction

A grand alliance is forming, and new trenches are being dug on the old and hallowed battleground of the Constitution.  Waving the stars and stripes of “constitutional design,”[1] and richly equipping themselves with the weaponry of reason, scholars like Richard Fallon, Sanford Levinson, and Jack Balkin have taken the field to determine “what provisions for judicial review (if any) ought to exist in constitutions for all societies whose people and legislatures are seriously committed to respecting rights,”[2] and to avoiding “constitutional crises” by “careful planning.”[3]  Fallon, a self-proclaimed “system-designer,” applauds himself for having “plowed rich ground.”[4]  Levinson and Balkin claim to be revealing a “secret”[5] that, if they are to be believed, has not only gone untold and unnoticed since the nation’s Founding, but could have avoided the near apocalypse of our Civil War.[6]

Frederick Schauer’s ambition—to breed a race of lawyers and judges equal to the ignominy of slavishly adhering to precedent—is no less breathtaking.  Asserting that “following precedents even when they seem wrong to the decision maker is . . . a large part of law,”[7] he proposes to conduct empirical experiments to determine: (1) “whether those who self-select for legal training (or are selected for legal training)” are superior, before receiving that training, “at subjugating their preferences for the right answer to a norm of precedent”; (2) “whether those who are trained in the constraints of precedent (recent graduates of law school, for example) are better at following uncomfortable (to them) precedents than those who have yet to receive such training”; and (3) “whether those who self-select for judging, or who are selected to be judges, are better at following precedent than practicing lawyers of similar experience.”[8]  Whether these scholars’ wholesale embrace of intelligent design is the means to perfect constitutional systems commensurate with the universal call for freedom, or whether it desecrates the Founders’ legacy of a constitutional frame attributable neither to “human genius” nor to “reason and reflection,” but only to “time and experience,”[9] remains to be decided; and it can only be hoped that the tenor of the debate will prove less rancorous than the all-out war currently raging between the proponents of intelligent design and those of evolution in the field of biology.

Why We Should Ignore the "Octomom"

Kimberly D. Krawiec[*]

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I.  Introduction

Few familiar with the story of Nadya Suleman­­—a single, low-income, California mother of six who recently gave birth to octuplets conceived through in vitro fertilization (IVF)—do not instinctively react with outrage.[1]  Fourteen children (or even one) are a daunting number under the best of conditions, and the conditions surrounding the Suleman births are far from ideal.  Yet, as the old saying goes, “hard facts make bad law,” and Suleman, dubbed “the Octomom” by the media, exemplifies the truth of this adage. 

Suleman’s hard facts have led not only to bad regulatory reform proposals, but also to public fury and social hysteria.  Critics have heaped both fascination and scorn on Suleman, and legislators, policymakers, and others have called for a variety of new restrictions on the use of assisted reproductive technologies (ARTs) in response to the Octomom controversy.[2] 

The most recent and thoughtful of these proposals is from Naomi Cahn and Jennifer Collins, who advocate a variety of ART-related reforms, including record-keeping requirements, limits on the number of embryos that can be transferred during any single IVF cycle, informed consent rules, and insurance coverage regulation.[3]  Not surprisingly, given the high quality and inventiveness of prior work from each of these authors, the Cahn and Collins framework for ART governance has much to recommend it. 

I take issue, however, with the Cahn and Collins embryo-transfer limit proposal and argue in this response that such a limit would produce fewer benefits and higher costs than Cahn and Collins assume.  Moreover, if the fertility industry is to be subjected to greater oversight, such oversight should stem from a balancing of what is to be gained and lost in the process, rather than through a hasty response to a sad and disturbing—but aberrant—case.

Who Decides What Number of Children is "Right"?

June Carbone[*]

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I agree with Professors Cahn and Collins that “eight is enough.”[1]  I am perhaps more skeptical than they are about assisting Nadya Suleman, a mother who already has six children, to have more.  I wonder whose funds financed fertility treatments for a single, unemployed mom on disability benefits, and, perhaps even more critically, who will fund the children’s ongoing care.  I am certainly concerned about the dubious ethical standards of the doctor who provided the reproductive care.  But I also have serious reservations about anyone choosing to impose my views—or those of others—on the country as a whole.

I therefore applaud Professors Cahn and Collins for leading with the question, “Should we regulate?” and for framing their proposals in the context of a principled distinction between regulations of the type that tend to be federally regulated in other contexts (how many embryos to implant in a single in vitro procedure, for example) and personal decisions better left to individual autonomy (such as whether a single mother ought to have more children).  I fear, however, that although the distinction they draw is principled and in many ways persuasive, it is a line unlikely to stick and unlikely to fully address the ethical framework for reproductive technologies if in fact it does take hold.

My concerns do not proceed from any reflexive libertarianism.  I do not reject government regulations per se, nor do I believe that the market, through the magic of the unseen hand, will necessarily correct misguided decisions to implant six embryos in an unemployed thirty-two-year old.  Instead, I question the framework Cahn and Collins develop for determining when and what type of regulation is appropriate.  I argue for a dynamic theory of regulation, informed by the concept of evolutionary economics, that would ask not just what kind of regulations are needed, but also how regulatory implementation is likely to affect who becomes a patient, what kinds of doctors are likely to provide the services they seek, and where and when medical treatment is likely to occur.  This analysis is dynamic—and evolutionary—not in a biological sense, but in the sense that it anticipates how change in one arena, such as the expansion of insurance coverage, might affect another area, such as the number of embryos likely to be implanted or the need to regulate issues not of concern in today’s fertility practices.  In short, I am more concerned about whether fertility clinics locate in Detroit or Windsor, whether President Obama or a Georgia governor appoints the regulators, and whether Ms. Suleman can afford in vitro fertilization at all than I am with having a government official stop the next doctor willing to implant too many embryos.

Summum and the Establishment Clause

Bernadette Meyler[*]

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Chief Justice Roberts: [T]he more you say that the monument is Government speech to get out of the first, free speech—the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause.  If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking—supporting the Ten Commandments?

Justice Kennedy: [I]t does seem to me that if you say it’s Government speech that in later cases, including the case of the existing monument, you’re going to say it’s Government speech and you have an Establishment Clause problem.  I don’t know if—I’m not saying it would necessarily be resolved one way or the other, but it certainly raises . . . an Establishment Clause problem.

Justice Souter: But . . . [t]he Government isn’t disclaiming [the Ten Commandments monument].  And the difference[,] it seems to me[,] between you and your friends on the other side is you want this clear statement [that the city has adopted the monument].  You want a statement—for example if you took Justice Scalia’s statement, that would satisfy you, and it would also be the poison pill in the Establishment Clause.  Isn’t that what’s—I mean, that’s okay with me.  I don’t see that as an illegitimate object.  I was a Van Orden dissenter . . . .[1]

I.  A Ghostly Dialogue

A specter haunts Pleasant Grove City v. Summum[2]—the specter of religion.  Although both sides insistently litigated the case under the Free Speech Clause, the prospect of an Establishment Clause violation continually emerged during oral argument, slightly beyond the Supreme Court’s purview.  The written statements that the Court ultimately produced conjured a similar ghostly apparition located just outside the boundaries of the holding.  Whereas Justice Alito’s majority opinion simply determined that the display of the Ten Commandments monument constituted government speech, a circumstance that precluded the possibility of a free speech-based challenge, the concurring opinions of Justices Scalia (joined by Justice Thomas) and Souter again raised the Establishment Clause specter.[3]

Property and Speech in Summum

Joseph Blocher[*]

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Introduction

City of Pleasant Grove v. Summum[1] is, by its own reckoning, a case about government speech under the Free Speech Clause of the First Amendment.[2]  Even so, most commentary has justifiably focused on the decision’s implications for another part of the First Amendment: the Establishment Clause.[3]  This brief Article addresses yet another feature of Summum—what it draws from, and says about, the relationship between speech rights and property ownership.[4]  This relationship is not only the driving force behind the majority’s opinion, but is also an important tool for understanding government speech in other cases involving government intrusion into speech markets, which often involve speech that is less physical than the monuments at issue in Summum.[5]

Part I of this Article discusses the intersection of property rights and government speech in Summum.  Part II explores how that intersection illuminates three often-hidden characteristics of all speech: ownership, rivalry, and excludability.  Focusing on these concepts may help explain the property-like characteristics of speech (even when it takes forms less physical than the monuments in Summum), and whether property ownership is itself a communicative act.

Privatizing and Publicizing Speech

Nelson Tebbe[*]

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I.

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations?  Two cases this year call that question to mind.  They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a Ten Commandments monument that a private religious organization donated to a city.[1]  The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took ownership of the monument itself.[2]  The Justices therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monument—The Seven Aphorisms of Summum—alongside the Ten Commandments.  Finding the existing monument constituted government speech allowed the Court to dismiss Summum’s claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment.  The Court reasoned that Pleasant Grove could exclude Summum’s monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives.[3]  (Of course government endorsement of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated, as I will explain.[4])  You can think of the city’s decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it “publicized” a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message.

On the other hand, consider Salazar v. Buono, which the Court will hear in the fall.  It concerns a white cross that has long stood in the Mojave National Preserve.[5]  After a lower court ruled that the cross was an unconstitutional establishment,[6] Congress intervened and conveyed the small parcel of land containing the cross to a private organization.[7]  Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message.  Yet Congress retained ties to the land, including a property interest and certain regulatory power.[8]  The transaction’s highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message.[9]

Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument.  In fact, another religious group—a Buddhist organization—initially sparked the controversy over the white cross when it wrote to the National Park Service and requested permission to display its monuments nearby.  Although the Buddhists never brought legal action, it is not totally inconceivable to imagine them arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms.  As things turned out, however, only one constitutional issue is before the Court—the antiestablishment request to undo the privatizing transaction—and the government’s evasion of that claim is likely to succeed, at least in the short term.

Deference to Clients and Obedience to Law: The Ethics of the Torture Lawyers (A Response to Professor Hatfield)

W. Bradley Wendel[*]

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I.  Introduction

In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees.[1]  On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing with certain legal aspects of whether detainees in U.S. custody could lawfully be subjected to torture.  I and many others have criticized the quality of legal reasoning in previously disclosed memos,[2] and it is now conventional wisdom that something went terribly wrong with the legal advising process in the previous administration, at least with respect to terrorism and national security issues.  At the time of this writing, it remains uncertain whether an investigative report of the Justice Department’s Office of Professional Responsibility (“OPR”) will be released to Congress, and whether there will be a public version of the report.[3]  Not surprisingly, the OPR report is rumored to be highly critical of the conduct of the lawyers who prepared these documents.[4]

Professor Hatfield concludes, in my view correctly, that the legal analysis produced by the OLC in the Bush administration was intended not as a good-faith attempt to determine what the law requires, but to lay the groundwork for American personnel to later claim reliance on the advice of counsel if subjected to prosecution for human-rights violations.  There are two strands to Professor Hatfield’s critique of the advising process.  The first is positive, or empirical, and the second is normative.  The positive claim is that OLC lawyers such as Jay Bybee and John Yoo lost sight of their moral compass because as lawyers they were professionally socialized into a kind of moral anesthesia.[5]  The normative claim is that the profession’s stance toward the immorality of client activities is passive instead of active, that it impermissibly commends a morality of deference to authority over the insistence on the moral responsibility for complicity in wrongdoing.[6] 

I will have something to say about each of these points in turn, but my overall reaction is that Professor Hatfield’s proposed reform is much too strong.  He would have lawyers act directly on the claims of their own consciences rather than on the requirements of law (including tort, contract, and agency law norms structuring the attorney-client relationship).[7]  This is surprising given his diagnosis of the reason for the bad lawyering in the OLC memos:

I believe these lawyers began with the objective of justifying torture.  They concluded that they were obligated to justify torture, and then they set out to do so.  Whoever was ultimately responsible for requesting the Torture Memo apparently had such an objective, and the lawyers . . . accepted that position as a morally acceptable starting point. They made a bad moral conclusion, and I believe it drove them to make a bad legal argument.[8]

An appeal to conscience would therefore entrench the problem identified by Professor Hatfield.  The last thing lawyers like Jay Bybee and John Yoo should be encouraged to do is to act on their sincere moral convictions in violation of the requirements of law.