Thinking Like a Lawyer: Wrong Triangles

By Robert H.


What are lawyers good for?  Well here is one thing: Economists are better than you at noticing economic trade offs.  Engineers are better than you at noticing design trade offs.  We lawyers may just be better than you at noticing the trade-offs inherent to rule making. 


This may be oversimplified, but I think the following is a good model for how lawyers think about rules.  Imagine you've got n triangle.  The vertices are labeled "simple" "clear" and "good outcomes in the case(s) at hand."  When contemplating a rule change, pretend the current rule puts you in the middle of the triangle.  The problem with making and updating legal rules is that any move towards one vertex is liable to move you away from another. 

For example, Alex Tabarrok just blogged about a decision in which the Supreme Court ruled that some unsupervised state regulatory boards aren't exempt from the anti-trust act.  In this case, the Court ruled that a state regulatory board made up of dentists can't try to create a monopoly in tooth whitening for their own industry.  Tabarrok, not a lawyer, thinks that Kennedy was balancing federalist concerns (ie, letting states have the authority to regulate without federal interference) with concerns about regulatory capture.


Nope!  Or at least, not entirely.  He was also balancing along the triangle, as Alito's dissent makes clear.  "Dentists can't use regulatory capture to make us all pay more for tooth whitening" is CLEARLY the right result (good outcomes), even if you love federalism.  The problem is that getting there creates either ambiguity (moves away from "clear") or complexity (moves away from "simple").  That's because the new rule -- regulatory bodies like this need state oversight to be exempt from anti-trust law -- begs the question of what counts as sufficient state oversight.  That question can either be left unanswered for district judges to work out on a case-by-case basis, which creates an ambiguity, or it can be worked out in exacting detail now or at a later date, which will create complexity.  Complexity and ambiguity are bad, but Kennedy thought it was worth it in this case to get good results.


Alito didn't.  He wanted a simple rule -- if a state says a regulatory body is backed by the state then that's good enough, and the regulator is exempt from anti-trust.  That would have moved us away from good outcomes (now dentists get to screw us) but towards "simple" and "clear" (we now know exactly what sort of regulatory bodies are exempt, and the rule for telling us that that is relatively simple). 


Obviously there is more to deciding a case than imagining this triangle, there was certainly more going on here than imagining a triangle, and some laws are so awful that you can improve them along all three of these dimensions.  But there is definitely a truth here lawyers are sensitive to and most people are not: the world is really complex, our moral judgments are really complex, and if you want real world legal outcomes to match your judgment of right and wrong you are going to get law that is either very complex (which has costs) or which puts a lot of the burden on individuals applying ambiguous directives to the facts at hand (which has costs).   The result is universally disappointing law: if the law gets an unfair result it is bad; if it is so impenetrable you need to hire an expert to explain it to you it is bad; and if the best your lawyer can say is "well, it could go either way, the judge gets a lot of wiggle room here," it is bad. 


Good laws are less bad; no laws are good.

Is The New York Ban On Tiger Selfies Constitutional?

By Robert H.

No. New York’s ban on Tiger Selfies is almost certainly not constitutional.

What is a Tiger Selfie?

It is a picture of yourself posing next to a live, unrestrained (though probably stoned) tiger.  Men in New York use them to attract women because we are a squalid culture  that  hoards and sleeps and feeds and knows not God.

Why is it unconstitutional?

Because it is a content based ban on speech.  The government actually has a lot of freedom to restrict when and where and even how you say things.  “No protests in the park without a permit,” for example.  It has way, way less authority to ban speech based on the *content* of the speech. "No protests against gay rights in the park without a permit." 

In this case, pictures are a kind of speech, “men posing with tigers” is the content of that speech, and banning it puts the government in hot water.

So New York Can’t Do This?

Maybe they can!  If you narrowly tailor your content-based restriction to promote a compelling government interest, the Courts will uphold a content based ban on speech.

Wait, “We Don’t Want Tigers Tortured and Idiots Mauled Over Dating Profiles” Isn’t a Compelling Government Interest?

It Probs is!  But the law may not be sufficiently narrowly tailored.  Here's why:

The Supreme Court very recently struck down a law banning depictions of animal cruelty.  Essentially, the law didn't let you have a photo or video of an animal being hurt or killed if it would be illegal for you to hurt or kill the animal that way in the same jurisdiction the video existed in.  So, for example, a video of someone crushing a marmoset was illegal in a city where it was illegal to crush marmosets.  The Court’s reasoning in striking the law down was that it was overbroad -- it effectively constrained lots of legitimate activity.  So, for example, imagine you go Marmoset hunting in a state where that is legal, film it, and take the video to a city where it is *illegal* to hunt marmosets.  Even though the activity being filmed was totally legal when and where you did it, even though it isn't the more morally objectionable depictions of animal cruelty the law was targeting, you are now guilty under the statute.

This looks analogous to that.  If Siegfried wants to take a picture with his pet tiger in a state where it is legal to have pet tigers, that activity seems perfectly legitimate to me, even if he later takes the picture to New York.  And while it's true that there probably isn't a whole heck of a lot of legitimate "men by tiger" depictions out there, the ratio of "legitimate" to "bad" "men with tiger pictures" seems A. hard to prove, and B. likely to mean you are taking out roughly as much legitimate as illegitimate speech. 

So why might it still be constitutional?

Because the law is complicated and stuff.  More specifically, there may be relevant laws I have missed and courts may find the analogy to the animal cruelty case weaker than I do and I haven't even read the law so what do I know.  This isn't a brief to the Supreme Court, here I'm just winging it. 

Give me "Liberty" or Give me *Liberty*?

By Robert H.

We are fast approaching a world where “liberty” is not just an important, but a key constitutional principle.  Two quick examples: 1. “Liberty” has become so central to Justice Kennedy’s jurisprudence that academic clevermen are starting to argue it is the key to understanding his otherwise scattershot rulings.  That’s 1/9^th of Supreme Court rulings animated by the principle of "liberty."  2.  Among more conservative members of the Court, the word is also popping up as a guidestone.  For example, Justice Scalia’s dissent in the Obamacare case was thematically, if not legally, rooted in a desire to protect individual liberty.  Take the closing sentences of the dissent, “The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today's decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.”

This focus on liberty should deeply, sincerely trouble originalists, because “liberty” is a word that has  radically changed its meaning since the foundational generation.  To get a sense of its current dominant meaning, take a look at the full paragraph from which that Scalia quote is pulled from:

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections — notably, the restraints imposed by federalism and separation of powers — are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections [*2677]of freedom the most important ones, for which reason they alone were embodied [**573] in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today's decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

It seems to me that “liberty” is used interchangeably with “personal freedoms” there.  Structural limits on federal power protect “personal freedom,” presumably freedom to do as we will without government interference, and therefor they protect “liberty.” 

But the founders, while they used “liberty” to mean “personal freedoms,” made important and widespread use of at least one other meaning of “liberty.”  I’ll give you two examples:

1.  Franklin’s famous quote, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” does not mean what you think it means. Benjamin Wittes has the story, but to summarize, Franklin was a member of the Pennsylvania colonial legislature when he said that, and he said it in the context of a tax dispute.  The legislature claimed it had the right to tax the Penn family in order to provide for frontier defense, the Penns were willing to offer the legislature money for frontier defense as a gift, but only so long as the legislature abrogated any right to tax them, and Franklin was speaking out against that bargain.  “You can have your money for frontier defense [temporary safety], but only if you give up a big part of your power to tax [essential liberty].”  The “essential liberty” being given up isn't personal freedoms, it’s the prerogative of a democratic legislature to tax citizens.  Not what libertarians typically mean by the word “liberty” today. 

2. Look at this quote from Federalist 18:

Philip [of Macedon] gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the Amphictyonic council; and by his arts and his arms, made himself master of the confederacy.

To my mind, in that context the “liberties of Greece” mean something more like “self rule” than “personal freedom” in that passage.  For one thing, it’s not clear to me as an historical matter that the average Hellene had less personal freedom under Philip.  For another, the essay in general is about the danger of loose confederacies being dominated by outside powers, and that passage specifically is about Phillip taking over Greece.  They aren't talking about the danger of tyrants to personal freedom, nor about what Phillip did to the personal freedom of Greeks after his takeover.

Those examples are not exhaustive, and they indicate some weird meaning of “liberty” used by the founders that seems to have more to do with self-government than personal freedom.  Fortunately, the foudners explained themselves.  This quote is from the declaration of the first continental congress (IE, the one that didn’t declare independence):

Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council.

Hey, that makes sense!  To the founders, representative democracy was foundational to liberty, and liberty meant the same thing as “free government.”  There was at least a sense in which “liberty,” to the founders, didn’t mean “personal freedom,” it meant “free government,” and the cornerstone of that was the right to participate in your own, representative democracy.  The legislature not being able to tax people is an assault on “liberty” in that sense, because it robs power from the representative government.  A king taking over some democratic city states is an assault on “liberty” in that sense, because it replaces representative goveryment, however flawed, with monarchy.  Americans not getting to sit in parliament is an assault on “liberty” in that sense, because they aren't being allowed to participate in representative government.    

Note that this kind of means the exact opposite of the other meaning of liberty.  If liberty means “personal freedom, especially from the government,” then a government that can tax me is a government under which I am less free.  But if liberty means “the right to participate in an empowered, representative parliament,” then if my legislatures can’t vote to tax people I have *less* liberty.  To tie it back to Scalia’s dissent, Scalia thinks separation of power protects “liberty” because it limits government and thus promotes personal freedom.  But it is also possible that it protects “liberty” because distributed power prevents republics from turning into tyrannies, thus protecting our right to participate in representative government.  In the former calculation, the federal government having the power to make us buy healthcare is an inherent assault on liberty because it makes us (potentially) less personally free.  In the second calculation, the federal government being able to force us to buy healthcare is supportive of liberty, since it empowers the legislature, and it only harms liberty if that power helps give rise to tyrants (which isn’t to say it’s constitutional.  Obviously “how does this affect liberty” isn’t the only question you ask when determining the constitutionality of a law, under anyone’s jurisprudence).

So, originalists, beware “liberty!”  The founders meant two things by it, one of them is counterintuitive, both are in tension, and it is rarely clear which the founders were talking about without significant investigation (and maybe not even then).  Everyone else, if you see an originalist like Scalia appealing to “liberty” in a commerce clause case (IE, a clause that never uses the word), get very, very nervous.  He’s using a term with an unclear original meaning in a place he doesn’t have to (and probably shouldn’t).  That is suspicious.   

Why Do Libertarians Like Federalism? Why Does Anyone?

By Robert H.

I know why libertarians like government of limited powers: libertarians think government is an armed thug that forces people to do things at gunpoint, so they want to use it to force everyone to live in a minarchy at gunpoint.  The idea that the rest of us might have a right to have some sort of democratic say in how big government should be, or that democracy might by a better tool for ordering society than their personal whims and beliefs, can be dismissed.  After all, people keep voting for things libertarians dislike, so democracy must be wrong and need limits.*

But I don't get for one moment why libertarians are so into American federalism.  I honestly don't.

Here was the idea behind the constitution: government of near unlimited power with that power divided horizontally (executive, legislature, judiciary) and vertically (federal vs states).  The second division is federalism.  Theoretically it could work to avert tyranny (state and federal power will check each other) and promote limited government (if government gets too onerous in a state you can move, federal power can't get too onerous because it is limited).  

In reality state power was used to enslave people, institutionalize racism, and perpetuate corruption on a scale not even the federal government could match (Tammany Hall was not a national machine).  And states weren't even any more friendly to small government: during the lochner era we had the states desperately trying to create a nanny state and the federal judiciary just as frantically dismantling it.  It was the mirror image of what a pro-federalism libertarian might expect.

And yet libertarians act like federalism was a great idea.  I honesty don't get it.  "Unlimited power distributed vertically" is such a far cry from "limited power" that I don't see the theoretical appeal.  And the states have been so abusive of liberty historically that I don't get the appeal in practice.  Honestly I just do not get this.  Every scrap of American history seems to show that going back to a more federalist structure would just lead to fifty, worse run, more abusive little welfare states, not libertarian utopia.  We would be the EU, where citizens get to vote with their feet for exactly which kind of socialist (little s) state they prefer.  And if we were really lucky, some of those states would enslave millions of people again,

Man, f--- federalism.  Someone explain to me how anyone still embraces this terrible idea.

*Not to over-praise democracy.  It's dependent on good social norms, rights sometimes function in a counter-majoritarian way, and the iron triangle sucks and distorts democratic outcomes.  Libertarians can and do overemphasize these problems.