Constitutional Showdowns: a good thing for constitutional and political efficiency

August 10, 2007 9:40 AM

Constitutional Showdowns. Eric Posner and Adrian Vermeule analyze constitutional showdowns, ask what rate and level of showdowns would be socially optimal, and ask whether socially optimal showdowns will be supplied by government institutions acting to promote their policy preferences and institutional interests.
posted by dios (9 comments total)

I could not find a non-SSRN/pdf version of the paper. My thanks to anyone who can and posts it here.
posted by dios at 9:44 AM on August 10, 2007

That's an interesting looking paper, thanks.

One question (not being a US constitutional lawyer) - in the conclusion the authors argue that:

"As against the passive virtues, however, decisive constitutional conflicts and precedentsetting showdowns should actually be encouraged where the value of waiting for more information is low, where similar issues will frequently recur in future generations, so that the value of settling questions now is high, and where legal uncertainty will impose high costs in the future."

but to what extent is any constitutional conflict ever considered "settled"?
posted by patricio at 10:08 AM on August 10, 2007

What's the big deal with the constitution? I hear it's just a goddamn piece of paper.
posted by mullingitover at 10:42 AM on August 10, 2007

Very typical Chicago school theory in which law is viewed using economic theory, sort of freakonomics meets constitutional theory. I liked it though. I do agree with the Implications section, especially as it relates to active virtues, i.e. it leads to a more settled law. I am not sure this is exactly breaking news but I think they did a nice job preparing this. We may get to see this in action soon.

Eric sure is a chip off the old block.
posted by caddis at 10:49 AM on August 10, 2007

Scribd's slurped it in, here. That's in Flash, but Word & plain text versions are available there.
posted by Pronoiac at 11:15 AM on August 10, 2007

Mullingitover: Well, it sure as hell isn't a suicide pact.
posted by dismas at 12:27 PM on August 10, 2007

I thought this was reasonably interesting; contra the title of this post, the authors conscientiously refrain from claiming that constitutional showdowns are generally a good thing, restricting themselves to the weaker claim that they are not obviously a bad thing. They also do a good job emphasizing that the costs and benefits they discuss are essentially impossible to quantify and that there's no empirical way to settle the questions they raise.

A couple of interesting quotes:

"At any given level of (expected) goodness or badness of the rules, clarity is better than lack of clarity."

Is this true?

"In some domains, however, there is an intertemporal tradeoff: less institutional conflict now guarantees more institutional conflict over time. Where aggregate future conflict, even properly discounted, imposes greater social costs than present confict, and present conflict would avoid future conflict, a showdown in the current period would be socially beneficial."

Can we think of any domains where less conflict now guarantees more institutional conflict over time? I would guess that in the domain Posner and Vermuele are considering -- constitutional law and separation of powers -- there are lots of conflicts which, once avoided, become less salient and never arise again. Predicting what the constitutional fights of the future will be is a tough business.
posted by escabeche at 1:50 PM on August 10, 2007

I thought the intertemporal tradeoff bit wasn't given nearly enough attention compared to the other elements of the paper. Particularly, what are the consequences of the general time inconsistency in the system, and more importantly the differences between individual branches' time inconsistencies? The three branches operate in very different time periods, from 4-8 years for the President to life appointments in the Supreme Court, which must have a considerable effect on their choices, even if the branches have similar incentives with regard to showdowns. If they had talked more about intertemporal substitution, which I wish they had, the difference in rates of time preference would become key.
posted by Aloysius Bear at 2:13 PM on August 10, 2007

horrible pseudo-scholarly claptrap. posner can go hang for all i care, but vermeule should be out there thinking clear, strong thoughts and writing powerful, thought-provoking papers. what an incredible disappointment legal academia is.
posted by facetious at 8:13 PM on August 10, 2007