The University of Chicago Law School Faculty Blog

Awards for the Justices

Who are the activists on the Supreme Court? Which justices show the most partisan voting patterns? Such questions are usually answered anecdotally. Thomas Miles and I have tried to approach them more systematically, with some simple statistical methods. We have compiled and analyzed a large number of the justices' votes over an extensive period, and we now have some answers, in the form of awards for Judicial Neutrality and Judicial Restraint -- and less desirable awards for Partisan Voting and Judicial Activism.

Those answers are scheduled to appear in an oped in the Los Angeles Times this Monday. (Guesses are welcome.) A small preview: One member of the current Court has the honor of finishing second for both Judicial Neutrality and Judicial Restraint. That is, one member of the Court upholds conservative decisions (from federal agencies) and liberal decisions (ditto) at about the same rate, and thus fails to show a partisan tilt -- while also showing a high level of restraint, defined for purposes of analysis as a high level of willingness to uphold the decisions of a coordinate branch of government (the executive branch, where we have a lot of data). 

The member of the Court who finishes second for both neutrality and restraint is: Justice David Souter.

Michelle Goodwin on the Trade in Human Body Parts

Last week, Visiting Professor of Law Michelle Goodwin was interviewed on WHYY's "Radio Times with Marty Moss-Coane." She discussed the case of three Philadelphia funeral home directors who were recently charged with selling bones and tissues from the deceased without permission from the donor or his or her family, as well as the growing legitimate and black market trade in human body parts. You can listen to the discussion in RealAudio here.

Susan Bandes Mentioned on Sentencing Law and Policy

Douglas Berman's Sentencing Law and Policy blog links today to a paper by Susan Bandes, who is a visiting professor at Chicago this year, called "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty." See what folks over at SL&P are saying about her paper here.

Update: Lawrence Solum's Legal Theory Blog has also picked it up.

Sunstein on "Causation in Tort"

The ever-prolific Cass Sunstein has a new book out from Harvard University Press, Worst-Case Scenarios; he also recently added a paper to SSRN, written with William Meadow of the University of Chicago Children's Hospital, entitled "Causation in Tort: General Populations Vs. Individual Cases." The abstract reads as follows:

To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.

Rx for the Blogosphere?

Thanks Glenn for that question. Let me begin by discussing the role of government, and then turn to the private sector.

In short, government should impose no mandates on anyone. As you note, Republic.com argued that government might consider certain responses, intended to promote exposure to diverse positions. Fortunately, the discussion was tentative and didn't endorse any of those responses. Unfortunately, those responses would be unjustifiably intrusive, a bit silly, and even unconstitutional. For that reason, I'll omit the details, thank skeptical readers for their convincing objectons to what I suggested, and confirm what you say, which is that Republic.com 2.0 rejects government mandates (and says that they would be unconstitutional).

Any responses should be private. By way of introduction, let's recall a really impressive moment from the most recent election: Senator Rick Santorum's concession speech. Santorum began by praising Bob Casey, saying that he was a fine man and that he would do a fine job for Pennsylvania. Then he specifically asked his supporters to give a round of applause to Casey. Here's the best part: When the applause was tepid, Santorum added, firmly and spontaneously, "Come on, give it up, give him a round of applause!" There was real grace, and charity, in what Santorum did.

For the blogosphere, here are some small ideas. If you're a liberal blogger, you might include some good conservative blogs in your blogroll. If you're a conservative blogger, you might include some good liberal blogs in your blogroll. It might make sense for bloggers to develop an informal norm of reciprocity. If you have a clear ideological position, and find yourself linking only to people who already agree with you, it might be worthwhile to include a few links to people who don't agree with you -- emphasizing that they might be right on a particular question, or at least that their view is reasonable and worth considering.

Orin Kerr, at the Volokh Conspiracy, is a terrific blogger, in part because he seems to me a model on this count. His own views are hard to characterize, but he avoids contempt, and better still, he tries to make the best, rather than the worst, of opposing positions. He doesn't attack people's motivations; he assumes that people who disagree with him are acting in good faith (and that they are unlikely to be making obvious errors, and haven't lost their senses). And with all this, he can be quite funny.

Of course some positions are unreasonable; no one needs to link to those who argue that the attacks of 9/11 were an American conspiracy, or that slavery was, and is, very good. But our topic has been the division between Red States and Blue States, or conservatives and liberals, and it would be pretty amazing if it turned out that one or another side has a monopoly on reasonableness. (Actually it would be amazing if it turned out that political life is sensibly understood in terms of two "sides.") For readers, knowledge of group polarization, and its effects, should be able to provide a degree of inoculation.

We've been discussing some of the risks, but much of your work has emphasized the amazing potential of the blogosphere to aggregate dispersed information, in a way that is likely to produce a lot more knowledge than a world dominated by the mass media. (Cf. Hayek's critique of socialist planning as compared to the price system.) You're right to emphasize that potential, which is only beginning to be realized; it's a key point when considering the state of the blogosphere.

Polarization and Polarization Entrepreneurs

Are you too optimistic? Maybe. Let's consider some data, bearing on the question of Red States vs. Blue States.

1. For many years, the United States has been conducting a remarkable natural experiment, involving the random assignment of judges to three-judge panels. Here's one thing we know. On DDD panels (all-Democratic panels), Democratic appointees show VERY liberal voting patterns in ideologically contested cases -- much more liberal than on DDR panels. On RRR panels (all-Republican panels), Republican appointees show VERY conservative voting patterns -- much more conservative than on RRD panels.

One way to think about this is that if you create what might be considered "Red State" federal panels, you'll get much different votes, from "Red State" judges, than on "Red State/Blue State" panels. The same applies to what might be considered "Blue State" federal panels. A disabled person, challenging certain conduct as discrimination, has a much better chance before DDD than before RRR.

For present purposes, here's the kicker: For both individual Ds and individual Rs, the voting patterns are far more moderate on RRD and DRR panels.

2. A few years ago, I was involved in a little experiment in Colorado. Liberals in Boulder were assembled to discuss climate change, affirmative action, and civil unions for same-sex couples. Conservatives in Colorado Springs were assembled to discuss exactly the same issues. The liberals spoke only with the liberals; the conservatives spoke only with the conservatives.

The most important result of the discussion was to make the liberals more liberal and more extreme on all three issues, and to make the conservatives more conservative and more extreme on all three issues. Another result was significantly to decrease diversity among liberals -- and also among conservatives. (Note: I'm speaking here of the difference between people's anonymous predeliberation statements and their anonymous postdeliberation statements.)

In short, deliberation among like-minded people increased extremism at the same time that it squelched diversity of view.

For the blogosphere, the implications are not obscure. The blogosphere has many "Red State" sites and many "Blue State" sites (often created by polarization entrepreneurs). These sites look like RRR or DDD; they are similar to our Colorado experiment. To that extent, the results should be a) greater extremism and b) less internal diversity. A third likely result is greater contempt for those on "the other side."

True, you're right, exposure to competing views can deepen division (especially if we're called names). True, many people read diverse sites and do not live in echo chambers. True, the blogosphere is creating communities of interest that overlap. True, many bloggers lack any kind of simple ideological orientation.

But some helpful empirical evidence has already been compiled, and even at this early stage, one thing seems true: Numerous people are listening only or mostly to people who already agree with them. If you're too optimistic, that's why.

The Great Diversity-Participation Tradeoff

Hi Glenn! You raise a number of good points and questions, and I'd like to approach our large topic by focussing on your last paragraph and especially your last sentence.

My speculation is this: To the extent that people are using the blogosphere to congregate in groups of like-minded types, they are more likely to be politically active. To the extent that people are hearing lots of different points of view, they are more likely to sit on the sidelines. In short, there is, for many people, a tradeoff between a) exposure to diverse views and b) political participation.

Intuition helps explain the possibility of such a tradeoff. Like-minded people, talking only with each other, get more confident and more extreme. (This is the concern of Republic.com 2.0.) If people are living or communicating in echo chambers, there will ultimately be a kind of Babel effect, in which different groups won't quite understand each other. (Cf. the debate over climate change.)

The bad side of all this includes greater extremism, more anger, and less understanding of one's fellow citizens. The good side is that if you are confident and charged up, you're more likely to be active.

So much for intuition. Diana Mutz' superb 2006 book, Hearing the Other Side: Deliberative Versus Participatory Democracy, offers a lot of evidence, and is full of implications for the blogosphere. If you deliberate with a wide range of people, you are less likely to be engaged in politics (apparently because you conclude that different views are reasonable, and it might not be worth spending your time fighting). If you talk with people who agree with you, you are more likely to get involved. (I bet that Mark Penn knows this; I'm sure that Karl Rove does. Cf. the success of conservative and liberal groups on law school campuses.)

On the blogosphere, some people operate as polarization entrepreneurs. They attempt to create enclaves of like-minded types, intensifying their antecedent convictions. (I won't name names.) The Army of Davids includes a lot of people who have been energized by polarization enterpreneurs -- and as a result, their judgments may have been badly distorted. But it is worth emphasizing that the same processes that create the distortions help to fuel the participation.

As Mutz emphasizes, this benefit is puchased at a cost: Those who have been polarized are not likely to be tolerant of others, or even comprehending, and they might well fail to persuade those who tend to disagree with them. My main point is that to the extent that the blogosphere helps to create information cocoons, it does indeed energize people.

There are obvious questions here about the complex role of two virtues: respect and charity. Any thoughts on any of this? Do we have any disagreements thus far?

Jonathan Nash on "Standing and the Precautionary Principle"

Jonathan Nash, Visiting Professor of Law at the University of Chicago, posted a paper to SSRN earlier this week entitled "Standing and the Precautionary Principle." The abstract is below.


Standing and the Precautionary Principle

JONATHAN REMY NASH
Tulane University School of Law; University of Chicago Law School
U of Chicago, Public Law Working Paper No. 178
Tulane Public Law Research Paper No. 07-06
Columbia Law Review, Vol. 108, No. 2, 2008

Abstract:    
In Massachusetts v. EPA, the Supreme Court upheld Massachusetts' standing to challenge EPA's refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputed whether the science of global warming was sufficient to establish standing. Absent from both opinions was discussion of whether there would be standing if the science were uncertain but the potential harms large and irreversible. This Paper argues that “precautionary-based standing” - grounded upon a fundamental principle of environmental law, the precautionary principle - should apply in such cases.

Precautionary-based standing would not upset existing standing doctrine. First, its application would be limited, and could further be limited to cases brought by a sovereign. Second, there already are less stringent standing requirements in areas where society has deemed precaution to be appropriate. Third, the catastrophic and uncertain nature of the injury in a precautionary-based standing would satisfy Article III.

The argument here is important in several ways. First, reliance upon the precautionary principle might attract the support of people who question the certainty of the science but recognize the large risks associated with global warming. Second, precautionary-based standing would be available to address future environmental crises where scientific understanding that the threat is real may lag. Third, precautionary-based standing eventually may generate a broader evolution of standing jurisprudence. Fourth, importation and application of the precautionary principle to questions of standing will provide a logical and stable setting in which the precautionary principle might develop and flourish.

What the "Unitary Executive" Debate Is and Is Not About

Not long ago, a wild-eyed man came up to me in a large city, pushing a piece of paper into my hand and saying, in an alarmingly loud voice, "DO YOU KNOW WHERE THE IDEA OF THE UNITARY EXECUTIVE COMES FROM?" I couldn't help but laugh, because I do know (more or less), and the answer isn't quite what he said (which was Hitler, or it might have been Stalin). Because the idea of the unitary executive is so much in the news, and because it is creating a lot of confusion, it might be useful to set out some of the basics here.

The Supreme Court: What Conventional Wisdom Misses

According to conventional wisdom, the Supreme Court is equally divided between a conservative wing and a liberal one, with Justice Anthony Kennedy acting as the swing voter. But there is something extremely strange about this view of the current situation. By the standards of the recent past, the liberal wing isn't liberal at all.

According to conventional wisdom, the Court has long been evenly balanced between left and right, and it has finally shifted a bit to the right under Chief Justice John Roberts. But there is something strange about this view as well. The Court shifted quite dramatically to the right between 1972 and 2000, indeed between 1980 and 2000, and yet people continued to speak of an alleged "balance" even as the dramatic shift was underway.