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The Constitution, the Courts, and human rights
Book reviews
G. Tullock, Trials on Trial: The Pure Theory of Legal Procedure, University Press, 1981. xiii + 255 pp.
99
Columbia
In this important and original text, Tullock applies the techniques now widely utilized in the economic analysis of the substantive law to the analysis of legal procedure. Explicitly, Tullock rejects the notion that legal procedure should be fair, in some sense, as between the parties involved in favour of pursuing the joint objectives of accuracy and low cost which characterize efficiency in legal procedure as Tullock sees it. Tullock utilizes a simple set of models, readily comprehensible by lawyers without formal training in the techniques of economic analysis; firstly to discuss efficient procedures where the law is unambiguous and the court is called upon to determine only the facts; secondly to define efficient procedures for interpreting or supplementing the law where it is ambiguous or undefined; and thirdly to evaluate within the efficiency framework the approach of courts in the reforming of laws which they find offensive. Finally, he applies the efficiency calculus to the role of courts in interpreting and enforcing the Constitution-indeed also to the protection of the Constitution from intervention by the courts. Throughout the text, Tullock distinguishes Anglo-American legal procedures from the methods of other legal systems in order to determine the relative efficiency, as above defined, of these systems in the various aspects of their functioning. The text is unlikely to prove popular with practising US lawyers, since Tullock is no friend of the adversary system particularly as it operates at such high cost in the USA, where contingent fee facilities are prevalent. From the efficiency viewpoint, Tullock generally would look for a reduction in litigation, especially over issues of legal definition of relative general insignificance, would look for some control over litigation costs, if necessary via the ‘taxing’ control granted by United Kingdom courts over lawyers’ fees and, more provocatively, would replace the adversary approach whenever possible by the non-adversarial tribunal approach as encountered for example in France. Although Tullock views improvements in the accuracy of the courts as having public good characteristics, this is not because such improvements are likely significantly to change the percentage of cases that are decided correctly but rather because they tend to reduce the number of cases where the parties go to court. Tullock is unwilling to have the legal process subsidized for this reason by fee mitigation since this would counter the latter tendency. Once again, his support is reinforced for the specialized independent tribunal (if Tullock really does believe that such bodies could resist penetration!). The book is stimulating, provocative, well-written and strongly recommended, especially to all those who rent-seek through the legal process, whether knowingly or not. A must for the student of law and economics. Charles K. Rowley Center for the Study of Public Choice George Mason University Michael J. Perry, The Constitution, the Courts, and Human Rights, New Haven and London: Yale University Press, 1982. xi+ 165 +(footnotes and index) 74 pp. In 1834 a Missouri Army Surgeon took his slave to Illinois where State law forbade slavery and then on to an army post where slavery was outlawed under the Congres-
100
Book reviews
sional Missouri Compromise. In 1838 he returned to Missouri, and later the slave sought a declaration that he had become a free man when his feet touched free soil. In 1850 a Missouri court declared him a free man but in 1852 an appeal court ruled he was a slave and remained a slave in Missouri. So the scene was set for what is perhaps the worst case ever to have gone to the United States Supreme Court, Dred Scott v. Sandford. It would have been sufficient for the Supreme Court to have held that, since Missouri was a slave State, the condition of slavery still attached to Scott in Missouri. But in one of its early exercises in policy making the Court went much further and ruled by a strong majority not only that Scott was still a slave, but that Congress had no power to limit the expansion of slavery by law and that the Missouri Compromise, restricting the geographical limits of slavery, was unconstitutional. Three members of the Court, including Chief Justice Taney, went so far as to say that no negro, even if a free man, could hold citizenship in the United States. The founding fathers of the United States had been brought up on a diet of 18th century rational liberalism with its stress on equality and freedom but, not unnaturally, the Constitution itself and the first Amendments studiously avoided anything which would upset the political and economic balance of the new country with its Southern dependence.on slavery. However, by the time the Supreme Court was giving judgment in the Dred Scott case in I857 the attitude of the majority of Americans towards slavery was very much changed and its economic significance was fast disappearing. Within four years Lincoln was to become President. In 1883 eight of the nine Justices held the Civil Rights Act of 1875, designed to prevent discrimination in public places, to be unconstitutional. This facilitated the passage of Jim Crow laws by Southern States to enforce segregation and, when the Louisanna Law was challenged in 1892, the Supreme Court was happy to cite several precedents establishing the reasonableness of such laws; and so the ‘separate but equal’ doctrine of Plessey v. Ferguson was established. Many of Roosevelt’s reforming measures in the mid-thirties were struck down by the Supreme Court and it was not until he had been returned for a second term with a majority of more than ten million votes that the Court’s attitude toward New Dealing legislation which interfered with the traditional faissez-faire relationship of labour and capital began to change. Between 1937 and 1941 Roosevelt made seven appointments to the Supreme Court and firmly established it as a liberal body, although the liberalism of his Court was of a relatively non-interventionist kind. The more radical decisions of Brown v. Board of Education (1952), Mapp v. Ohio (1961), Roe v. Wade (1973) and those that followed them depended on a Court that was not only liberal but confident, interventionist and mature. The end result is that those whose understanding of the Supreme Court is confined to its recent history tend to think of it as a body which is liberal, interventionist, exciting and wholly in keeping with all that is best in rational and decent thinking. It is not merely an arm of government in the United States, it is also an institution of great public moment. For the educated middle classes of East Coast America the Court’s latest pronouncement on police powers, press freedom or abortion are awaited with almost as much interest as the latest results of the Dodgers, Red Sox or Orioles. And how Justice Sandra Day O’Connor will vote on ‘women’s issues’ is a topic which has court watchers sitting on the edge of their seats. In a rather conceited book Professor Perry comes down firmly in favour of the legitimacy of the interventionist approach of the Supreme Court and argues for a policy-making power going well beyond the conventions contemplated by the
Book reviews
101
framers of the Constitution, or as he calls it extra-constitutionalpolicy making. The synopsis of his argument is that the Court is justified in going beyond the value judgments established in the Constitution but must not go against those value judgments. The weakness of his theory is of course the subjective element inherent in any assessment of what goes beyond and what goes against the value judgments inherent in the Constitution. Again, as Perry admits, a defence of policy-making decisions by the judiciary in human rights cases presupposes that there are right answers to political and moral questions. It also presupposes that the Court always comes up with the right answers and of course that we can all agree on what are the right answers. Most Americans would like to forget the Bed Scott case and the appalling history of Jim Crow legislation. Professor Perry confesses that more fundamental work needs to be done. He regards his essay as a beginning and not a culmination of his work on the subject. Indeed he threatens to continue writing on various relevant issues ‘for another thirty or forty years’, though he does admit that he may be forced from time to time to change his mind and argues that the publication of the present essay is to advance discussion of his theories. The real difficulty that I have in digesting his views, apart from the pretentious language with which they are expressed, is the inherently unrepresentative nature of courts. This seems to me an overwhelming argument for depriving them of any powers that are political rather than interpretive. Whilst I accept that courts are a necessary institution of government in the sense that order is dependent on the judicial system and constitutional order may be dependent on the constitutional judicial system, I suspect the values of judges. We currently have the spectacle of a number of American Supreme Court Justices hanging on to office in the hope of depriving a Conservative President of the opportunity of changing the character of the Court not merely for his own presidency but for the next and possibly the next presidency but one. When the electorate cast their votes for Reagan they gave him authority to govern for four years. The accident of judicial deaths and resignations could give him authority to dictate the judicial attitudes of the Supreme Court for a period well beyond his own office. Indeed the position has already been reached where decisions of the Supreme Court on many of the more important issues of human rights are decided by the ‘floating’ votes of one or two Justices. Defined liberal and conservative groupings have emerged. It is easy to understand why many academics applaud the role played by the Supreme Court in the last 30 years of American history. Its record in rejecting segregation, controlling the excesses of American police, establishing rights of free speech and of women to an abortion has made its appeal to liberal middle class thinkers inevitable. Professor Perry’s argument is that an activist court holds an indispensable function in American society because the judges are not tied to the need to get re-elected. They can go beyond the moral conventions of their constituents in their evaluation of public policy. They have a responsibility for moral evolution. The dangers of this are obvious. It presupposes that one is justified in forcing on a society such liberalization of its moral values as is seen to be necessary by a group of elderly and rather insulated gentlemen. It presupposes that they will always have the right answers. The fact that the underlying philosophies adopted by the majority of members of the Court in its recent history have met with approval of ‘right thinking people’-that is Professor Perry, you and I-is no guarantee that the next generation of Justices will come up trumps.
102
Book reviews
The author is at pains to distinguish between ~nterpretivism which is something more than a merely technical exercise, but involves the Court’s basing its decision on value judgments constitutionalized within the US Constitution, and non-interpretivism where the Court acts as policy-maker basing its decision on value judgments derived from outside the Constitution. He seeks to argue not merely the correctness of the Court’s functioning in such a way, but that it is necessary for the proper development of American society. This is subject to the important quali~~ation referred to earlier that the policy-making, whilst it does go outside of and beyond the value judgments of the framers of the original Constitution, must not go against their value judgments. Perry observes the policy-making function of the Court where it has exercised its federalist responsibility to invalidate State action and again where it has ruled on the separation of powers. In both areas the Court has shown itself prepared to countenance relationships very different from those presupposed in the written Constitution, although in recent decisions there is some evidence of a retreat from its more advanced position. But primarily the author is concerned with the noninterpretive, policy-making, value creating role of the Court in the field of human rights, with particular attention being focused on freedom of expression and the equal protection provisions of the Constitution. He has more than sufficient ammunition to convince me of his argument that the Supreme Court has, with increasing frequency, adopted a policy-making role for itself. In part this is forced on it by the nature of the Constitution. Ambiguities and gaps can often be met within the exercise of interpretation. But in some areas the gaps are cavernous and the decision-making exercise goes beyond the abilities of normal interpretive techniques and requires creative judgments. The need to define the compass of free speech is a good illustration of this. There is a similar need for the Court to determine the scope of ‘cruel and unusual punishment’, though the difficulty which it is having in fixing the proper constitutional parameters of capital punishment shows the problem of reconciling the impermanence of judicial personalities and the need for some degree of certainty. The interpretive problem is much greater in the application of the ‘due process’ clause to the States. It is a feat of creative gymnastics to derive from this the right of a woman to an abortion. Though the decision in Roe v. Wade is one of great merit and one comm~ding widespread support in the States, it establishes a principle which is hardly best effected in a society by nine elderly judicial fathers. It is even more disturbing to think that it could now be overturned if President Reagan is able to make further judicial appointments. There are too many skeletons in the Supreme Court cupboard for me to join in any eulogy for its current creative instincts. J. A. Andrews University College, Aberystwyth Jesse Dukeminier and James E. Krier, Property, Boston and Toronto: Little Brown, 1981. xxviii + 1457 pp. No doubt it is rare for an American law school casebook to be reviewed in the pages of this journal. The work edited by Dukeminier and Krier on property law merits some attention from those involved in the law and economics enterprise not because it offers anything substantial to the corpus of scholarship in this area but rather because it shows how students of a notoriously technical subject can have their
G. Tullock, Trials on Trial: The Pure Theory of Legal Procedure, University Press, 1981. xiii + 255 pp.
99
Columbia
In this important and original text, Tullock applies the techniques now widely utilized in the economic analysis of the substantive law to the analysis of legal procedure. Explicitly, Tullock rejects the notion that legal procedure should be fair, in some sense, as between the parties involved in favour of pursuing the joint objectives of accuracy and low cost which characterize efficiency in legal procedure as Tullock sees it. Tullock utilizes a simple set of models, readily comprehensible by lawyers without formal training in the techniques of economic analysis; firstly to discuss efficient procedures where the law is unambiguous and the court is called upon to determine only the facts; secondly to define efficient procedures for interpreting or supplementing the law where it is ambiguous or undefined; and thirdly to evaluate within the efficiency framework the approach of courts in the reforming of laws which they find offensive. Finally, he applies the efficiency calculus to the role of courts in interpreting and enforcing the Constitution-indeed also to the protection of the Constitution from intervention by the courts. Throughout the text, Tullock distinguishes Anglo-American legal procedures from the methods of other legal systems in order to determine the relative efficiency, as above defined, of these systems in the various aspects of their functioning. The text is unlikely to prove popular with practising US lawyers, since Tullock is no friend of the adversary system particularly as it operates at such high cost in the USA, where contingent fee facilities are prevalent. From the efficiency viewpoint, Tullock generally would look for a reduction in litigation, especially over issues of legal definition of relative general insignificance, would look for some control over litigation costs, if necessary via the ‘taxing’ control granted by United Kingdom courts over lawyers’ fees and, more provocatively, would replace the adversary approach whenever possible by the non-adversarial tribunal approach as encountered for example in France. Although Tullock views improvements in the accuracy of the courts as having public good characteristics, this is not because such improvements are likely significantly to change the percentage of cases that are decided correctly but rather because they tend to reduce the number of cases where the parties go to court. Tullock is unwilling to have the legal process subsidized for this reason by fee mitigation since this would counter the latter tendency. Once again, his support is reinforced for the specialized independent tribunal (if Tullock really does believe that such bodies could resist penetration!). The book is stimulating, provocative, well-written and strongly recommended, especially to all those who rent-seek through the legal process, whether knowingly or not. A must for the student of law and economics. Charles K. Rowley Center for the Study of Public Choice George Mason University Michael J. Perry, The Constitution, the Courts, and Human Rights, New Haven and London: Yale University Press, 1982. xi+ 165 +(footnotes and index) 74 pp. In 1834 a Missouri Army Surgeon took his slave to Illinois where State law forbade slavery and then on to an army post where slavery was outlawed under the Congres-
100
Book reviews
sional Missouri Compromise. In 1838 he returned to Missouri, and later the slave sought a declaration that he had become a free man when his feet touched free soil. In 1850 a Missouri court declared him a free man but in 1852 an appeal court ruled he was a slave and remained a slave in Missouri. So the scene was set for what is perhaps the worst case ever to have gone to the United States Supreme Court, Dred Scott v. Sandford. It would have been sufficient for the Supreme Court to have held that, since Missouri was a slave State, the condition of slavery still attached to Scott in Missouri. But in one of its early exercises in policy making the Court went much further and ruled by a strong majority not only that Scott was still a slave, but that Congress had no power to limit the expansion of slavery by law and that the Missouri Compromise, restricting the geographical limits of slavery, was unconstitutional. Three members of the Court, including Chief Justice Taney, went so far as to say that no negro, even if a free man, could hold citizenship in the United States. The founding fathers of the United States had been brought up on a diet of 18th century rational liberalism with its stress on equality and freedom but, not unnaturally, the Constitution itself and the first Amendments studiously avoided anything which would upset the political and economic balance of the new country with its Southern dependence.on slavery. However, by the time the Supreme Court was giving judgment in the Dred Scott case in I857 the attitude of the majority of Americans towards slavery was very much changed and its economic significance was fast disappearing. Within four years Lincoln was to become President. In 1883 eight of the nine Justices held the Civil Rights Act of 1875, designed to prevent discrimination in public places, to be unconstitutional. This facilitated the passage of Jim Crow laws by Southern States to enforce segregation and, when the Louisanna Law was challenged in 1892, the Supreme Court was happy to cite several precedents establishing the reasonableness of such laws; and so the ‘separate but equal’ doctrine of Plessey v. Ferguson was established. Many of Roosevelt’s reforming measures in the mid-thirties were struck down by the Supreme Court and it was not until he had been returned for a second term with a majority of more than ten million votes that the Court’s attitude toward New Dealing legislation which interfered with the traditional faissez-faire relationship of labour and capital began to change. Between 1937 and 1941 Roosevelt made seven appointments to the Supreme Court and firmly established it as a liberal body, although the liberalism of his Court was of a relatively non-interventionist kind. The more radical decisions of Brown v. Board of Education (1952), Mapp v. Ohio (1961), Roe v. Wade (1973) and those that followed them depended on a Court that was not only liberal but confident, interventionist and mature. The end result is that those whose understanding of the Supreme Court is confined to its recent history tend to think of it as a body which is liberal, interventionist, exciting and wholly in keeping with all that is best in rational and decent thinking. It is not merely an arm of government in the United States, it is also an institution of great public moment. For the educated middle classes of East Coast America the Court’s latest pronouncement on police powers, press freedom or abortion are awaited with almost as much interest as the latest results of the Dodgers, Red Sox or Orioles. And how Justice Sandra Day O’Connor will vote on ‘women’s issues’ is a topic which has court watchers sitting on the edge of their seats. In a rather conceited book Professor Perry comes down firmly in favour of the legitimacy of the interventionist approach of the Supreme Court and argues for a policy-making power going well beyond the conventions contemplated by the
Book reviews
101
framers of the Constitution, or as he calls it extra-constitutionalpolicy making. The synopsis of his argument is that the Court is justified in going beyond the value judgments established in the Constitution but must not go against those value judgments. The weakness of his theory is of course the subjective element inherent in any assessment of what goes beyond and what goes against the value judgments inherent in the Constitution. Again, as Perry admits, a defence of policy-making decisions by the judiciary in human rights cases presupposes that there are right answers to political and moral questions. It also presupposes that the Court always comes up with the right answers and of course that we can all agree on what are the right answers. Most Americans would like to forget the Bed Scott case and the appalling history of Jim Crow legislation. Professor Perry confesses that more fundamental work needs to be done. He regards his essay as a beginning and not a culmination of his work on the subject. Indeed he threatens to continue writing on various relevant issues ‘for another thirty or forty years’, though he does admit that he may be forced from time to time to change his mind and argues that the publication of the present essay is to advance discussion of his theories. The real difficulty that I have in digesting his views, apart from the pretentious language with which they are expressed, is the inherently unrepresentative nature of courts. This seems to me an overwhelming argument for depriving them of any powers that are political rather than interpretive. Whilst I accept that courts are a necessary institution of government in the sense that order is dependent on the judicial system and constitutional order may be dependent on the constitutional judicial system, I suspect the values of judges. We currently have the spectacle of a number of American Supreme Court Justices hanging on to office in the hope of depriving a Conservative President of the opportunity of changing the character of the Court not merely for his own presidency but for the next and possibly the next presidency but one. When the electorate cast their votes for Reagan they gave him authority to govern for four years. The accident of judicial deaths and resignations could give him authority to dictate the judicial attitudes of the Supreme Court for a period well beyond his own office. Indeed the position has already been reached where decisions of the Supreme Court on many of the more important issues of human rights are decided by the ‘floating’ votes of one or two Justices. Defined liberal and conservative groupings have emerged. It is easy to understand why many academics applaud the role played by the Supreme Court in the last 30 years of American history. Its record in rejecting segregation, controlling the excesses of American police, establishing rights of free speech and of women to an abortion has made its appeal to liberal middle class thinkers inevitable. Professor Perry’s argument is that an activist court holds an indispensable function in American society because the judges are not tied to the need to get re-elected. They can go beyond the moral conventions of their constituents in their evaluation of public policy. They have a responsibility for moral evolution. The dangers of this are obvious. It presupposes that one is justified in forcing on a society such liberalization of its moral values as is seen to be necessary by a group of elderly and rather insulated gentlemen. It presupposes that they will always have the right answers. The fact that the underlying philosophies adopted by the majority of members of the Court in its recent history have met with approval of ‘right thinking people’-that is Professor Perry, you and I-is no guarantee that the next generation of Justices will come up trumps.
102
Book reviews
The author is at pains to distinguish between ~nterpretivism which is something more than a merely technical exercise, but involves the Court’s basing its decision on value judgments constitutionalized within the US Constitution, and non-interpretivism where the Court acts as policy-maker basing its decision on value judgments derived from outside the Constitution. He seeks to argue not merely the correctness of the Court’s functioning in such a way, but that it is necessary for the proper development of American society. This is subject to the important quali~~ation referred to earlier that the policy-making, whilst it does go outside of and beyond the value judgments of the framers of the original Constitution, must not go against their value judgments. Perry observes the policy-making function of the Court where it has exercised its federalist responsibility to invalidate State action and again where it has ruled on the separation of powers. In both areas the Court has shown itself prepared to countenance relationships very different from those presupposed in the written Constitution, although in recent decisions there is some evidence of a retreat from its more advanced position. But primarily the author is concerned with the noninterpretive, policy-making, value creating role of the Court in the field of human rights, with particular attention being focused on freedom of expression and the equal protection provisions of the Constitution. He has more than sufficient ammunition to convince me of his argument that the Supreme Court has, with increasing frequency, adopted a policy-making role for itself. In part this is forced on it by the nature of the Constitution. Ambiguities and gaps can often be met within the exercise of interpretation. But in some areas the gaps are cavernous and the decision-making exercise goes beyond the abilities of normal interpretive techniques and requires creative judgments. The need to define the compass of free speech is a good illustration of this. There is a similar need for the Court to determine the scope of ‘cruel and unusual punishment’, though the difficulty which it is having in fixing the proper constitutional parameters of capital punishment shows the problem of reconciling the impermanence of judicial personalities and the need for some degree of certainty. The interpretive problem is much greater in the application of the ‘due process’ clause to the States. It is a feat of creative gymnastics to derive from this the right of a woman to an abortion. Though the decision in Roe v. Wade is one of great merit and one comm~ding widespread support in the States, it establishes a principle which is hardly best effected in a society by nine elderly judicial fathers. It is even more disturbing to think that it could now be overturned if President Reagan is able to make further judicial appointments. There are too many skeletons in the Supreme Court cupboard for me to join in any eulogy for its current creative instincts. J. A. Andrews University College, Aberystwyth Jesse Dukeminier and James E. Krier, Property, Boston and Toronto: Little Brown, 1981. xxviii + 1457 pp. No doubt it is rare for an American law school casebook to be reviewed in the pages of this journal. The work edited by Dukeminier and Krier on property law merits some attention from those involved in the law and economics enterprise not because it offers anything substantial to the corpus of scholarship in this area but rather because it shows how students of a notoriously technical subject can have their