Rules, Standards, and the Era of Computation

The increasing power of computation is the most important force of our age. In Law’s Algorithm, written with Steve Wasick, I apply information theory to demonstrate that greater computational capacity can change the optimal form of law.  Because such increased capacity allows law to be more easily discovered it encourages the use of bottom-up forms of legal ordering, like the common law and standards. These forms of law have advantages in permitting law to evolve as it is applied to new facts and situations. But in comparison to fixed rules they also have disadvantages, because their application is more uncertain.  As legal search and prediction improves through the computation, however, the degree of this disadvantage declines.

Consider a law that requires citizens to drive at a particular speed—a classic rule.

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The Court’s Alleged Power to Ignore the Original Meaning

In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism.  Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism. But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument.  I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning…

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Engaging and Knowing: The Cart and the Horse

The thoughtful and meticulous analysis by our friend Joseph Knippenberg got me thinking about civic engagement. Well, that’s not quite true. I was already thinking about it while trying get a book done on the technocratic threat to higher education (which is greater than the politically correct threat to higher education, although the two are not unrelated).

There is an expert-driven trend in higher education–facilitated by foundations, the American Political Science Association, professors of political science and professors of education–to transform the teaching of political science through civic engagement. The literature on this is full of jargon and otherwise depressingly low in its cognitive pay grade. The consensus seems to be the need for a third way of studying politics. One approach, allegedly rigorously scientific, is the nonpartisan detachment of the behaviorist. Another is the textual approach of political philosophers, who talk about what Plato said Socrates said while hanging out in the marketplace but never actually take students to such a public forum. The third way is for students to learn through actually participating in political life.

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Prescription for a Banana Republic

dept of ed

This past Friday, Boston College’s excellent Shep Melnick (interviewed on this site not long ago) gratuitously ruined my weekend by alerting me to the latest “Dear Colleague Letter” (“DCL”) from the Education Department’s Office for Civil Rights (“OCR”). The DCL “shares” OCR’s views on “resource compatibility” at the nation’s schools, district by district. Horrendous in its own right, the letter also prompts broader thoughts on “government by guidance”: it’s a prescription for a banana republic.

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Beware the Political Hawk

Ancient Rome : Politic Assembly

With the Islamic State’s invitation to sympathizers everywhere to join in murdering Americans, U.S. public opinion favors destroying this nefarious force. Accordingly, politicians of both parties—especially those up for election—are competing to see who can issue the most bellicose statements.

But popular sentiment notwithstanding, there is no reason to believe that our ruling class has learned anything new, that it is shedding the ways that have opened hunting season on Americans, or that it is setting about destroying America’s enemies.

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Descriptivism, Prescriptivism, Great Aunts, and Grand Aunts

For many people who spend their time writing, the issue of descriptivism versus prescriptivism is  a fascinating one.  Are there rules of grammar and usage that people should follow?  Sure.  But are those rules defined by an elite group of language speakers and writers?  Or should they simply be based on regularities of language usage by all speakers and writers?  A fascinating question, with all types of issues.

For what it is worth, my view is basically that at any one time (within a group of language users), there are rules that define proper usage.  But those rules change over time.  At a certain point, the old conventions will give way to new ones, and those new ones will become the proper usages.  So one day, perhaps pretty soon, the distinction between imply and infer is likely to evaporate and it will be proper to use them interchangeably.

Even if one is a descriptivist and agrees with that prediction, I think that one should be sad about the demise of the distinction.  When the distinction is no longer recognized, it will be harder to convey precise information about whether the speaker is implying or the hearer is inferring.  Perhaps in the new world new words will allow a speaker to convey the distinction, but there is no certainty and it seems like a lot of trouble to reinvent the wheel.

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Eric Holder and the Rule of Law

As Eric Holder leaves office, I want to remind readers of a decision that was a startling breach of legal regularity. It concerned the Attorney General’s core obligation to help the President carry out his constitutional duty “to take care that the laws be faithfully executed.”

The incident arose from a bill that purported to give the District of Columbia voting representation in the House of Representatives. 

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Civic Literacy and Civic Engagement

American Citizenship

Though Constitution Day has come and gone (it was September 17), it may still be appropriate to honor the enactment of our Founding charter by looking into the question of “civic literacy” and “civic engagement.” By the first, I mean knowledge largely about American history and political institutions. The second is meant to denote participating in the political process, passively by voting and actively by contributing to and working on campaigns, trying to influence others’ votes, attending political events, contacting officials, signing petitions, and writing letters to the editor.

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Halbig and the Possibility of Supreme Court Cert

Now that the D.C. Circuit has granted rehearing en banc for the Halbig case, there is speculation about whether the case will make it to the Supreme Court.  Halbig, of course, is the case addressing whether federal health care exchanges are allowed to receive federal subsidies.

The defenders of the subsidies for the federal exchanges are hopeful that the case does not reach the Supreme Court.  Before the D.C. Circuit granted rehearing en banc, there was a split between the circuits, with the D.C. Circuit ruling against the legality of the subsidies and the Fourth Circuit ruling in favor of them.  Cert seemed assured.

But the future decision of the en banc court of the D.C. Circuit changes things.  With the three new Democratic appointees to the Court, there is now a Democratic majority and it seems extremely likely that the panel decision will be reversed – in which case, there would no longer be a split.  Of course, there are other cases – a District Court in Oklahoma just held that federal exchanges cannot receive subsidies – but those circuit court decisions may take some time and there is arguably a strong need for this issue to be resolved expeditiously.

I wonder whether the Supreme Court will feel constrained from taking cert if the full D.C. Circuit decides in favor of federal exchange subsidies.  Every circuit court judge who has decided the matter has voted on party lines in these cases.  If the Democratic D.C. Circuit reverses, that trend will continue.  And there is controversy about whether the D.C. Circuit should have taken the case en banc.  In these circumstances, one might wonder whether at least four of the five Republicans on the Supreme Court will decide to hear the case, notwithstanding the lack of a circuit split.

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Notice, and Comment

There’s a terrific new blog out there, under the umbrella of the Yale Journal on Regulation. Cleverly entitled Notice & Comment, it’s the brainchild of Chris “Just-Because-We-Teach-AdLaw-Doesn’t-Mean-We’re-Boring” Walker.  The blog follows the AdLaw literature, so we don’t have to. It also has posts on ongoing events, and they’re darn good. Among the recent entries: a fun piece by Peter Conti-Brown, an occasional contributor to this site, on how POTUS can fire the head of the Secret Service (“head” is a metaphor here) but not the President of the New York Reserve—and how stupid is that? And Jeff Pojanowski has an…

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