Instrumentalism v. Formalism (or Truth v. Beauty)

I've been following a little debate on legal instrumentalism and its drawbacks versus legal formalism and its drawbacks. I'm amused by this debate. Amused and alarmed. Lawrence Solum opens things up with a post detailing Brian Tamanaha's critique of instrumentalism. The pertinent quotes can be found in the abstract, but let me offer my own synopsis. Legal instrumentalism is viewed as the prevailing legal theory of the day. But the author cautions us to realize it hasn't always been so, in the past, formalism was the dominant epistemological framework for jurisprudence (I agree with this, but doesn't everyone know that?). Then the author argues that if the instrumentalist experiment, where law is viewed as an instrument for social change, what (and I"ll quote here) results is:

a Hobbsean war of all against all that takes place within the legal order over control of the legal apparatus. Opposing groups within society will attempt to seize or co-opt the law in every context possible, and in every way possible, to enlist or wield it on behalf of achieving the ends they desire. Even those groups that might prefer to abstain from seizing the law are forced nevertheless to engage in the contest, if only defensively to keep it out of the hands of their less restrained opponents. Spiraling conflicts will ensue with no evident halting point or termination (short of exhaustion of resources or total victory by one side).

Depressing huh? First, let me just say this, to think that anything worth a damn has ever been anything but a "Hobbsean war of all against all" is just naive. Really folks, don't they require people to read anymore? Where I went to college, they did, and we had a name for people who used this sort of pessimism as an argument, "the world is flat club." As in, "yes you are right, the world is flat. Now run along and fall off why don't you?"

Second, and more importantly, in sum, the author, and Solum in his lexicon, argue that legal realism is undone by its own conceit. Its turned into a slippery slope of relativism. Here is where the rising tide of legal formalists, and the dominant crowd of liberal apologists, miss the boat entirely. Legal realism's critique is to the entire study of jurisprudence exactly what Nietzsche's critique is to the entire study of philosophy: a gutt check so severe, of such dramatic proportion, that the entire body of thought may not ever recover.

What makes this critique so important is not its substance either. No one cares, or at least they shouldn't care, what Nietzsche's personal philosophy is or was. Just as no one cares, nor should they care, what was the political agenda of Karl Llewellyn. The critique is so devasting because of its simplicity, its elegance, its inability to be trumped by a more simple explanation. Law is veiled power, so say the realists. And philosophy is veiled power as well, so says Nietzche. How can either discipline ever bounce back from this?

The doom and gloom Tamanaha sees isn't "instrumentalism", its the last gasps of law itself. The rise in law and economics shows where the "law" is heading, to the statistician's corner where bean counters determine legal outcomes based on scientific principles and social engineering precepts. Law, my friends, is dying. And just like its precursor, philosophy, it is being replaced by science proper. Until legal theorists start realizing this, and stop trying to escape to some alternate reality like formalism, they are doomed to repeat the silly dance philosophy departments in America play with Kant every day: stripping content out of contentless thought and championing the most empty freedom ever found.

The realist critique allows political reality to consume law, and legal theorists are left running for the formalist foothills. But these offer no sanctuary, legal formalism is as impotent a jurisprudence as no jurisprudence at all. Those theorists working to pin the law back to its natural beginnings are the only ones trying to save us from anarchy, those theorists debating instrumentalism versus formalism are fiddle players at the inferno. Sorry, but it needed to be said. More fiddle tunes can be heard here, and here.

Lindsey Graham, Political Genius

First, in the summer of '97, he started the coup against Gingrich. Lots of folks said one of the two wouldn't last in DC long, turned out to be Gingrich. Next up, he goes after leader Frist, again lots of folks said one of the two wouldn't last long, and today it looks like its gonna be Frist first.

This morning, the christian conservatives rise up in a rapture over this, their ire directed squarely at Sen. Graham, and as a result, Lindsey looks just like the independent, straight-talking, statesmenlike senator that South Carolinians just love. With every step they take against him, with every threat they throw at him, one more re-election is assured for the smooth talking southerner.

The only question is, whose Lindsey going after next? And further, can anyone stop him?

Sidelining the Surgeon

Make no mistake about it--surgeons don't like their operations cancelled, and Frist is going home with a "what am I good for now" mentality. His colleagues forcibly wrenched the scalpel from his hand, and for its effect on his psyche, they might just as well have turned the scalpel and thrust it between his legs. Politicians retreat from defeats to consider the next contest; surgeons retreat with shock, horror, and deep depression. For the first time in his life, he has been publicly disrespected, and in the immediate aftermath he cannot cope. The White House will help him spin it, but he will not recover from the simple fact that some his colleagues were unwilling to trust his judgment in the operating room. His will not be permitted to become the surgical serial killer of the senate.

Long on Porridge

... I am not among those who fear the people. They, and not the rich, are our dependence for continued freedom. And to preserve their independence, we must not let our rulers load us with perpetual debt. We must make our election between economy and liberty, or profusion and servitude. If we run into such debts, as that we must be taxed in our meat and in our drink, in our necessaries and our comforts, in our labors and our amusements, for our callings and our creeds, as the people of England are, our people, like them, must come to labor sixteen hours in the twenty-four, give the earnings of fifteen of these to the government for their debts and daily expeses; and the sixteenth being insufficient to afford us bread, we must live, as they now do, on oatmeal and potatoes.

-- Letter from Thomas Jefferson to Sameul Kercheval, 7/12/1816

The surgeon and his subordinates.

Confronting Frist requires disabling his surgeon mentality--of entitlement not only to high fees and wide public respect but also to absolute obedience in the operating room. He will succeed as long as his colleagues who disagree with him nevertheless defer to his "leadership"--which is exactly what they are saying they will do. Only if it becomes obvious that he is not worthy of their respect, that he's an imposter in the operating room, will they withhold their obedience. And only then will he retreat. There's plenty: (a) Frist stands publically accused by his peers of violating medical ethics and issuing incompetent diagnoses; (b) his employee stands formally indicted in federal court for conspiracy to deprive American citizens of the right to vote; and (c) he stands humiliated as a liar on the senate floor, for saying he believes filibusters of judges are unconstitutional when he's filibustered them himself. And you're going to pass the scalpel to this quack?

You don't understand Frist

. . . unless you understand that he is a surgeon--first and always. And you don't understand surgery unless you understand that it is a carefully scripted drama, where the single actor is also the stage director and all other players are just that--players. (Not for nothing is the operating room called a "theatre" in most of the English speaking world outside the USA.) Nor do you understand surgery unless you understand that it presumes certainty at the outset--"there is a lesion or other anomaly, it must be excised or corrected, I will do it, and everybody else will assist me at my direction." And finally, you do not understand surgeons unless you understand what they will not admit but what is universally true--they carry a lifelong sense of entitlement, really a "right," to be overpaid and overly deferred to. That sense of entitlement is a direct result of medical and residency training practices that first of all inflict intense overwork (80 hours a week for four or five years is the current limit for residents--a limit that is bitterly opposed by most senior attending physicians and hospital administrators who complain that it deprives them of the cheap labor they need to make their own practices and institutions economically viable). But this overwork is accompanied by equal doses of a "pay day someday" promise of good times coming in their later practice--when fees will be high and community adulation will be profuse. More later on how to confront, resist, and defeat a surgeon who thinks he performing surgery on the body politic. (Hint: hit him where it hurts--at his sense of entitlement to respect for honesty and competence.)

Huh?

You mean Conservatives outnumber Liberals? Oh shit, plan B guys, this ain't gonna work.

Fraud Is as Fraud Does

Many of you read the Wall Street Journal article today on Adelphia's creditors. Its pretty good as a short context of the fight over the auction proceeds winds down. On one side are Arahova creditors (an operating company acquired by Adelphia pre-petition) and on the other side are the senior holdco creditors at Adelphia. The article briefly describes the intercompany claim which senior holdco creditors assert entitles them to be paid out first (essentially, they argue THEY are Arahova creditors to the tune of $1.9B). The article then says that Arahova noteholders assert the whole intercompany payable is a result of fraud (which everyone knows was pretty substantial at pre-petition Adelphia).

Here is what the article didn't say. Just before filing bankruptcy, Adelphia (the holding company) filed consolidated financial statements in their scheduled SEC disclosure. In this statement, Adelphia listed a $1.9B note receivable from Arahova. Just after this, they filed chapter 11. The receivable had no note, no explanation, no discussion in the MD&A section. Generally speaking, an almost $2B receivable gets a little mention somewhere in the company's statements. It was pretty clear to everyone then, as it is now, that receivable was bull. No one can point to anything which would justify the intercompany claim. Adelphia was likely cooking the books, as they did before, to make themselves appear to be a creditor to the operating companies where value still existed.

Recently though, the spread between senior holdco bonds at Adelphia and the Arahova notes has tightened. The market seems to be impressed with the defense holdco creditors are mounting, and feel a deal is in the works. This may be, I have no way of knowing for sure. However, as respecting the law, it seems clear to a lot of us that in a chapter 11 case where the financial statements prior to the petition were fraudulent, the party arguing for the veracity of those statements bears the burden of proof. If you unwind the transactions and tranfers between Arahova and the other Adelphia opcos at the time (this is a favorite point of those arguing the holdco creditor position) you have a hard time meeting this burden. In fact, it doesn't even pass the smell test. Markets need to know that when they see fraud, its going to stay fraud, absent proof to the contrary. Unless a silver bullet appears, I don't think the holdco creditors have much by way of proof. (note: if there was a silver bullet, it probably would have already appeared). If I had a few million to play with, I'd go long Arahova and short Adelphia holdco notes.

Grist Ground Frist

You thought the Dems were the only party capable of a little factionalism?

Supreme Court

Overrules ban on interstate wine shipments... "And there was much rejoicing."

This occurs just in time for my mid-summer party. O'Connor, Rehnquist, Stevens and Thomas... you are NOT invited, the rest of you are.

Want to laugh?

Click here, and follow the link to an mp3 file, about a 3 minute voicemail which will leave you in tears.

Prelude to a Discourse

At his invititation, I just posted the below over at RT's site. I'm hoping the slightly more right/center crowd over there will have some interesting things to say. Many of you already know I'm working on this. And several of you are aware of a great many details already. What follows was originally written as a precis when beginning the article. Some of it is out of date, though the overall gist of it is still where the paper is going. Please feel free to comment, question, criticize or anything else. I'll have the final work out by mid-June. The likely title for the piece is Discourse on the Devaluation of Sovereign America.

In America at 1790, the term citizen was defined far more narrowly than it is today. The school of progressive, liberal democracy takes pride in this fact. Indeed, all of America is especially proud of this. As a people, we boldly insist that citizenship be broadly defined, so that all voices are counted. Today, ownership of property no longer pre-qualifies the rights and privileges of citizenship. Today, African Americans, free from the bonds of servitude, are counted as a whole person, instead of the three-fifths they once were. And today, women too, are counted as the equals of men. Citizen, today, means much more than citizen in 1790.

It is therefore ironic, to say the least, that as we have insisted on incorporating those previously marginalized sets of society into the term citizen, at the same time we have systematically eliminated the representation that these new citizens may have in our federal government. As this paper makes clear, a white, propertied, Anglo male from 1790 enjoyed a level of access to his Congressman that today is found only in the smallest of municipalities. So, while citizen may include more subsections of society than did the same term in 1790, the power each citizen wields, the ability each American has to gain access to their federal Representative, is far, far less. As America has grown, access to the federal government has failed to keep pace.

The future of American democratic government therefore, remains unstable due to the ever expanding population and the current limitation of its lower house to 435 members. At a certain theoretical point, failing to increase the level of representation will cause a qualitative shift. One morning, after the birth of some American child, America will no longer be a democracy, by definition. The cause of this situation is clear: the jealous guarding of Congressional power by the House of Representatives since 1911.

For support, the essay relies heavily on assembled statistical evidence. Abstracts containing the data tables are supplied. Of all the statistics studied so far, not one is more troubling than the following: if today’s level of federal representation were applied to the year 2000, there would only be 416 members in the House of Representatives. In other words, over the time span of just one presidential term, America’s citizens have lost almost twenty seats in the House. Were this result achieved through violence, Americans would be outraged. Instead, population growth combined with a size limitation scheme continues to ravage the citizenry’s voice in Washington.

9-1

Could be a good weekend. also betting on Bandini. He's sufficiently pissed off right now.

UPDATE: didn't win. But man was that a race. Jesus H.

Is the "d" for Dishonest?

In an apparent reversal, dKos founder Markos Moulitsas now says Blair's rightward drifting policies of "New Labour" are the reason for Labour's loss of around 100 seats yesterday. Yet on Sunday, May 1, the hard hitting "kos" as he's known, said that the Tories were the ones guilty of betraying their party's principals. In this article published by the UK's Guardian News, kos draws a clear analogy between "republican-lite" Democrats or DINOs (Democrats in Name Only, as he calls them), and labour-lite Tories. Surmising that " the direct parallel between disaffected American Democrats and disaffected British Tories was startling", kos went on to describe how Blair's ability to "frame" the political debate gave Tories a major disadvantage.

Yet now, kos says Blair has been "undone." dKos readers may be rightfully puzzled. Which is it? Was the "labour-lite" strategy kos criticized on Sunday the reason for Tory success? Or is kos now mistaken about Blair's right-leaning policies? What seems clear enough today though is that whichever party won yesterday's election, kos had half a headline already written "xxxx-lite is rejected by voters".

UPDATE: apparently I'm not the only one catching this. How many more of these square pegs has kos forced into round holes?

"Sometimes, a Fool is just a fool."

Armando, a front-page contributor to dKos, is either a fool, a moron, or both. In his latest excruciatingly long front page post, he rips those ripping the filibuster repeal movement, including Professors Juan Cole and Cass Sunstein; who I have it on high authority are both bright, well-spoken, and perhaps even well-read intellectuals. Of course, before exposing himself, Armando gives the obligatory "I definitely agree with this and that and this part too" and then lowers the boom "but I disagree with" ... Where I went to college, back when students were required to read, we had a Greek expression for this rhetoric: "men ... de". And we all noticed it was employed most frequently to obfuscate transparent mendacity. The whole of Armando's screeching may be found here.

After a brief perusal, I was struck by the thumetic charge of Armando's post. He was clearly advocating a position that sought to place objective standards into an otherwise ideological debate; the confirmation of judges. In his view, Republican partisanship against Clinton appointees was merely ideological, whilst the same could not fairly be said of Democratic partisan maneuvering against Bush appointees. Instead, he felt confident that judicial temperance, or lack thereof, was the critical inquiry and Democrats had correctly objected to those scoring too low on the temperance scale. So I asked what seemed like a simple question, prefaced by a stipulation that some scholars use the Lochner opinion (bottom few paragraphs) as an example that results based judging has its own philosophy. My question was, simply, could it be the case that "results based judging", which Armando equated to judicial intemperance, is in fact an ideology unto itself?

The response was less than reassuring. He instructed me to read (ironically it turns out) the Slaughterhouse Cases to see why my question, and the whole "substantive due process canard" was simply a "red herring" (again, ironic term usage). It just so turns out I'm quite familiar with Slaughterhouse. And was unaware that the dead-lettering of the privilege and immunities clause of the 14th Amendment had anything at all to do with my, much more philosophic, if not logical, question on results based judging. I replied in kind. To which Armando laid bare what I had long ago suspected... he's an idiot.

"Because substantive due process, the target of conservatives for their accusations of results based judicial activism, springs from the destruction of the P&I clause. Pretty simple really."

Scratching your head? Me too. Like a first year law student, Armando hears the word "Lochner" and quickly shouts back "Slaughterhouse" without ever reading the question. Armando knows that the right order is Slaughterhouse then Lochner, but again, he never read the question! He even throws in a pedantic reference to Llewellyn (which I take to be a reference to legal realism, and according to the order, follows right after Lochner!). Does this yelping recitation without any supporting reason remind you of something?

No Armando, it isn't simple, really. Firstly, substantive due process does not spring from the destruction of anything. Sure Slaughterhouse (1873) is often used as an introduction to substantive due process in a first year Conlaw class, but that fact alone doesn't mean anything on its own. Substantive Due Process was alive and well long before Lochner (see Herbert Spencer's Social Statics, from 1851. Spencer argues for a "law of life" and "natural law" which restricts the only legitimate use of government to the police power and individual rights protection... sound like a certain Justice you may know? Similarly, see Cooley's Treatise on Constitutional Limitations - from 1868 ). If substantive due process theory springs, it springs from classical laissez-faire philosophy like that articulated by Cooley and Spencer , or from legal formalism itself (assuming its stipulated there's a difference between the two-which is conventional, but in my view, incorrect). Secondly, conservatives are not targeting substantive due process. If anything it is quite the opposite. The libertarian impulses of Justices like Scalia, and the originalist impulses of Justices like Thomas, make such an assertion absurd.

A cursory glance of literature dealing with laissez-faire Constitutionalism and substantive due process would undoubtedly have clued Armando in. Yet, there he was throwing around loaded phrases like substantive due process and citing to cases like Slaughterhouse. There he was arguing this was all so simple. And still it turns out, he is either using all these terms unknowingly, or unwittingly, or both.

Coincidentally, another dKos user emailed me the following quote from Armando, made just a short time ago: " Idiotic is people talking about something they clearly have no knowledge of." Well, Armando, you certainly are the expert!

"This Week" w/George Snuffalumpugus

One of the most entertaining segments I've seen in awhile was today's interview by George Stephanopolus(sp?) of the right Reverand Robertson (aka Fat Pat).

Fat Pat was asked by the young Snuffalumpugus whether or not it was Fat Pat's belief that only Christians and Jews should serve in the federal judiciary?

Fat Pat stumbled, stuttered, then said he's not sure about blanket statements like that, but in the end, he thought that federal judges must share the same philosophy as Americans have always shared.... so on and so forth.

... [long pause] ... [scratch head] ... I give up.