Brooklyn Law Review - Brooklyn Law School

Brooklyn Law
Review
Volume 67
2002
Number 4
SYMPOSIUM: COGNITIVE LEGAL STUDIES:
CATEGORIZATION AND IMAGINATION
IN THE MIND OF LAW
A Conference in Celebration of the Publication of
Steven L. Winter’s Book,
A Clearing in the Forest: Law, Life, and Mind
I NTRODUCTION ∗
Lawrence M. Solan†
This volume contains the proceedings of a Symposium
that took place at Brooklyn Law School on October 26-27, 2001,
entitled “Cognitive Legal Studies: Categorization and Imagination in the Mind of the Law.” The Symposium—the fourth published program of Brooklyn Law School’s Center for the Study
of Law, Language and Cognition1—focuses on the ideas that
Steven Winter develops in his important new book, A Clearing
∗
©2002 Lawrence M. Solan. All Rights Reserved.
† Professor of Law, Brooklyn Law School.
1 The earlier publications have been: P.N. Johnson-Laird, Causation, Mental
Models, and the Law , 65 BROOK. L. REV . 67 (1999); Roundtable: The Cognitive Bases of
Gender Bias, 65 BROOK. L. REV . 1037 (1999) (containing an article with that title by
Virginia Valian, and contributions by Mariane LaFrance, Marc R. Poirier and Elizabeth M. Schneider); The Jury in the Twenty-First Century: An Interdisciplinary Conference, 66 BROOK. L. REV . 971 (2001).
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in the Forest: Life, Law, and Mind.2 Winter’s straightforward
premise is that the legal system can only establish principles
through the people who act on its behalf, and that conventional
legal argumentation makes incorrect assumptions about how
people—including, naturally, those in the legal system—
reason.
Relying on advances in cognitive science during the past
quarter century, Winter argues that reasoning is not linear
and hierarchical the way some legal writers and much legal
doctrine present it. Rathe r, it is imaginative, and relies heavily
on metaphorical structure and cognitive models developed from
experience. That is, we reason more from the bottom up than
from the top down. As critics since the beginning of the twentieth century have observed, rule-like accounts of the law work
only by sweeping a great deal of indeterminacy under the rug.
However, critical movements that revel in the law’s seeming
incoherence miss the fact that significant regularities come to
light once one begins to reconceptualize the law in terms of the
kind of thinking in which people really engage in everyday life.
Winter uses advances in cognitive science to do just that.
This challenge to conventional legal thinking has enormous ramifications for traditional legal domains including
statutory interpretation, constitutional analysis, and the nature of common law reasoning. With depth and insight, Winter
explores each of these topics and others. It is the breadth of
this approach to legal reasoning that led to this Symposium
being named “Cognitive Legal Studies.”3 In fact, anyone looking casually at the table of contents would likely regard this
volume as a collection of interesting, but seemingly unrelated
articles on various topics in legal theory. Contributions range
widely in subject matter, including the 2000 presidential election, constitutional theory, race, legal education, law and literature, criminal law, and the process used by judges in reasoning about controversial cases. At a different level, however,
the collection becomes entirely coherent: All of the essays in
this volume are about how phenomena seemingly at odds with
conventional legal understandings become coherent in light of
certain contextual threads, often metaphorical, that run
2
3
School.
STEVEN L. WINTER, A CLEARING IN THE FOREST: LAW , LIFE , AND MIND (2001).
The title was the idea of Gary Minda, Professor of Law, Brooklyn Law
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through them. Thus, the collection itself is a metaphor for its
content.
Winter’s work is heavily influenced by the writings of
George Lakoff4 and Mark Johnson. In the issue’s first essay,
“Law Incarnate,” Professor Johnson describes how Winter’s
book fits into the broader project of cognitive science in which
Lakoff, Johnson, and many others have been engaged.5 For
those who have read neither Winter’s book nor the underlying
cognitive literature, it is an excellent introduction. Johnson
argues that the categories we use in everyday life are embodied
and motivated by our experience. It is only in terms of this motivation that one can understand them at all. He then uses
these and other insights to anchor Winter’s contributions to the
study of law and mind.
Frank I. Michelman gets right to the heart of the matter
in “Relative Constraint and Public Reason: What is ‘The Work
We Expect of Law?’” Michelman picks up on Winter’s notion of
moderate indeterminacy in law, and asks what it says about
the ability of legal institutions to do what we might expect of
them. Of course, the question immediately forces us to ask just
what it is that we might expect law to do. This, in turn, evokes
normative issues of self-governance, which are the principal
focus of Michelman’s essay. Drawing on work from political
theory, jurisprudence, and Winter’s approach to cognition and
law, Michelman asks whether cognitive science might have
something to say about “public reason,” which is an essential
aspect of ensuring basic liberties. In so doing, he questions the
need for special “legal” institutions in light of the deeply entrenched, socially motivated mental models that drive positive
law.
Jeremy Paul’s essay, “Changing the Subject: Cognitive
Theory and the Teaching of Law,” brings the cognitive perspective to legal education. Paul is the co-author of a book that encourages a more conceptual approach to legal education.6 The
first part of the essay explores his agreements and disagree4 Especially central to Winter’s work is G EORGE LAKOFF, WOMEN, FIRE AND
DANGEROUS THINGS (1987). Although he was not able to contribute to this volume,
Professor Lakoff attended and spoke at the symposium.
5 See GEORGE LAKOFF & MARK JOHNSON, PHILOSOPHY IN THE FLESH: THE
EMBODIED MIND AND ITS CHALLENGE TO WESTERN THOUGHT (1999).
6 RICHARD MICHAEL FISCHL & JEREMY PAUL, G ETTING TO MAYBE (1999).
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ments with Winter’s approach. The second part explores ways
in which cognitive theory can form the basis for reformation in
the law school curriculum. Many problems that lawyers face
recur regardless of the doctrinal area in which the problem
arises. While law schools purport to train students to “think
like lawyers,” they spend precious little time saying anything
enlightening about how lawyers think. Advances in cognitive
theory like those developed by Winter in his book can help law
teachers take more seriously the stated educational goals. The
curriculum already has cross-doctrinal courses, such as Legislation and Statutory Interpretation (which, incidentally, I
teach), and could do much more. Recurring conceptual problems, like the rules versus standards issue, or the problem of
what Paul calls “two-fers” (dealing with situations in which the
law sets forth two alternative criteria, and the individual
meets neither in full, but both in large part) can form the basis
of much more legal teaching. Paul’s essay contains a number of
creative ideas along these lines, with concrete examples.
In “The Subject and Object of Law,” Lawrence Joseph
also concerns himself with normative issues. Joseph looks to
poetry as the expressive form in which authors try hardest to
transcend their linguistic heritage. They are, of course, unable
to do so (poets are human too, you know), but the effort shows
a deep commitment to grappling with the most important human experience. Joseph argues that actors in the legal system
should certainly be obliged to make serious efforts to come to
grips with legally central concepts such as “morally
just,” but rarely even try. He looks to recent work of Robin
West7 to set out the problem, and to the promise of
experientially-based legal reasoning as a starting point for
seeking an answer.
Jonathan Simon, in “Governing Through Crime Metaphors,” talks about the metaphorical structure of talk about
criminal law. Politicians and judges alike consistently describe
the population as a set of victims of violent criminals, justifying
an ever-escalating set of laws and harsh punishments. Simon
looks at the “war on crime” metaphor, developed as part of
President Johnson’s statement issued with his signing the
7
(1999).
Robin West, Taking Moral Argument Seriously, 74 CHI .-K ENT L. REV . 499
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Omnibus Crime Control and Safe Streets Act of 1968.8 Interestingly, the war metaphor, itself socially contingent, evoked
images of World War II, in which the population was mobilized
and willing to make sacrifices for the sake of preserving important values of society. The metaphor, for example, would have
been less apt if the Viet Nam War were the only American war
in memory at the time the bill was enacted. Simon discusses
other metaphors used to describe crime, and ends his essay
with the suggestion that a progressive political and legal
agenda might begin with serious consideration of its metaphorical foundations. He illustrates this point with a “war on
cancer” as a means of motivating aggressive environmental
policy.
D. Marvin Jones’ essay, “‘We Must be Hunters of Meaning’: Race, Metaphor, and the Models of Steven Winter,” explores race as an experientially-based, socially-constructed
concept. Drawing from arguments in his forthcoming book,9
Jones shows how the concept of race is built from societal decisions intended to create a caste-based social structure. He does
this through the use of narrative, a cognitive structure about
which Winter writes at length in his book. Jones principally
uses two stories to build his point: that of an escaped slave,
Henry Bibb, and that of the film, Guess Who’s Coming to Dinner. His essay uses these narratives to argue that not only is
the notion of race socially constructed, but that it is constructed out of contested cognitive models that help to explain
its cognitive complexity.
In “Freedom and Constraint in Adjudication: A Look
Through the Lens of Cognitive Psychology,” Dan Simon reports
on empirical work that he has conducted with colleagues about
the ways in which judges come to conclusions in highly contested cases. Simon is a law professor and psychologist, who
has been applying work in cognitive and social psychology to
legal settings.10 How is it that five justices in the majority can
adduce some thirty or fifty arguments in favor of their position,
and the dissenting four can do the same with respect to theirs,
without appearing to acknowledge, except for some nasty
8
Pub. L. No. 90-351, § 502, 82 Stat. 197 (1968).
D. MARVIN JONES , RACE , SEX, AND SUSPICION (forthcoming 2002).
10 See Dan Simon, A Psychological Model of Judicial Decision Making, 30
RUTGERS L.J. 1 (1998).
9
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quips, that there is another side to the story? That is, if, as
Winter argues, the law of the excluded middle is the source of
enormous misconception, why do judges keep returning to it in
their arguments? To answer this question, Simon relies on psychological literature that uses neural networks to demonstrate
the high value that people place on coherence. He relates these
findings to the themes of the Symposium, and more broadly to
issues in legal theory.
One theme running through both Winter’s book and the
essays in this volume is the importance of context in legal reasoning. It is conventional legal wisdom that the words in a legal document, for example a statute, must derive some of their
meaning from the context in which they are used. But Winter
uses context far more broadly and far more creatively. Legal
arguments are not only expressed in words that can only be
construed with respect to context, but the words that legal
writers use necessarily reflect the ways in which they frame
the world. His analysis of the famous debate between Hart and
Fuller over the hypothetical “no vehicles in the park” ordinance
illustrates this point well.11 The last two essays in this volume–
the first by Peter Gabel, the second by Winter, make this point
as they illuminate aspects of the 2000 presidential election.
Peter Gabel’s essay, “What It Really Means to Say ‘Law
Is Politics’: Political History and Legal Argument in Bush v.
Gore,” sees the 2000 election as resulting from the limited set
of images and schemas used in the political arena today. According to Gabel, the 2000 election demonstrates the final triumph of the Reagan Revolution. The post-electoral period provided for Gore the opportunity to rally behind the successes of
the civil rights movement in procuring for everyone the right to
vote. But instead of evoking images of Martin Luther King Jr.
calling for universal suffrage, and instead of arguing that the
refusal to count all the votes in Florida diminished the value of
the votes of the millions of working people nationwide who had
voted for him, Gore decided to look presidential and rally behind arguments about the rights of states to regulate their voting scheme without interference from the federal government.
These, of course, are the arguments that have historically been
used to oppose the civil rights movement. Gabel argues that
11
WINTER, supra note 2, at 200-06.
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the rhetoric of the Reagan years—family, the evil empire, and
federalism—had become Gore’s rhetoric as well, and had prevented Gore from making the arguments that his supporters
would have wanted to hear.
In the volume’s last full essay, “When Self-Governance
Is a Game,” Steve Winter puts his approach to legal reasoning
to work. Focusing on the 2000 election, Winter probes the significance of the “game” metaphor that pervaded discourse between election day and the Supreme Court’s decision. The issue
is not the fact of the matter—Bush supporters said right from
the beginning that Gore was a sore sport for trying to change
the rules of the game after it was becoming clear that he would
lose if the game were played as designed. The real question is
why the game metaphor caught hold, and was so effective a
way of presenting the dispute. The stakes were high. The use
of the “game” metaphor essentially pre-empted an alternative
conceptualization of the election as a matter of particpatory
democracy. Winter explains the dominance of the game analysis by exploring the evolution of the concept of “games” in contemporary culture. To summarize one point that he makes,
when we adopt our everyday experience of watching professional sports to watching a presidential election, we become
passive observers of a contest in which the pros duke it out according to a set of rules that is both fixed and arbitrary. This
surely explains a lot.
The Symposium issue ends with Gary Minda’s Afterword, “Steve Winter’s A Clearing in the Forest.” In it, Minda
describes some of the major ideas in Winter’s book, and uses
them to pull together many of the ideas in the Symposium.
Minda’s piece succinctly announces the promise of Cognitive
Legal Studies as a means for reforming both legal theory and
legal education.
No doubt readers will find the essays in this volume
provocative, and perhaps controversial. In fact, there is not
complete consensus among the authors on significant issues.
But the breadth of subject matter and richness of analysis
must inevitably lead one to respect the endeavor and recognize
its explanatory power. At the end of the day, the issue is really
a simple one: Won’t we learn more about how law functions if
we take more seriously the ways in which its players understand their world?
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LAW INCARNATE∗
Mark Johnson†
It is only in the last decade or so that there has been
significant work on cognitive science and law. Before that,
there was no such field as the “cognitive science of law.” The
reason for this is quite simple. First-generation cognitive science had nothing interesting to say about law because it was
based on erroneous assumptions about mind, thought, and language. First-generation cognitive science, which emerged in the
1960s, grew out of work in computer science and artificial intelligence that assumed that the mind was disembodied and that
thought could be modeled as a functional computational program. This view of cognitive science, which still remains quite
influential today, drew on views of thought and meaning that
were prevalent in information processing psychology, analytic
philosophy, and generative linguistics. Nothing in this par adigm either challenges or contributes to methods and analyses
that are available in traditional legal theory. Consequently,
that brand of cognitive science simply does not have much to
offer to the study of law (nor, I might add, to the study of the
mind).1
Another reason why there is so little good work to date
∗
©2002 Mark Johnson. All Rights Reserved.
† Mark Johnson is Professor of Philosophy at the University of Oregon. He is
co-author, with George Lakoff, of Metaphors We Live By (1980) and Philosophy in the
Flesh: The Embodied Mind and its Challenge to Western Thought (1999), and he is
author of The Body in the Mind: The Bodily Basis of Meaning, Imagination, and Reason (1987) and Moral Imagination: Implications of Cognitive Science for Ethics (1993).
1 Excellent accounts of the nature of, and problems with, first-generation cognitive science are given in TERRY WINOGRAD & FERNANDO FLORES, UNDERSTANDING
COMPUTERS AND COGNITION: A NEW FOUNDATION FOR DESIGN (1986) and FRANCISCO
VARELA ET AL., THE EMBODIED MIND: COGNITIVE SCIENCE AND HUMAN EXPERIENCE
(1991).
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on cognitive science and law is that it is so difficult to acquire
the requisite interdisciplinary background in all of the relevant
fields of study. Only a handful of people have been able to master the cognitive science research and also know enough about
the law and legal theory to draw out the relevant implications.2
Indeed, even within cognitive science, very few have the interest and breadth of learning to gain an appropriate knowledge
of linguistics, developmental psychology, cognitive psychology,
and cognitive neuroscience, and I suspect that none of the people in this small group has any substantial knowledge of law.
To make matters even worse, an equally small number of people trained in the law have even a superficial knowledge of
what is going on in the vast and ever-expanding fields of cognitive science today.
Happily, things have changed dramatically over the last
decade. The reason for this transformation is the emergence of
a second generation of cognitive science that challenged, on
empirical grounds, many of the fundamental assumptions of
first-generation cognitive science.3 This new approach produced
a growing body of empirical evidence that required a new view
of mind, thought, and language as both embodied and imaginative. Instead of seeing the mind as disembodied, the evidence
revealed that our conceptualization and reasoning are
grounded in our bodily experience, shaped by patterns of perception and action. Instead of seeing thought as algorithmic,
the evidence revealed that thought is at once constrained by
the logic of our bodily experience and at the same time dependent on various structures of imagination. These imaginative
processes are shaped by the nature of our bodies, our brains,
and the patterns of our interactions with our environment.
Imagination is therefore constrained and orderly, rather than
unruly and irrational.
If you apply these new results of contemporary cognitive
science to questions about the nature of legal reasoning, you
2 Examples of the analysis of conceptual metaphor in legal reasoning include
Carl S. Bjerre, Secured Transactions Inside Out: Negative Pledge Covenant, Property
and Perfection, 84 CORNELL L. REV . 305, 353-64 (1999); F. Stephen Knippenberg, Future Nonadvance Obligations: Preferences Lost in Metaphor, 72 WASH. U. L.Q. 1537
(1994).
3 The assumptions and results of second-generation cognitive science are
summarized in GEORGE LAKOFF & MARK JOHNSON, PHILOSOPHY IN THE FLESH: THE
EMBODIED MIND AND ITS CHALLENGE TO WESTERN THOUGHT 3-117 (1999).
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get stunning results. That is precisely what Steven Winter has
done in A Clearing in the Forest.4 With an unparalleled breadth
and depth, he explores the way recent empirical research from
the sciences of mind gives us a new understanding of legal reasoning as embodied, situated, and imaginative. Winter’s most
impressive achievement is the way he shows how embodied
organisms like us, interacting continually with our physical,
social, and cultural environments, come up with laws and legal
institutions that are at once constrained by our embodiment
and at the same time are imaginative, creative, and flexible in
their application to our ever-changing experience.
What distinguishes Winter’s work is that it exhibits a
depth of understanding of cognitive science that is nearly equal
to the depth and breadth of his understanding of, and experience with, the practice of law and legal theory. This places
Winter in a small and highly elite group of legal scholars who
understand, in a profound and detailed way, why cognitive science today requires us to rethink some of our most cherished
ideas about law. Winter’s project is to develop a ge nuinely productive dialogue between cognitive research (including cognitive neuroscience), the work of philosophers ranging from J.L.
Austin to Merleau-Ponty to Heidegger to Foucault, and the
mountains of legal theory (and practice) that have arisen over
the past hundred years.
The application of cognitive science to law rests on the
following assumption: Law is a human creation of human
minds dwelling in human bodies, in human societies, operating
within human cultural practices. And so, to understand how
law works, one must know how all these aspects of human experience and thought work. To oversimplify, we have got to
know how the “mind” works, and that is precisely the focus of
the cognitive sciences. Hence, the cognitive sciences are indispensable for a comprehensive and deep understanding of law.
Now, one is entitled to know why any of this should
matter. My answer is this: It humanizes law. It makes legal
reasoning comprehensible by explaining it as the result of basic
human capacities for meaning-making and for deliberation and
judgment. The picture that emerges from these analyses is that
4
(2001).
STEVEN L. WINTER, A CLEARING IN THE FOREST: LAW , LIFE , AND MIND
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legal concepts are, for the most part, not static, literal, contextfree principles, and yet neither are they arbitrary or radically
subjective social constructions. Winter traces a middle way between the extremes of objectivism and subjectivism. We do not
simply “discover” legal concepts and apply them to cases; nor
do we construct them out of thin air, driven only by our interests and our pursuit of power. Instead, they grow out of our
problematic, historically and culturally situated communal
practices and institutions. They are at once constrained by
communally embedded understandings and practices, and yet
they are open-ended in important ways that make it possible
for law to grow in response to significant changes in human
history. As Winter so eloquently expresses this, “what actually
stands behind the majestic curtain of Law’s rationality and
impartiality is nothing other than ourselves and our own, often
unruly social practices.”5 And the cognitive sciences have much
to teach us about ourselves, our social practices, and law.
When I say that Winter’s work “humanizes” law, what I
mean is that, by showing how law is the result of ordinary human processes of conceptualization and reasoning (many of
which are unconscious), we discover both why law is so important for us (why it can work the way it does) and also what its
limitations are. One of the most important lessons we can learn
from this work is how dangerous legal fundamentalism is. By
“fundamentalism” I mean the view that all meaning is specifiable in sets of literal concepts and propositions that can apply
directly to our given experience, and that reasoning is a rulelike activity that operates logically and linearly with these concepts. In our culture, fundamentalism is understood to be a
religious and theological doctrine about the nature of religious
belief and revealed truth. But it is, in fact, a literalism and
objectivism about knowledge
and understanding that extends to all aspects of our lives, from
religion to morality to law to politics to science to art.6
5
Id. at xiv.
Analyses and criticisms of the objectivist views of meaning, reason, and
truth that underlie such fundamentalism can be found in MARK JOHNSON, THE BODY
IN THE MIND at xix-xxxviii, 1-17, 173-212 (1987); GEORGE LAKOFF, WOMEN, FIRE , AND
DANGEROUS THINGS 157-218 (1987).
6
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It is important to see that the fundamentalism (which
Winter calls the “rationalist” or “objectivist” model) is not limited only to traditional foundationalist accounts of meaning
and knowledge. He shows why many so-called “postmodern”
views of concepts, reasoning, and law are equally fundamentalist in their own way. Here there are two main versions of
postmodern fundamentalism: First, there are those who assume that, if there are no absolute foundations, then our only
alternative is subjectivism and relativism, which they complacently embrace. They thus buy into objectivism’s either/or view
of knowledge and meaning. They implicitly accept the fundamentalist idea that the only knowledge there is must be based
on absolute literal foundations. Second, there are liberal Wittgensteinians who pride themselves on having understood that
all our thought is framed by language games, but who then
naively proceed to analyze aspects of various language games
using objectivist tools and assumptions. Their very method of
analysis is based on fundamentalist views of thought and language, and so this stains their insights about the contextdependence of our conceptual systems and practices. In short,
the fundamentalism that Winter carefully dismantles and replaces with a cognitively realistic orientation, is a pervasive
objectivism that can be found throughout many of our most
popular views of meaning, thought, and language.
In some of my earlier work,7 I focused my criticism
mostly on the ethical version of fundamentalism, which I
named the Moral Law Folk Theory. According to the Moral
Law Folk Theory of ethics, morality is a system of universal
rules, ascertainable by human reason, and supposedly supplying strict guidance for ethically correct action.8 Reason, according to this objectivist view, guides the will by giving it moral
laws—laws that specify which acts are morally prohibited,
which are morally required, and which are simply permissible.
Universal reason not only is the source of all moral laws but
also tells us how to apply those principles to concrete situations. Moral reasoning, based on this view, is thus principally a
matter of getting the correct description of a situation, determining which moral law pertains to it, and figuring out what
7 See generally MARK JOHNSON, MORAL IMAGINATION: IMPLICATIONS OF
COGNITIVE SCIENCE FOR ETHICS (1993).
8 Id. at 1-12.
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action moral law requires for the given situation. The corresponding fundamentalist version of this in legal theory is, I
assume, fairly obvious.
One of the important things Winter has done is to show
why such a fundamentalism is both psychologically unrealistic
and also dangerous. The massive evidence for its psychological
unreality comes mostly from studies of category formation,
conceptual structure, and reasoning. The fundamentalist view
requires what is known as the classical theory of categories,
according to which a given concept is defined by a precise set of
necessary and sufficient conditions, that is, a set of properties
or features that jointly define membership in a particular category. Concepts of this classical sort are thought by objectivists
to provide the basis for moral and legal rules that can be applied to concrete situations. As Winter explains:
All of the perceived advantages of rules derive from their categorical
quality. The clarity, certainty, and predictability for which rules are
prized are (on this view) a function of the conclusive and unconditional nature of their coverage: If the posted speed limit is fifty-five,
then one may drive at fifty-five miles per hour. So, too, it is the absolute character of a rule—i.e., its status as a categorical reason for
decision—that enables a decisionmaker to absolve herself of responsibility by pointing to the rule as complete justification.9
Winter then proceeds to show that rules do not work this way,
partly because the concepts that make up the rules do not work
the way they are required to, and partly because rules only
work relative to a context of social and cultural practices, institutions, and cognitive models.10
The philosopher John Searle has given some nice examples of the situatedness of meaning that Winter is arguing
for.11 Now Searle is an objectivist and a literalist, so his analysis of the cases he discusses is misguided, I believe. But his
humorous examples can be appropriated in support of Winter’s
9
WINTER, supra note 4, at 187.
Id. at 186-222.
11 John Searle, Literal Meaning, in EXPRESSION AND MEANING: STUDIES IN
THE THEORY OF SPEECH ACTS 117-36 (1979).
10
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account. What Searle gets right is that the truth of even the
most straightforward propositions and directives rests on a
vast background of models, practices, and assumptions that
make it possible for us to understand and evaluate those
statements. Consider his example of the old philosophical
chestnut, “The cat is on the mat,” used by countless generations of unimaginative philosophers as an illustration of literal
meaning and truth conditions. “The cat is on the mat” is true, if
and only if the cat is on the mat.12 What could be more obvious?
However, as Searle points out, there is really nothing obvious
about this at all, for, in fact, our seemingly facile determination
of when the statement “The cat is on the mat” is true depends
on a large set of background assumptions.13
Consider a simple picture we could draw of my cat,
Beta, sleeping happily on a woven mat. Here, it is uncontroversially true that the cat is on the mat. But what would the case
be, for example, if the cat and mat had the same orientation as
in the picture of Beta and the mat, yet with cat and mat floating in outer space beyond the Milky Way galaxy?
Oh, you will say, everybody knows that we meant that
the truth conditions apply only within our gravitational field,
at or near the earth’s surface. So that would be like saying that
we render the sentence as “The cat is on the mat (this sentence
only applies at or near the surface of the earth or in some similar gravitational field).” The idea here is that we would just
have to build in the relevant contextual conditions as part of a
background presupposed any time we make truth claims. This
is the view held by many who think that legal rules and their
concepts are completely determinate. They think that what
we’re really doing in applying a law is just “making explicit”
what was “implicit” in the concept all along. But this won’t do,
even for the cat on mat scenario. Searle asks, what if we are in
a rocket ship in outer space and we see cat/mat pairs floating
by in various orientations.14 Some float by in the canonical cat
on top of mat orientation, while others have the mat turned
vertically, but with the cat touching the mat. It might be cor12
One can almost hear the nefarious Dr. Evil, of Austin Powers’ fame,
expostulating “Cat . . . mat . . ., Cat on mat, riiiiiight.” AUSTIN POWERS (New Line
Cinema 1997)
13 Searle, supra note 11, at 120-26.
14 Id. at 121.
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rect to affirm that the cat is on the mat in certain orientations
(including some non-canonical ones), even though we are outside the gravitational field near the earth. But this would be a
matter of what our purposes and interests were in stating
truths about cats and mats. We cannot eliminate the pragmatic
concerns and interests of the people to whom such utterances
make sense and who use such utterances to accomplish certain
coordinated communicative ends.
You can see the same point, Searle argues, in considering not just true or false descriptive assertions, but also “performative” speech acts like directives and orders. What if I order a hamburger, and you deliver it to me at the restaurant
encased in a two pound block of clear lucite plastic. Did I fulfill
your order, or not? Should you have said to me, “hamburger
with tomato and mayo, and hold the lucite.” No, you shouldn’t
have to say that, you don’t have to say that, and there is a good
reason why. Ordering a hamburger is an act performed within
what Schank and Abelson call a restaurant script.15 Members
of a certain culture share idealized cognitive models and
frameworks or scripts concerning what typically happens in
restaurants. There are various agents (customers, waiters,
cooks, bus boys, cashiers), various objects (food, silverware,
dishes, tables, chairs, money), and various typical action sequences (entering the restaurant, being seated, ordering, being
served, paying the bill, leaving). These scripted activities and
conceptual models vary depending on type of restaurant, time
of day, socio-economic class, etc. Some restaurants have plastic
“silverware,” some have the cashier identical with one of the
waiters, some have no waiters at all (as in fast food restaurants). We have highly articulated cognitive models of what it
means to order specific foods.
Such examples are not just silly nitpickings or entertaining mind -teasers. Behind their humor and entertainment
value lies an important point, even if Searle mis-analyzes those
cases and does not fully appreciate their significance and scope.
The important point is that any statements we make, any directives we give, any rules we lay down are applicable, not because the concepts specify their own determinate conditions of
satisfaction, but rather because we understand these concepts
15 ROGER C. SCHANK & ROBERT P. ABELSON, SCRIPTS , PLANS , GOALS, AND
UNDERSTANDING ch. 3, 42-61 (1977).
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and rules relative to shared idealized cognitive models, scripts,
and narratives that are tied to embodied experiences, communal histories, practices, and values. The rules can work, when
they work, precisely because of these framing cognitive models
and practices. They are not, as Searle mistakenly thinks,
merely non-propositional, non-semantic background assumptions. Rather, they are part of our conceptual apparatus by
which we make sense of and act purposively within concrete
situations.
One of the central accomplishments of A Clearing in the
16
Forest is that it mounts a massive empirical challenge to the
traditional objectivist, fundamentalist theory of law as rule
application. Winter sums this up as follows:
Thus, rules do work; it is just that they do not work in the rule-like
way supposed by the conventional view. . . . Tacit knowledge of a
rule’s motivating context is both what makes a rule readable and
what governs its reach. Because motivation acts as a frame for the
rule’s component categories, it also characterizes prototypes under
the rule. 17
The key notion here is motivation, where “motivation is a function of the existing background of sedimented cultural practice
and social experience: the customs, conventions, roles, routines,
institutions, objects and other artifacts that comprise the repertoire of which a society is constituted.”18 Winter concludes:
In other words, the ability to create cultural meanings that will be
understood as law is contingent on the available social practices, expectations, and mores. Law, then, is the unmistakable product of
human interactions as they are institutionalized first in social practice and then as cultural and legal norms.19
Winter then proceeds to apply this view of situated, embodied, imaginative meaning and reasoning to the analysis of
aspects of various well-known legal cases. In his treatment of
the Hart-Fuller debate over the interpretation of a rule prohib16
WINTE R, supra note 4.
Id. at 191.
18 Id. at 191-92.
19 Id. at 193.
17
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iting the use of wheeled vehicles in a public park, he shows
that, however “indeterminate” the concept vehicle may appear
to be in particular cases, our shared cultural, historicallyevolving conceptions of the nature, purpose, and meaning of
parks allow us to apply this rule with all the specificity we
could ever need.20 Winter’s analyses show that the total inadequacy of the conventional objectivist view of laws as rationalist
rules in no way undermines our ability to apply laws, because
laws are given meaning, purpose, and force by virtue of the
shared meanings, practices, and values that make up our
evolving cultural experience.
Notice, however, that acknowledging the role of human
practices in the understanding and application of law in no
way leads to subjectivism and relativism. The reason for this is
that human understanding and practices are constrained by
our embodied interactions with our environment. Using the
results about human thought that are coming out of the cognitive sciences, Winter is thus able to explain both the relative
determinacy and the relative indeterminacy of law. Law appears to be completely determinate, and to fit the conventional
objectivist or rationalist view of rules, whenever the case in
question straightforwardly matches some prototype within the
key concepts. Those are the easy cases—the cases at the “core”
of the concept—that give us the feeling of certainty, clarity,
and ease about what the law means. People out for a Sunday
drive are not allowed to take their car for a cruise along the
park pathways. Non-prototypical cases can be settled insofar
as they can be related to various noncentral members of the
category. This requires understanding the principles of extension from the central members, and it requires extensive
knowledge of background cognitive models. Because members
of a culture will have some shared views about the purposes of
parks, at least partial agreement about interpretation of laws
pertaining to parks will be possible. Yet there will always be a
relative indeterminacy and openness for any rules and laws we
construct. This is not a problem to be lamented, as if it undermines law; rather, it simply recognizes the indeterminacy that
makes it possible for law to be continuously renewed, relative
to changing conditions, values, purposes, interests, and expec20
Id. at 202-06.
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tations of societies.
As an example of this embodied, situated nature of concepts and rules, consider the spirited and acrimonious public
debate over the rules for counting votes that arose in the U.S.
presidential election of 2000. One poll conducted shortly after
the legal battle over whether a recount should be undertaken
indicated that a majority of the American voters were of the
opinion that the events surrounding the election show that “the
system is broken and needs to be fixed.” But was anything
“broken?” Perhaps not.
What I found particularly interesting about this argument was the ways it illustrated our cultural reflections on key
concepts, leading to their evolution, for better or worse. Maybe
what this entire debate showed is just how it is that law grows
and evolves according to ordinary cognitive mechanisms. For
example, the election debate revealed the complex prototype
effects associated with our category counting. With an objectivist view of concepts and rules, counting should be a category
defined by necessary and sufficient conditions. The rules
should specify what makes for, to use the Democratic slogan, “a
full, fair, and accurate count.” But what counts as counting?
The interpretation of this concept was precisely the issue. One
of the things that became quite clear is how much our purposes, interests, and values play a key role in the certification
of votes. The concept of a “fair and accurate count” is defined
relative to our values, which are themselves the subject of ongoing dispute. When the vote is not close, such issues never
arise. But what happens when the election is on the line?
Consider, for example, why many Republicans were infuriated that we would have, as they said repeatedly, “a count,
a recount, and another recount,” while Democrats could find
this perfectly sane and reasonable. One of the things at stake
here, among many things, was our cognitive model of counting.
If, using an objectivist view of concepts and reason, you conceive of counting as an algorithmic procedure carried out on
discrete concrete or abstract objects, according to rules operating over classical literal concepts, then one count should be
enough. The last thing such a person would want is so-called
human “subjectivity” brought into the counting process. But if
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you think of this as a matter of discerning a voter’s intention,
then you will think it not only appropriate, but necessary, to
make individual judgments concerning whether a dimpled,
pregnant, or hanging chad on a ballot indicates a voter’s intention.
Although I was distressed by all the ugliness, nastiness,
and hostility that this election spawned, I think that this debate and the associated proceedings are an important part of
what goes into the transformation of our electoral process. This
is precisely how we go about reconsidering our understanding
of our fundamental concepts about elections. In spite of all the
nastiness and animosity that arose around these issues, this
situated process of reflection is a fine example of healthy conceptual expansion and revision of the sort that Winter examines so perceptively and profoundly in law.
In subsequent chapters, Winter goes on to explore this
more creative, constructive, adaptive character of law. Once
again, using what we are learning about various imaginative
structures such as conceptual me taphor, prototypes, blending,
analogy, and narrative, he gives an account of the possible
growth of law as a dynamic process. Chapter nine explains the
cognitive capacities and principles that give analogical reasoning the important role it has in law. In what is to me one of the
most compelling chapters in the book, he then proceeds to explain how innovation is possible by means of the cognitive devices he has explored earlier.21 On this cognitively oriented
view, innovation is not, as Richard Rorty and Donald Davidson
mistakenly believe,22 merely an irrational, unmotivated, rad ical leap in thought that somehow reshuffles our entire conceptualization of a phenomenon. Instead, as Mark Turner has argued in several of his books,23 originality is possible because of
ordinary cognitive mechanisms and imaginative structures,
such as images, image schemas, conceptual metaphors and metonymies, prototypes, and radial categories. One of the things
Winter does so beautifully is to show how now-famous legal
21
WINTER, supra note 4, at ch. 9.
Donald Davidson, What Metaphors Mean, 5 CRITICAL INQUIRY 31 (1978);
Richard Rorty, The Contingency of Language, in RICHARD RORTY, CONTINGENCY,
IRONY, AND SOLIDARITY 3-22 (1989).
23 Turner’s most thorough treatment of innovation and originality is found in
his book, MARK TURNER, READING MINDS : THE STUDY OF ENGLISH IN THE AGE OF
COGNITIVE SCIENCE chs. 3, 7-9 (1979).
22
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arguments were able to transform our understanding of key
legal concepts in ways that now make perfect sense, once we
understand the background conditions and assumptions that
can retrospectively be seen to be relevant to the cases in question.24
In certain ways, the chapter on innovation is the culmination of Winter’s argument for the whole book, which he
summarizes as follows:
[(1)] that, despite the fact that it is conventional to think of imagination as random, unpredictable, or indeterminate, it is actually orderly and systematic in operation; and (2) that, because legal concepts (like all concepts) depend for their coherence on the motivating
contexts that ground meaning, legal change (no less than stability) is
contingent on the larger social practices and forms of life that give
the law its shape and meaning.25
Consequently, legal fundamentalism is both wrong and dangerous. It is wrong because it depends on a seriously mistaken
view of how the mind works. It cannot explain what actually
goes on in legal reasoning, because it is based on false literalist
and objectivist theories of thought and language. It is dangerous because it tries to force law into dichotomous modes of
thought and absolutist models that ignore the embodied social
and cultural bases of human understanding and value. This is
a serious error committed both by foundationalists and by postmodern relativists. By humanizing law—that is, by showing its
human cognitive roots—Winter makes law more humane and
responsive to the complexities of human existence.
So, law is a many-splendored, ongoing human accomplishment. To understand law and legal reasoning, we have to
understand who we are, how we develop our cognitive capacities, how our minds work, and how what we can think depends
crucially on our shared embodiment and our shared social and
cultural practices, values, and institutions. There is, I repeat,
nothing subjectivist about this view. It is not law in the service
of arbitrary power. Rather, it sees law as situated and constrained by traditions of debate, protest, resistance, suffering,
and cooperation. In understanding everything that goes into
this process of law-making, cognitive science becomes not
24
25
WINTER, supra note 4, at chs. 9-11.
Id. at 259-60.
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merely relevant, but indispensable. Steve Winter lays out for
us, in a stunning manner, what the ground plan for such an
application of cognitive science for law would look like. And he
does it with sensitivity and humanity. His book sets the standard for what will become known as “the cognitive science of
law.”
RELATIVE CONSTRAINT AND PUBLIC REASON:
WHAT IS “THE WORK WE EXPECT OF LAW”?∗
Frank I. Michelman†
I.
COMFORT IN WINTER
As Steven Winter presents it in A Clearing in the For-
est,
legal decisionmaking could be characterized as relatively constrained or (if one prefers) as moderately indeterminate. But it
would be more accurate still to say that law is indeterminate in
more-or-less predictable ways: Rarely do the legal materials provide
a single “right” answer to a legal question; but . . . legal decisionmaking is nevertheless regular, systematic, and largely predictable.1
Not that this is a problem from any instrumental standpoint.
The mere fact of moderate indeterminacy in adjudication is,
Winter says, beside the point of whether “decisions are sufficiently regular and predictable to do the work we expect of
law.”2 As long as “processes of persuasion operate” to constrain
decisionmakers in sufficiently predictable ways, Winter offers,
“law can ‘operate as law.’”3 In sum, it suffices to that end if legal decisionmaking is a “relatively” constrained activity.4
Which is exactly, as Winter explains masterfully in Clearing,
what cognitive science tells us we firmly can expect legal decisionmaking to be: relatively constrained, indeterminate to be
∗
©2002 Frank I. Michelman. All Rights Reserved.
† Robert Walmsley University Professor, Harvard University.
1 Steven L. Winter, A Clearing in the Forest 316 (2001) [hereinafter
Clearing].
2 Id. at 313.
3 Id. at 153; see id. at 313.
4 See id. at 316.
963
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sure but only moderately so and within predictable bounds.
Clearing thus seems to be a work designed in part to
convey to anxious liberal jurisprudes, reeling from decades of
indeterminacy critique,5 a consolatory message from cognitive
science, to wit: By force of something like laws of nature, a certain, shared and common base of neural and cultural predispositions makes it highly likely that processes of persuasion
among appropriately situated legal decisionmakers, judges in
particular, will “operate” to constrain their choices in ways sufficiently predictable for law to function as law, or do the work
we expect of law.
Being myself something of an anxious liberal jurisprude, how shall I respond to this offer of comfort? To be provocative, let me now say that I am not sure it is a wholly innocent offer that my friend Winter has kindly put before the likes
of me. Flashing back to some prior conversations between the
two of us, I think the offer may be meant as an enticement to
us anxious liberal jurisprudes to stop obsessing over what
we’ve been prone to regard as a morally pressing concern about
the legitimacy of state coercion in the name of the law.6 “The
fear,” as Winter sees it, has been that the pliability of the legal
material leaves judges “free to impose their personal values”
tyrannically on the rest of us, and so his book aims to show
that “this conventional concern is greatly exaggerated.”7 Now, I
would like to stop obsessing, of course (if you can believe me),
but my problem is that I am not sure Winter has accounted
fully for the grounds of liberal legitimacy-anxiety, or even attempted to offer comfort that possibly could quell it; although—
and this will be an important part of what I wish to say—I do
think that what he has done so far carries considerable promise of a possibly formidable future attempt, and I mean “promise” in both of the senses that may occur to you.
II.
LAW’S WORK
My doubt about whether Clearing itself can count as
5
(1997).
See, e.g., Duncan Kennedy, A Critique of Adjudication (fin de siècle) 31
6 See, e.g., Mark Tushnet, Legal Scholarship: Its Causes and Cure, 90 Y ALE
L.J. 1205, 1206-07 (1981).
7 CLEARING, supra note 1, at 109.
2002]
RELATIVE CONSTRAINT AND PUBLIC REASON
965
such an attempt reflects directly my inability to tell from what
Winter has written in that book exactly what work he thinks
should be included in “the work we expect of law.”8
“Positive legal ordering,” let us say, means an effective
social practice in which most inhabitants of a territory stand
ready, most of the time, to comply with norms of conduct pronounced to be law there by socially recognized legal officials—
and furthermore to support the use of social force, if necessary,
to secure compliance in general with such norms. On grounds I
believe to be no less Hobbesian9 than they may also be Kantian,10 political liberals uniformly affirm the moral necessity of
positive legal ordering. Roughly, we go on the unshakeable belief that there are numerous attainable worlds in which positive legal ordering prevails that clearly must be better for everyone in them than any realistically conceivable world could be
from which this practice is absent. (In that respect, one opposite to political liberalism is a principled, thoroughgoing anarchism.)
But let us try now to be a bit more specific about the
human and social demands that we aim or expect to have satisfied by a social practice of positive legal ordering. If we had on
the table Winter’s answer to that question, we would know better what he understands by “the work we expect of law.” And
indeed we can focus the query more sharply, because Clearing
apparently shares with virtually all of the rest of jurisprudence
the perception that it is at the point of adjudication—the point
at which concrete social controversies are submitted for ostensible decision according to law 11—that the pretensions of legal
ordering to do some societal work or other truly are put to the
test. Adjudication is where the legal rubber meets the road of
life.
So then what are the social needs and demands that we
aim or expect to be satisfied by a social practice of positive legal ordering that culminates in adjudication, be it actual, an8
Id. at 313.
See THOMAS HOBBES , LEVIATHAN chs. 13-17 (M. Oakeshott ed., 1962) (1651).
10 See IMMANUEL K ANT, THE METAPHYSICAL ELEMENTS OF JUSTICE § 42 (John
Ladd trans., 1999).
11 But see infra Part VIII for qualification.
9
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ticipated, or imagined? What, in that sense, is the work we expect of law? For our purposes here, a rough-and-ready answer
will suffice. First, people doubtless count on the law and its
administration for a relatively stable transactional context, one
in which a multitude of diversely interested and motivated social actors can plan and pursue their sundry affairs and projects with reasonable foreknowledge of the probable, relevant
responses of others, including legal officials. Second, people
doubtless further look to the legal regime for a relatively peaceful and decisive way to get specific, eruptive social controversies resolved so that life can go on. Possibly third, a regime—or
“rule”—of law is often thought to have the further purpose of
ensuring the moral defensibility of the exercises of force and
coercion, explicit and implicit, that political government inevitably involves within a modern society driven by sharp and
deep conflicts of interests and of ethical vision.
There we would have three possible components of the
work we expect of law: stability, settlement, and legitimation.12
The first two items on my rough list of demands that we look to
law to help us satisfy, stability and settlement, are selfexplanatory. The arguable legitimation function of law may be
a bit more obscure—it surely is more controversial—and I will
elaborate on it below.13 Only at the end of this Essay will I
have a word to say about law’s putative expressive function
and its possible relation to the argument of Winter’s book.
III.
LEGITIMATION IN WINTER ?
Suppose you think that stability and settlement account
fully for the work we expect of law. You, then, should readily
accept Winter’s proposition that an assurance of the relative
constraint of adjudication, of the sort that he so fascinatingly
shows us cognitive science is helping to underwrite, is all we
need for confidence that law can do its expected work. Surely
12 Some theorists might wish to add a fourth function for the law, that
of expressing the political community’s values and through them its solidarity and
sense of identity. See, e.g., RONALD DWORKIN, LAW ’S EMPIRE 166, 168-75, 190, 225, 264
(1986); Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV . 1503 (2000). I cannot say much in this brief essay
with the “expressive” view’s possible relation to Professor Winter’s work.
13 See infra Part V.
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RELATIVE CONSTRAINT AND PUBLIC REASON
967
law can make highly valuable contributions toward fulfilling
society’s needs for stability and settlement, even if everyone
knows that adjudicative outcomes will vary, from judge to
judge and from time to time, even in ways that can make real
differences to interested parties, as long as everyone also
knows the variations will not (except possibly very rarely) be
radical or shocking.
Now suppose for a moment that we doubt gravely
whether law’s legitimation function can withstand and survive
even such a moderate indeterminacy. (I will explain soon why
we might.14) Such a doubt would leave us uncertain about Winter’s intended message regarding the alleged legitimation function for law when he says that relative constraint suffices for
legal decisionmaking to do the work we expect of law. For then
his possibly intended message could be any one of three we can
think of, two negative and one positive. First possible negative
message: Winter might be implying that the legitimation demand is not one that matters, nor worth caring about at all.
Second possible negative message: He might be implying nothing about the demand’s worth or importance but only something about law’s inability to handle it: “Sure, legitimation
matters,” Winter might be heard as saying, “but it isn’t part of
the work we expect of law, or at any rate of any work we ought
to expect of law, because, as I am engaged here in showing, it’s
a demand beyond law’s ability to handle, unlike the demands
for stability and settlement.”15
On a third possible construction, Winter’s implication
regarding the legitimation function might be a positive, constructive one. Although he does not discuss the matter in
Clearing, Winter may in fact stand ready to include legitimation within the work we (rightly) expect of law, and to uphold,
against the sort of doubt I have mentioned and have yet to explain,16 the proposition that the merely relative constraint of
adjudication leaves law quite able to perform that function, too.
14
Id.
Consider, for example, this passage: “When social practices and values are
controversial or in disarray, the legal rules and principles will be too. . . . [W]e cannot
expect the law to resolve difficult, controversial cases in a way that is different or removed from the realm of politics.” CLEARING, supra note 1, at 328-29. I return to this
passage below in Part VII.
16 See infra Part V.
15
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IV.
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“CONSTRAINT” OF ADJUDICATION : PREDICTIVE,
MOTIVATIONAL, OR WHAT?
So far, I have been probing one of three key terms in
Winter’s claim that the relative constraint of judicial decisionmaking leaves law fully capable of performing the work we expect of law. I have been asking what Winter might understand
by “the work we expect of law.” I next want to raise the question of what he means by speaking of adjudication as being
more or less “constrained.” (In case you are wondering, the
third key term I have in mind is “law,” for there is a fair question about what Winter is referring to when he speaks of something called “law” that might or might not succeed in doing certain work. I will come to that at the end of these observations.17)
There are a number of differing ways in which we may
understand the notion of “constraint” of adjudication. Here I
will distinguish among the three major senses of predictive (or
causal) constraint, normative constraint, and motivational constraint. When I speak of adjudication being more or less constrained in one or another of these senses, I mean adjudication
society-wide, as a whole practice or institution, and not just
some individual instance. In all cases, constraint is a matter of
degree.
Adjudication, then, is predictively constrained in the degree to which we expect decisions made by sundry judges confronting the same case or question to converge upon the same
result or upon a set of results that vary only within known and
practically tolerable limits. Expectation here reflects belief
about causation. Insofar as we may believe adjudicative outcomes to be products of biological and sociological causes beyond the immediate, personal and voluntary control of any
given adjudicator, and we may further believe these causes to
be similar for all adjudicators, we will believe adjudication to
be predictively constrained. Note that predictive constraint,
while thus a matter of what we believe about the causal environment of judicial decisions, is also an empirical matter. One’s
belief in its existence can, after all, be tested against the hard
facts.
17
See infra Part VIII.
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RELATIVE CONSTRAINT AND PUBLIC REASON
969
Next, normative constraint. You hold adjudication to be
normatively constrained if and only if you hold the following
two propositions to be true. First, for any given case there is a
right or best adjudicative act or decision, or perhaps a small,
select set of those that are indistinguishably right or best. Second, to the extent that adjudicators fail to make these right or
best decisions, they fail to act well, or as they ought, or as they
would have to act in order to meet our reasons for setting them
up to act at all and then for heeding the actions they take. In
other words, normative constraint is the idea that the moral
justification of our concession of special powers to judges, to
direct state coercion against losing parties to lawsuits, depends
on the results judges reach and not just on the procedures they
follow, or on the people’s willingness to abide by the outcomes
of those procedures whatever they are.18 Note that normative
constraint is a non-empirical, strictly theoretical matter. Your
belief in the existence or non-existence of its twin premises—
the existence of right answers and the judicial obligation to
seek them—cannot be tested against any hard facts.
We come then to motivational constraint. This is the
empiricized version of normative constraint. You will hold adjudication to be motivationally constrained in the degree to
which you believe that judges, as a matter of fact, believe the
twin premises of normative constraint to be true and that the
judges feel impelled, therefore, to strive impartially to attain
the best answers. Like causal or predictive constraint, and
unlike normative constraint, motivational constraint is an empirical, not a theoretical matter. You can test your belief in its
existence against the hard facts—assuming you can find them
out, which in principle you can—about what judges subjectively are trying to do.
In other words, adjudication can be motivationally con18 The idea of normative constraint does not, however, in itself imply any particular theory of rightness in result. In particular, it does not equate “right” or “best”
with anything like transcendently fair or just. Whoever, for example, believes that
judges earn their suppers and their stripes by and only by striving toward outcomes
that are wealth maximizing, believes adjudication to be normatively constrained. Indeed “best” and “right,” here, can mean just about anything: consonant with Rawlsian
justice, wealth-maximizing, most conducive to community survival and success, linguistically most apt or most plausible to the mass or dominant part of some population,
most congruent in result with the outlooks or value-orderings of the mass or dominant
part of some population.
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strained as long as judges merely believe the twin premises to
be true, whereas those premises really must be true in order
for adjudication to be normatively constrained. In that sense—
it being always something of a challenge for moderns to get a
firm grasp on what it might mean for moral premises “really”
to be true19—motivational constraint may appear to be the
“weaker” of the two conceptions. But suppose you are one who
easily accepts the truth of the twin premises. For you, then,
motivational constraint may be the stronger, more demanding
conception. To believe in its existence, you would have to swallow what may strike you as highly dubious speculations about
the beliefs and motivations of judges.
I am now in a position to suggest that law cannot perform its legitimation function unless citizens at large can have
a well-founded belief that adjudication is motivationally constrained. At least, that would appear to be so according to an
important form of contemporary liberal thought that we may
call “constitutional contractarian.” In the constitutional contractarian view, hope for the moral redemption of the coercive
side of legal ordering rests on the idea that everyone having a
share of official power to say what the law is—judges, perhaps,
above all—will exercise that share in conformance with an
ideal called “public reason.” As will appear, public reason is a
particular form of motivational constraint. In what follows, my
questions will be: (1) whether a widespread, well-founded belief
in the actual prevalence of the constraint of adjudication by
public reason could coexist with a widespread perception that
adjudication is, from a predictive standpoint, only relatively
and not totally constrained; and (2) whether Winter’s account
of the cognitive -scientific grounds for belief in relative predictive constraint of adjudication provides any warrant for belief
that adjudication also is conducted under the motivational constraint of public reason.
19 See, e.g., Ronald Dworkin, Objectivity and Truth: You’d Better Believe It, 25
PHIL. & PUB. AFF. 87 (1996); Michael Moore, Moral Reality, 1982 WIS . L. REV . 1061.
2002]
V.
RELATIVE CONSTRAINT AND PUBLIC REASON
971
RECIPROCITY AND PUBLIC R EASON IN CONSTITUTIONAL
CONTRACTARIAN THOUGHT
Liberals are individualists at heart.20 Accordingly, they
want to know how it possibly can be right for members of society to mobilize force or the threat of force (this is what positive
legal ordering does) as a way to bring a population of presumptively free and equal individuals into “average compliance”
with various laws and regulatory regimes that none of them
ever individually chose and many do not now approve.21 Supposing your country’s positive lawmaking system to be
(roughly) a democratic one, the challenge is to explain how
“citizens [may] by their vote properly exercise . . . coercive political power over one another.”22 The difficulty lies in explaining how your or my exercises of political power may be rendered “justifiable to others as free and equal.”23
According to a “liberal principle of legitimacy” propounded by John Rawls, the answer lies in submitting our exercises of political power to the dictates of a certain kind of
law—a constitution or what I elsewhere have called a “law of
lawmaking”24—that all can endorse “in the light of principles
20
I mean individualists, not “atomists.” See FRANK I. MICHELMAN, BRENNAN
DEMOCRACY 11-14, 65-67 (1999). And I mean normative, not ethical, individualism. The latter distinction is implicit in Charles Larmore’s important essay, The Moral
Basis of Political Liberalism, 96 J. PHIL. 599 (1999). In Larmore’s account, political
liberalism, in a post-Romantic age, cuts its ties to any and all substantive views about
“the ends of life,” most particularly views that make the value of an act or course of
conduct depend entirely on its having expressly chosen by an individual upon his or
her own “critical reflection,” and not because of its fit with any unchosen “sentiment of
belonging.” Id. at 603-05, 623. But as Larmore further explains, what has required this
retrenchment of liberalism from that sort of romantic-individualist ethics is liberalism’s own, historic, core commitment to a normative principle of “respect for persons,”
corresponding to which is recognition of every individual’s right “to be bound only by
principles whose justification he can rationally accept.” Id. at 607, 621. “Respect for
persons,” Larmore neatly writes, “lies at the heart of political liberalism, not because
looking for common ground we find it there, but because it is what impels us to look for
common ground at all.” Id. at 608.
21 For “average compliance” see Jürgen Habermas, Between Facts and
Norms: Contributions to a Discourse Theory of Law and Democracy 448 (William Rehg
trans., MIT Press ed. 1996) (1992).
22 JOHN RAWLS, POLITICAL LIBERALISM 217 (Columbia University Press 1996)
(1993).
23 Id.
24 See MICHELMAN, supra note 20, at 6.
AND
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and ideals acceptable to them as reasonable and rational.”25
The moral strategy here is “procedural” in a salient, contemporary use of that term, the aptness of which will soon become
apparent.26 At its core stands an uncompromising, ultimate
moral concern with the freedom and equality of individuals
taken severally but regarded universally as free and equal.27
Hence the demand that potentially coercive political acts be
acceptable from the standpoints of each (not “all,” in some collectivized sense of “all”) of countless persons among whom rational conflicts of interest and vision abound. Acceptable, that
is, in principle. Acceptable hypothetically, in all reason; acceptable in the sight of whoever applies the test of acceptability.
In Rawls’s formulation, political coercion is justified
when it is exercised in support of laws issuing from a known
constitutional regime (the significance of “known” will become
apparent), as long as all may be expected to endorse this, and
assuming everyone to be not only rationally self-interested but
also “reasonable.” “Reasonable” here means three things. First,
a reasonable person accepts the inevitability of positive legal
ordering. She doesn’t pretend we somehow are going to get
along without lawmakers making laws, and judges resolving
their meanings-in-application, that have to bind everyone regardless of who likes or approves each law or each application
and who does not. Second, a reasonable person accepts the fact
of deep and enduring conflicts of interests and ethical visions
within her society—what Rawls calls the fact of reasonable
pluralism.28 Third, she is imbued with the liberal spirit of reciprocal recognition by persons of each other as normatively
free and equal individuals. A reasonable person thus stands
ready to accept the laws as long as: (a) she sees everyone else
generally supporting and complying with them; and (b) she
sees how these laws merit mutual acceptance by a competently
reasoning group of persons, all of whom desire, and suppose
each other to desire, to devise and abide by laws reflecting fair
25
RAWLS , supra note 22, at 217.
For further discussion of proceduralism in constitutional thought, see Frank
I. Michelman, Human Rights and the Limits of Constitutional Theory, 13 RATIO JURIS
63 (2000); Frank I. Michelman, Postmodernism, Proceduralism, and Constitutional
Justice: a Comment on van der Walt & Botha ___ CONSTELLATIONS ___ (forthcoming
2002) [hereinafter Constitutional Justice].
27 See supra note 19.
28 See RAWLS, supra note 22, at 36-37.
26
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RELATIVE CONSTRAINT AND PUBLIC REASON
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terms of social cooperation in conditions of deep and enduring
but reasonable ethical disagreements and conflicts of interests
among free and equal persons.29
But wait a minute. No matter how reasonable we ask
each other to be, surely none of us really expects that every
discrete act of lawmaking could pass such a test of rational acceptability to every supposedly reasonable, self-respecting inhabitant of a modern, plural society. Realistically, our hope
must be more modest, more “procedural.” Our hope is that an
aptly designed general system or regime for lawmaking—or call
it a constitution—might be able to pass such a test. Maybe we
can imagine some such regime, about which we would be prepared to say that it ought to be found acceptable, as a regime,
by every rational and reasonable person. If so, then we might
further maintain that the rational acceptability to you, as reasonable, of the constitutional regime commits you to accept
whatever specific laws may issue from the regime.30 That, after
all, would appear to be exactly the point of Rawls’s claim, in his
“liberal principle of legitimacy,” that exercises of political coercion are justifiable insofar as they issue from “a constitution,
the essentials of which all citizens may be expected to endorse.”31
We may now introduce the idea of a sufficient, legitima ting constitutional agreement.32 Four terms compose this idea,
as follows:
First, what is supposed to be “legitimated” (in the sense
of justified morally) by this agreement is positive legal ordering, the coercive exercise of collective power through lawmak29 See id. at xliv, xlvi, 226-27; John Rawls, The Idea of Public Reason Revisited,
in COLLECTED PAPERS 573, 576-79, 581, 605-06 (Samuel Freeman ed., 1999) [hereinafter Rawls, Public Reason Revisited].
30 See Samuel Freeman, Original Meaning, Democratic Interpretation, and the
Constitution, 21 PHIL. & PUB. AFF. 3 (1992), cited approvingly by RAWLS , supra note
22, at 234 n.19. Cf. JOHN RAWLS , A THEORY OF JUSTICE 195-201 (1993) (on “the fourstage sequence”). This means that your finding particular ordinary laws unjust gives
you no ground for resort to unlawful force, not that it gives you no ground for denunciation, civil disobedience, or conscientious refusal.
31 Rawls, supra note 22, at 217.
32 I develop and examine this idea at greater length in Frank I. Michelman,
The Problem of Constitutional Interpretive Disagreement: Can “Discourses of Application” Help?, in HABERMAS AND PRAGMATISM (M. Aboulafia & C. Kemp eds., forthcoming
2002); Frank I. Michelman, Social Rights, the Constitution, and Liberal Political Justification, ___ ICON ___ (forthcoming 2002).
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ing, by and among citizens considered individually free and
equal.
Second, what is supposed to have the desired legitimating effect is agreement by each person affected. Not, however,
actual agreement but hypothetical (what some would call
“counterfactual” agreement)—the “acceptability” of the political
practice among persons affected by it, envisioning those persons not only as rational but also as reasonable.
Third, the legitimating hypothetical agreement is a constitutional agreement. We do not apply the universal reasonable acceptability test to each and every law that crops
up in a country’s politics. We rather apply it to the country’s
system for lawmaking.
Lastly, then, “sufficiency.” In order to meet the test of
rational acceptability to every reasonable person, a lawmaking
system has to include a principle or guarantee affecting every
topic for which a rational person, responding reasonably, would
demand a guarantee as a condition of willing support for the
system as a whole. This minimal set of principles and guarantees must be extensive enough to compose a system for political
decisionmaking about which every affected, supposedly reasonable person rationally can say: “A system measuring up to
these principles and terms—all of them—is sufficiently regardful of my and everyone’s interests and status as free and equal
persons that I ought to support it and its legislative products,
provided everyone else does.”
It seems clear that a sufficient, legitimating constitutional agreement will have to contain some reliable, substantive assurances regarding what we may as well call people’s
rights. At least it will have to guarantee compliance with what
Rawls calls the “central ranges” of certain basic negative liberties,33 meaning with those obvious applications of the princ iples of freedom of thought, conscience, and expression, for example, that—as cognitive science in Winter’s hands helps to
explain—no one in our world respectably could dispute and few
would think of disputing. (For example, an outright ban
against criticizing the government falls within the consensual
core of constitutionally guaranteed freedom of expression but a
law against expressive flag burning very possibly does not.34)
33
34
See RAWLS, supra note 22, at 295-96.
Cf. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS
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Just as obviously, though, the notional constitutional agreement must provide some sort of assurance going beyond that
one, because falling outside these highly consensual “central
ranges” are innumerable issues touching on very sensitive
ethical and moral nerves. Think, for example, of our society’s
current debates and controversies over constitutional-legal
treatments of affirmative action, the death penalty, and the
right to bear arms. (Once upon a time we would have had to
mention slavery.) Americans cannot know in advance the official resolutions of such controversies, much less of the indefinite, unknowable, future stream of comparably sensitive ones.
We lack, so to speak, the corresponding terms of the notional
constitutional agreement, except as from time to time resolutions are handed to us by law-speaking officials, mainly the
ones we call judges. But how can a notional constitutional
agreement be “sufficient” unto the purposes of liberal political
legitimation35 when at any and every moment it lacks so much
seemingly essential information?
VI.
PUBLIC REASON AS MOTIVATIONAL CONSTRAINT
Rawls responds that such an agreement may be sufficient, depending on the degree of our assurance that judges
and other officials approach their work of resolving the open
questions under the constraint of public reason. In the last
analysis, what that roughly means is that whoever engages in
any exercise of political power respecting such choices does so
through a sincere exercise of judgment regarding which choice
will be truest to some full set of constitutional principles. It
would be a specific set that the decisionmaker has in mind and
stands ready to defend as based in the spirit of reciprocity, of
mutual recognition by citizens of each other, and regard for
each other, as free and equal persons diversified by a reasonable pluralism of ideas of the good.36 If citizens could be confident that public reason in that sense prevails in public decisionmaking over matters of basic constitutional import—so
106 (1999) (remarking that a nation that enforces law against flag burning would not
on that account be launched on a path towards becoming “Stalinist Russia”).
35 See supra notes 20-31 and accompanying text.
36 See, e.g., RAWLS , supra note 22, at l-li; Rawls, Public Reason Revisited, supra note 29, at 578-79, 581.
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runs the line of thought—then perhaps that confidence, combined with strict guarantees of everyone’s continual enjoyment
of the undisputed cores of the traditional civil liberties and civil
rights, could give every reasonable person a sufficient basis for
accepting the legislative outcomes of a democratic constitutional regime. And notice, then, the converse of this proposition: If the facts on the ground are such that citizens cannot
reasonably maintain confidence in the effective constraint of
public reason on official choices affecting matters of basic constitutional import, then the extant system of positive legal ordering is unjust. It fails to measure up to the moral demand for
justice in politics, as political -liberal thought conceives of that
demand.
Bottom line: The chance for liberal justice rests on a
twofold hope: (1) that citizens can know what they need to
know about not only the uncontested terms—the overt clauses,
as we might say—of an aspirationally sufficient and legitimating constitutional agreement, but also about the spirit in which
questions of application left open by the clauses will be addressed by those having the powers of decision; and (2) that
such knowledge can make the constitutional system “complete”
enough to merit universal reasonable acceptance of the legislative and adjudicative products of the system. Remember, we
already supposedly have the assurance of adjudicative convergence on those “central ranges” of application of the standard
basic liberties, regarding which we can posit something close to
country-wide, reasonable-and-rational, substantive agreement.
(For the answer to the question why we can, we may think of
how Steven Winter—and I see him as arm-and-arm on this
point with the recent work of Mark Tushnet37—argues that
facts of neural and cultural conditioning allow us a fairly confident prediction that the central ranges will be respected and
enforced by judges of the law, through processes of persuasion
carried on in the public eye among persons who have cared and
been able to attain high judicial office.38) To those assurances,
we now hope to add another: that judges and others exercising
37
See Frank I. Michelman, Populist Natural Law (Reflections on
Tushnet’s “Thin Constitution”) , 34 U. RICH. L. REV . 461, 462-64, 473-75 (2000) (discussing Tushnet’s theory of an “incentive-compatible” and “thin” constitution as presented
in TUSHNET, supra note 34).
38 See, e.g., CLEARING, supra note 1, at 152, 321, 331.
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RELATIVE CONSTRAINT AND PUBLIC REASON
977
law-speaking powers approach the remaining, open, and controversial questions of basic-liberties application under firm
inspiration and guidance by the spirit of liberal reciprocity.
We can see how the two types of assurance might be
thought to combine. The “tight” central -ranges guarantee is
relatively strong in decisiveness of application but correspondingly restricted in scope of application. The “loose” publicreason guarantee extends to a much wider range of politically
decidable matters, but at the cost of allowing in much more
disagreement about what ought to be done, and correlative uncertainty about what will be done. The idea, it seems, is to use
the looser guarantee to supplement the tighter one, in hopes of
eking out a total constitutional-legal practice about which a
rational and reasonable person can fairly be expected to say: “A
system that not only contains these stated principles—these
clauses—but that also is bound to these discursive expectations
is sufficiently regardful of my and everyone’s interests and
status as free and equal persons that I ought to support it and
its legislative products, provided everyone else does.”
But of course there’s the rub. The wishful “ideal” of public reason cannot play its intended role in liberal political justification unless it really does generate an actual constraint of
public reason.39 That it does so must furthermore be a matter
of knowledge among citizens. Allowing that citizens do not have
to know exactly how every judge will answer every debatable
constitutional-legal question that will materialize over the future course of history, they do have to know at every moment
that a certain, settled set of reciprocity-tending aims and values will guide and constrain decisions. Thus there will have to
be some underlying social agreement on the substance—or call
it if you want, the spirit—of the guiding aims and values. The
puzzle is how we can posit the requisite background agreement
without denying or obfuscating the supposed social
fact of deep ethical diversity that it is the business of this kind
of legitimation theory not to obfuscate but to overcome.40
VII.
A COGNITIVE SCIENCE OF PUBLIC REASON ? (COLLAPSING
39
40
See Rawls, Public Reason Revisited, supra note 29, at 576.
For fuller discussion, see Constitutional Justice, supra note 26.
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THE “PREDICTIVE”/ “MOTIVATIONAL” DISTINCTION )
It seems at this point that the hope for political legitimacy, as political liberals conceive it, ultimately rests on three
propositions: first, that a country’s people retain a shared
commitment to liberal reciprocity, however otherwise ethically
divided they may be; second, that we can eke out a sufficient,
legitimating constitutional agreement, given secure knowledge
that our judges are motivationally constrained not only to vindicate the consensual cores of the constitutional clauses on basic civil liberties and civil rights, but to keep their resolutions
of the open questions—of extension, interpretation, application—within the bounds of what reciprocity can countenance;
and, of course, third, that we can and do know that judges truly
will strive to do exactly that.
But how, exactly, can we hope to “know” the unwritten
terms or spirit in which constitutional-interpretative questions
are being addressed, and will be, by those having the power to
decide them? After all, even for Rawls the ideal of public reason
seems often to figure as a strictly counterfactual, normative
ideal, and one that is potentially highly critical of actual political practice anywhere on earth.41 His point, then, is that if the
ideal of public reason is not, in fact, sufficiently realized in a
given society’s actual practice, then the liberal principle of legitimacy will not be met in that society, and exercises of coercive political power will not, then, in that society, be morally
supportable.
But Rawls also explains public reason as what he calls a
“realistically utopian” idea. He means that the actual history of
constitutional-democratic countries, combined with reasonable
psychological and sociological speculation, gives a basis for belief that the public-reason ideal can be realized adequately in
practice, “taking men as they are and laws [as] they might
be.”42 We have, Rawls argues, a strong enough basis for belief
in this possibility to make constitutional justice the best approach to the pursuit of political justice, at least for a society
whose dominant political culture already falls generally within
the constitutional democratic tradition.
41
See, e.g., RAWLS , supra note 22, at 213.
See John Rawls, The Law of Peoples 11-13 (1999) (quoting Jean-Jacques
Rousseau, The Social Contract (Maurice Cranston trans., 1968) (1762)).
42
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RELATIVE CONSTRAINT AND PUBLIC REASON
979
One can hardly help wondering what cognitive science
in Winter’s hand s might have to say about an empirical speculation of that kind. Can the science, perhaps, by a kind of
merger of causal-predictive and motivational constraint, underwrite the likelihood of the requisite convergence of constitutional adjudicators on decisions more or less guaranteed to
keep within the bounds of what reciprocity can countenance?
Keep in mind that these constitutional adjudicators are people
engaged among themselves in processes of persuasion, and under pressure of public opinion of which persons who rise to high
public office can hardly be unconscious or uncaring.43
Winter’s current book does attempt an answer. It does
not concern itself much at all with normative questions. But it
is not entirely silent, either. It says at least this much:
The insight that law is a socially contingent artifact . . . implies that
legal meaning is possible only to the extent that the society enjoys a
relative stability of context: When there is a consensus in practices
and consequent values . . . then the courts will be able to articulate
“principled” decisions that people will recognize as valid. . . . But
when social practices and values are controversial or in disarray, the
legal rules and principles will be too. It follows that we cannot expect
the law to resolve difficult, controversial cases in a way that is different or removed from the realm of politics.44
If we take that at face value, then is Winter in the posture of destroying the hope reposed by political liberals in public reason? The “relative” predictive constraint of adjudication
expected by cognitive science apparently will fail just at the
point where adjudication meets up with the ethically “difficult
and controversial” cases that are the focal concern of the political-liberal theory of political legitimation through constitutional law. Law, then, in short, apparently will not be able to
“do the one thing [liberals] most want to depend on it for.”45 If
that indeed is the meaning, then, combining it with the claim
that an adjudicative process that is only relatively constrained
can nevertheless support “the work we expect of law,” we get
either negative message number one or negative message
43
44
45
See supra note 38 and accompanying text.
CLEARING, supra note 1, at 328-29.
Id. at 163.
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number two:46 either political legitimation, at least as political
liberals conceive it, is not worth worrying about, or it is worth
worrying about but law obviously cannot be its vehicle.
And yet what has not yet been explored, as far as I can
see, is the possibility of the positive message. The question
would be whether cognitive science might underwrite a sufficient expectation of actual judicial convergence on the reciprocal-recognition norm (or something like or akin to it) to support
a political-liberal theory of political legitimation through constitutional law applied under constraint of public reason. Cognitive science obviously is deployed by Winter as the guarantor
of enough societal “consensus in practices and consequent values” to support enough motivational and predictive constraint
to contribute usefully toward the stability and settlement aims
that society holds out for law. Why not legitimation, too?
Nailing down an answer to that question lies beyond the
scope of this preliminary inquiry, but we can list some possibilities in quick review. One seemingly plausible, but by no
means self-evident, response would be substantive. Perhaps
cognitive science tells us that the actual neural/cultural inheritance of humankind, or of humankind in our part of the world,
simply does not jibe with the particular sort of constraint on
adjudication that we’ve seen to be required by the “liberal principle of legitimacy,”47 that is, one that sounds in the liberal criterion of reciprocity. (Sociobiology, this may be your cue.)
Now consider a second sort of answer. Time and again,
Winter mentions that a cognitive -scientific account of the relative constraint of adjudication (predictive) is tantamount to a
prediction that adjudicators will converge on those “values and
perspectives” that happen to be dominantly “socially shared”48
in a society’s “most conventional” cultural precincts.49 As Winter presents it, the dark side of the coin of relative constraint of
adjudication (predictive) is that “law . . . always . . . enforces . .
. the dominant normative views of the culture.”50 But in fact he
does not say “dark” or anything like it, and there is no appar46
See supra text following note 14.
See supra note 25 and accompanying text.
48 CLEARING, supra note 1, at 318.
49 Id. at 323; see id. at 321 (suggesting the likelihood of subordination of the
“personal preferences” of individual judges to “some larger set of values shared by the
wider audience”).
50 Id. at 331.
47
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RELATIVE CONSTRAINT AND PUBLIC REASON
981
ent reason why we should imagine him thinking any such
thing. Jürgen Habermas might,51 but that is because Habe rmas takes moral universalism very seriously indeed.52 By contrast, there is no sign that Steven Winter takes it seriously at
all. Nor is there any self-evident reason why the Rawlsian “liberal principle of legitimacy” should not avail itself of the lucky
contingency, wherever it might be found to exist, of widespread
popular sympathy for the liberal ideal of reciprocity. As Rawls
himself explains, his constitutional -contractarian response to
the problem of political legitimacy has been specifically shaped
to societies already imagined as falling with a certain broad,
historical tradition of political sensibility.53 It has, he says,
been “constructed” or “worked out” from ideal elements—
“fundamental ideas”—drawn from “the most deep-seated convictions and traditions of a modern democratic state.”54
We come, then, to a third possible objection to summo ning cognitive science à la Winter to the support of a Rawlsian
hypothesis of a “realistic utopia” of public reason.55 It would be
that the very idea disastrously confuses motivational with predictive constraint. In Rawls’s hands, the ideal of public reason
seems always to refer to the subjective state of whoever is in a
position of wielding power to say what the law is. It means that
person’s sincere readiness to explain her decision as true to
some full set of constitutional principles that she has in mind
and stands ready to defend as based in the spirit of liberal reciprocity. That is how conscientious, liberal -minded citizens
and officials carry out what Rawls calls their duties of “civility.”56 By contrast, the whole tendency of Winter’s line of cognitive-scientific argumentation leans toward the displacement (or
transformation) of conscious agency by (or into) behind -the51 See, e.g., HABERMAS , supra note 21, at 200, 209 (stating that “In a pluralistic
society in which various belief systems compete with each other, . . . [w]hat counts for
one person as a historically proven topos is for others ideology or sheer prejudice . . .
[T]he practice of interpretation requires a point of reference beyond settled legal traditions.”); id. at 223 (a “suspicion of ideology” hangs over every claim of a universally
shared “background understanding”).
52 See Frank I. Michelman, Morality, Identity, and “Constitutional Patriotism”,
14 RATIO JURIS 253, 256, 258, 262 (2001).
53 See, e.g., RAWLS , supra note 22, at xl-xli; cf. Rawls, Public Reason Revisited,
supra note 29, at 573-74.
54 RAWLS , supra note 22, at 13-14, 300-01.
55 See supra note 41 and accompanying text.
56 See, e.g., Rawls, Public Reason Revisited, supra note 29, at 578, 581.
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back causality—or, in other words, the transformation of what
I have called motivational into what I have called predictive
constraint.57
Does Rawlsian liberal legitimacy, then, really depend on
the conscious motivations of decisionmakers being what they
morally ought to be, regardless of any level of confidence we
may have that decisionmakers will be biologically and sociologically caused to act “as if” thus consciously motivated? Why
should it? It is one thing to ask in what spirit faithful liberals
consciously will consider their choices when deploying their
shares of power to say what the law is or shall be. To that
question the “ideal” of public reason gives the answer. It would
seem, though, to be quite another thing to ask what citizens at
large must know about the manner in which judges will decide
hard cases in order to find the legal order deserving of their
respect and support. To that end, why should it not be enough
for citizens to have assurance that the judges will act as if consciously actuated by the ideal of public reason, thus under the
“constraint” of public reason—or as Rawls likes to put it, according to the “idea” (even if not the “ideal”) of publ ic reason?58
And is not that just the sort of assurance that cognitive -science
à la Winter might be in a position to offer?
Or is the last word here to be that of Justice Holmes?59
It is not, after all, beyond consideration that the difference between a citizen’s sense of having been accidentally tripped over
and her sense of having been intentionally kicked is what finally makes the difference between legitimate and illegitimate
legal ordering. If it does, then liberal legitimacy really does
depend on citizens being able to know that judges are motiva57
See supra Part IV.
See Rawls, Public Reason Revisited, supra note 29, at 574-76.
59 See Dairy Road Partners v. Island Ins. Co., 992 P.2d 93, 115 (Haw. 2000)
(“The Connecticut Supreme Court affirmed the trial court, quoting Professors Prosser
and Keeton for the proposition that ‘the distinction between intentional and uninte ntional invasions draws a bright line of separation among shadings of almost infinitely
varied human experiences. . . . As [Justice Oliver Wendell] Holmes observed, even a
dog knows the difference between being tripped over and being kicked.’ [American
Nat’l Fire Ins. Co. v. Schuss, 607 A.2d 418 (Conn. 1992)] at 422 (quoting W.P. KEETON,
PROSSER AND KEETON ON THE LAW OF TORTS § 8 (5th ed. 1984).”).
58
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RELATIVE CONSTRAINT AND PUBLIC REASON
983
tionally—consciously—constrained by the ideal of public reason. Rawls himself, to my reading, leaves the question exquisitely unresolved.60
VIII. THE NEGATION OF “THE LEGAL MATERIALS”
The deep and ultimate claim of Winter’s book may be
markedly more radical than what appears on its face. As I have
mentioned, Clearing apparently shares with virtually all jurisprudence the perception that it is at the point of adjudication—
the point at which social controversies are submitted for ostensible decision according to law—that the pretensions of legal
ordering to do work for society are put to the test. Adjudication
means the business of deciding cases according to what Winter
sometimes refers to as “the legal materials.”61 It means adjud icators having resort to such rules, standards, and principles as
they feel able to draw from statutes, judicial precedents, and
any other propositional products or aspects of their country’s
history that may in their minds qualify as legal. It is that more
or less distinctly pedigreed collection of normative propositional stuff, together with the adjudicative uses to which it professedly is put, to which Winter apparently refers when he
speaks of something called “law” that might or might not succeed in accomplishing the work we expect of law.
But immediately one feels the urge to qualify. Without a
doubt, Winter’s book slips into the sort of positive-ish talk I
have just been describing, about law as a distinct and demarcated body of normative propositional stuff. It is, however, hard
to suppress the thought that Winter’s talk in this vein is mai ntained provisionally, for the sake of effective communication
60 Rawls, Public Reason Revisited, supra note 29, at 578:
[W]hen, on a constitutional essential or matter of basic justice, all appropriate government officials act from and follow public reason, and
when all reasonable citizens think of themselves ideally as if they
were legislators following public reason, the legal enactment expressing the opinion of the majority is legitimate law. It may not be thought
the most reasonable , or the most appropriate, by each, but it is polit ically (morally) binding on him or her as a citizen and is to be accepted
as such. Each thinks that all have spoken and voted at least reasonably, and therefore all have followed public reason and honored their
duty of civility.
Id.
61 See, e.g., CLEARING, supra note 1, at 316 (quoted at the outset of this essay).
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with his intended professional audience in its present, imperfect state of understanding of where the real truth lies. For
good and understandable reason, Winter frequently talks the
talk of a positivist notion of law, but one cannot be so sure that
he, in the bottom of his heart, means to walk the walk. Ostensibly, Winter’s claim is that “the legal materials” provide sufficient predictive determinacy of adjudicative outcomes, at least
when filtered through “processes of persuasion” among biologically and sociologically pre-conditioned judges, to do the work
we expect of law.
Ultimately, though, Winter may intend a more radical
claim, one that finally would kick aside any notion of a socially
cognizable body of distinctively “legal” propositional stuff. The
claim then would be that officials acting in the role of judges, in
the sorts of social settings we currently know as adjudicative,
commonly pre-conditioned as they are and responding as they
must to entrenched public opinion, predictably would converge
on a sufficiently—if only “relatively”—constrained range of
outcomes to accomplish successfully the work we expect of law,
even if their persuasive processes were to pay no particular
attention to any particularly “legal” body of normative propositional stuff. I am suggesting the possibility that Winter’s
deeper conviction is that we don’t need “law” at all, in the positivist, stuff-y sense conveyed by a phrase like “the legal materials,” in order for judicial institutions to carry out successfully
the work we expect of law. The institutional arrangements,
settings, and practices, then, would be the crucial factor while
“the law”—the legal “materials”—would be but an epiphenomenal effect of the institutions, an aura surrounding them.
Now it is fairly easy, under Steven Winter’s sterling tutelage, to imagine law’s work thus being done, assuming that
work to be confined to stability and settlement. But to suggest
that legitimation, too, might thus be accomplished would be
utterly transformative for political-liberal thought. It would be
to leave behind the “liberal principle of legitimacy”—the theory
of legitimation through the notional idea of a sufficient, legitimating, hypothetical-contractual body of constitutional law (to
be applied, to be sure, under constraint of public reason)—for
something else; not something utterly unrelated, but something very different. It would be to carry one giant step further
the process of the proceduralization of normative, liberal legal
2002]
thought.
RELATIVE CONSTRAINT AND PUBLIC REASON
985
CHANGING THE SUBJECT: COGNITIVE THEORY
AND THE TEACHING OF LAW∗
Jeremy Paul†
I.
FORMALISM V . ANTI-FORMALISM: CUTTING DOWN THE
TREES
For those of us teaching legal theory to American law
students at the beginning of the twenty-first century, Steven
Winter’s book, A Clearing in the Forest, Law, Life, and Mind,
has arrived just in time. It offers a path (to use one of Professor
Winter’s journey metaphors) out of our oldest and least fruitful
debates. Consider the following thumbnail sketch of the central
questions within contemporary academic discussion.
Does law satisfactorily constrain judicial decisionmakers so that it makes sense to say that citizens in a contemporary democracy are both authors of the law that governs
them and subject to the rule of law they have authored? Given
the crucial nature of this question to the legitimacy of the legal
system, it’s no surprise that legal academics mostly answer
“yes.” The differences occur in providing the explanation.
On one side, we have the champions of what Michael
Fischl and I have called “the rulebook account,”1 but which
typically goes by some variant of the name “formalism.” The
basic idea here is familiar to every grammar school student.
∗
©2002 Jeremy Paul. All Rights Reserved.
† Associate Dean for Academic Affairs and Professor of Law, University of
Connecticut School of Law. Thanks to everyone at the Brooklyn Law School for inviting
and hosting me, to Paul Berman, Anne Dailey, Laura Dickinson, Tanina Rostain, Tom
Morawetz, and Susan Silbey for helpful comments, and especially to Steve Winter for
blazing the trail.
1 RICHARD MICHAEL FISCHL & JEREMY PAUL, G ETTING TO MAYBE (1999).
987
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Law works precisely as the rules of a game.2 We write the rules
down in advance and when a dispute arises we consult the
rules to tell us which side has the better argument. The crucial
issue, and thus the point where debate truly begins, is over the
breadth and scope of the rules. Everyone agrees that some disputes will arise which have not been adequately anticipated by
the rule drafters. In such cases, the rulebook account won’t
fully explain how a judge can make a decision.
But formalists worry little about cases where “the rules
run out” for two reasons. First, the rules will settle a vast majority of disputes and, as they see it, only those folks interested
in stirring up trouble will keep harping on the relatively few
gaps in the legal rules.3 Second, the system will contain sufficient institutional checks and balances so that judicial decision-makers forced to fill in the gaps will seldom do so in a way
fundamentally threatening to the rule of law. Panels of judges
will review initial decisions rendered by a solo judge. Judges
will be chosen through a process, such as Senate confirmation,
that includes a political check ensuring that judges won’t be too
far from the mainstream. Judges will be trained in a culture
and chosen for a temperament that includes a preference for
deciding cases in ways that hold the rules together even when
particular disputes call for some amount of judicial interpretation. Thus, although the rulebook account requires all the
usual qualifiers, it commands the allegiance of many sophisticated thinkers and has a strangle hold upon the common citizen’s imagination.4
Opponents of formalism are more divided among the m2 For the relevance of games to Winter’s overall argument, see his companion
piece in this volume. See Steven L. Winter, When Self-Governance is a Game, 67 Brook.
L. Rev. 1171 (2002).
3 Consider H.L.A. Hart’s famous condemnation of American Legal Realists as
being “pre-occupied with the penumbra.” As Hart puts it, every legal rule has a core
(we know a daredevil driving with his eyes closed is negligent or worse) and a penumbra (what about someone talking on a cell phone while driving). Only fools, Hart would
tell us, would confuse the two situations and treat the latter issue as characteristic of
all legal questions. See H.L.A. Hart, Positivism and the Separation of Law and Morals,
71 HARV . L. REV . 593, 606-15 (1958).
4 The most sophisticated presentation of contemporary formalism I know is
Frederick Schauer’s lucid and insightful Playing by the Rules. FREDERICK F. SCHAUER,
PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE -BASED DECISION
MAKING IN LAWS AND LIFE (1991). He recognizes all the problems with formalism mentioned above yet defends rule application and interpretation as superior to other forms
of legal decision-making.
2002]
COGNITIVE THEORY AND THE TEACHING OF LAW
989
selves, but all begin with the same basic insight.5 Judicial decision-makers have substantial discretion in determining what
the law is and how it applies to particular disputes. As Professor Winter describes in an even broader context,6 the formalist
world view bumps up against two distinct difficulties.
First, the judge who makes a good faith attempt to determine what law applies to a particular dispute has an enormous array of material to survey. Every appellate decision is
subject to multiple interpretations (e.g., did the court protect a
general right to privacy or a more specific right to use birth
control?). Every statute is subject to multiple readings (should
we read the language literally to bar discrimination in places of
public accommodation or to bar discrimination by any business
even if it has no specific location?). Worse still, every decision
must be read in conjunction with every other decision, every
statute in conjunction with every other statute, and all these
ordinary legal documents must also be squared with constitutional provisions. Enormous judgment is required to determine
how all these statements of law are meant to fit together.
Second, even after a judge reaches an interpretation of
existing materials to determine what the law is, all sorts of
additional questions arise in determining how the law actually
applies to the facts. A judge, for example, might carefully read
three landlord/tenant cases together to conclude that the law of
her jurisdiction prohibits a tenant from withholding rent without first notifying the landlord of a housing code violation. But
the judge would still need to decide whether a note that reads
“my water heats up slowly” is sufficient to suggest that the
heater is broken as opposed to just performing a bit poorly.
Anti-formalists agree that these opportunities for judicial discretion are substantially greater in number and significantly more important than the formalists acknowledge. Accordingly, they see a need for additional theory to make sense
of the familiar liberal faith in “the rule of law.” Since the rules
themselves often don’t provide determinate answers to legal
questions, anti-formalists must determine how such answers
can be provided. If the hard truth is that judges use the gaps,
5 Such internal divisions, unsurprisingly, leave the anti-formalist camp far
less effective than one would surmise based on the strength of their arguments.
6 STEVEN L. WINTER, A CLEARING IN THE FOREST: LAW , LIFE , AND MIND 8
(2001).
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conflicts, and ambiguities as an opportunity to pursue a political agenda that is separate from their allocated task of applying the law, then the underlying theory of democracy will be
called into question. So, the anti-formalists agree, the indeterminacy present in determining what the law is and how it applies to the facts poses a fundamental challenge to law that
formalism itself cannot resolve.
At this point, anti-formalists dissolve into competing
schools that vary across a spectrum depending on their faith in
the ability of judicial discretion to be meaningfully constrained
in the absence of constraint by formal rule. It’s okay that formal law is riddled with indeterminacy, some anti-formalists
tell us, because the judge can then look to economics or more
broadly to “policy science” to fill in gaps with sound reasoning
about what’s best for society.7 It’s okay that formal law is riddled with indeterminacy, other anti-formalists tell us, because
interpretive strategies such as those used in literature or philosophy will allow judges to choose the result most consistent
with existing legal principles.8 It’s okay that formal law is riddled with indeterminacy, still other anti-formalists tell us, because there’s a general societal consensus on the correct interpretation of the formal law and judges can secure their legitimacy by reaching for this consensus.9 It’s to be expected, but
not quite okay, we hear from some anti-formalists, that the law
is rife with indeterminacy because judges then fill the gaps
with political positions they have brought to the bench.10 From
this view, law is just another form of politics and emphasizing
7
This is one way to describe the work of the Legal Realists and those in today’s Law and Economics movement. For a brief description of Legal Realism in these
terms with accompanying citations to more extensive accounts, see Richard Michael
Fischl, Some Realism About Critical Legal Studies, 41 U. MIAMI L. REV . 505, 519-20
(1987). For new insight into the depth and power of law and economics unhinged from
its prior ideological straightjacket, see LOUIS K APLOW & STEVEN SHAVELL, FAIRNESS
AND WELFARE (2002).
8 See, e.g., RONALD M. DWORKIN, LAW ’S EMPIRE (1986).
9 The more sophisticated versions of this approach find consensus not on the
questions that actually face courts but on the proper interpretive techniques or "disciplining rules" that courts must use to resolve such questions. See, e.g., Owen Fiss,
Objectivity and Interpretation, 34 STAN. L. REV . 739 (1982).
10 See, e.g., David Kairys, Legal Reasoning, in THE POLITICS OF LAW : A
PROGRESSIVE CRITIQUE 17 (David Kairys ed., 1982); DUNCAN KENNEDY, A CRITIQUE OF
ADJUDICATION (fin de siecle) (1997) (arguing that judges are powerfully influenced by
their own ideological positions along the liberal/conservative spectrum and that judges
are often in denial about this).
2002]
COGNITIVE THEORY AND THE TEACHING OF LAW
991
the indeterminacy of rules helps point this out. Finally, it’s a
cruel joke, the extreme anti-formalists remind us, that the law
is riddled with indeterminacy. Only a fool would fail to notice
all the ways that not only rules but “reasons run out.” 11 Our
most sober jurists are playing a game if they expect us to believe their decisions are meaningfully constrained in the way
we pretend such decisions must be for law to be legitimate.
And there you have it: a full term’s course in contemporary jurisprudence over-simplified, but not all that inaccurately summarized, in a few paragraphs. Excluded, as usual,
are more contemporary perspectives such as feminist jurisprudence and critical race theory, which question whether it
makes sense to seek a universal perspective from which to view
legal problems.12 Indeed, it’s precisely because of the challenges they raise that feminism and critical race theory are
often taught as separate courses. Traditional theorists most
typical reaction is that these new perspectives have much to
offer but little that untangles the core debate between formalism and anti-formalism. As we shall see, Professor Winter’s
effort to displace the familiar questions of formalism helps
validate the significance of feminism and critical race theory as
central to the core of legal theory. Professor Winter makes this
explicit in his chapter on narrative where he illustrates how
traditionalists have unfairly criticized and marginalized the
work of Patricia Williams.13 But to get there Professor Winter
must first take us out of the seemingly interminable debate
over formalism’s vices and virtues.
Given the overwhelming appeal of formalism, no one believes its champions will ever give up striving for continually
refined models in which rule-following is core and all else periphery. Given the numerous embarrassments to formalism, no
one believes its opponents will tire of pointing out the absurd11
No one does extreme anti-formalism better than Pierre Schlag. For his brilliant demonstration of how and why reasons run out, see PIERRE SCHLAG, THE
ENCHANTMENT OF REASON (1998).
12 See generally Anne Comer Dailey, Feminism’s Return to Liberalism, 102
YALE L.J. 1265 (1993) (reviewing FEMINIST LEGAL THEORY: READINGS IN LAW AND
G ENDER (Katharine T. Bartlett & Rosanne Kennedy eds., 1991) (describing how both
dominance and relational feminism question a universalist perspective and raising
provocative questions about how the challenge to universalism can be turned upon
feminism itself); CRITICAL RACE THEORY xv (Richard Delgado ed., 1995) (describing the
theme of collected essays as replacing universalism with a “call to context”).
13 WINTER, supra note 6, at 131-38.
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ity of expecting legal language to provide binding constraint.
Legal theory teachers are thus reduced to the task of familiarizing our students with all sides of the debate and leaving them
to develop their own philosophy. In doing so, we abandon them
in an environment in which each of the available choices appears so obviously flawed as to be unworthy of allegiance for
any but the most dogmatic thinkers. No wonder so many conclude that theory must have little to do with law practice and
that jurisprudential debates are beyond understanding or interest.
Professor Winter is out to change all this. His argument
begins with noticing the premises shared by formalists and
anti-formalists alike. As Winter explains, both sides agree that
the literal application of rules would represent the simple most
elegant way in which law could meaningfully constrain human
behavior. Formalists cling to the idea that law actually works
this way. Anti-formalists often lament that rules fail to constrain judicial discretion and thus offer a series of suppleme ntary techniques designed to shore up the rule-based account.
Winter is perhaps a little too quick to ignore all the ways that
anti-formalists actually prefer the techniques they offer. Law
and economics devotees, for example, are not necessarily formalists at heart. But, Winter’s insight is nonetheless crucial.
The rule-based account of law that seems so commonsensical to
formalist and anti-formalist alike deserves serious scrutiny to
determine whether it stands up to our best understandings of
how people process information and to what we know about
law in actual practice. Winter argues convincingly that in this
light the debate between formalism and anti-formalism loses
most of its bite.14
It is possible to provide a flavor for Winter’s approach
without exploring issues with the depth that he does. Take any
of the hundreds of puzzles within legal doctrine that have long
bedeviled legal theorists (Winter discusses several). For our
purposes, we can consider, as Winter does to great effect in
Chapter 10, the constitutional guarantee against laws abridging freedom of speech or of the press.15 With a formalist account, we would begin and mostly end with the constitutional
language as a source of guidance on how to resolve certain
14
15
WINTER, supra note 6, at xvi-xvii, 6-12, 187-89.
Id. at 273-86.
2002]
COGNITIVE THEORY AND THE TEACHING OF LAW
993
situations. What are we to do, however, with problems such as
laws banning flag burning or nude dancing? Such statutes
clearly seem to implicate First Amendment concerns. Yet who
could miss the problem that these laws appear to prohibit conduct rather than speech? With a literal reading the Constitution might appear inapplicable to these obvious efforts by government to restrict communication. Actual case law, however,
is well up to the challenge of moving beyond literalism to a
more purposive constitutional interpretation. Here then the
anti-formalists pounce. The Court’s willingness to expand constitutional guarantees means that something well beyond formalism is going on. Since all conduct can be described as communicative (perhaps I mean to send a message when I bust
your chops), there is no coherent way to draw linguistic lines
between constitutionally-protected speech/communication and
constitutionally-unprotected conduct. It is just one short step
then to the broader conclusion that what is driving the cases is
a judicial, dare we say political, discretion divorced or disconnected from doctrinal analysis.
One short step, Professor Winter might agree. But a
wrong one. As Winter argues, the fact that legal language cannot constrain outcomes in the way formalists hope does not
prove that language cannot constrain outcomes in the way that
matters most.16 We are not surprised, he might stress, when a
court immediately and without reflection denies a First
Amendment claim raised by a kidnapper who argues he only
“borrowed” the child to “make a statement.”17 Nor should a
court pause long over protecting a citizen’s rights to act out a
mime in a public park even though no speech is involved. What
stabilizes these clear results is current social understandings
about the way our world works. Although such understandings
are constantly in flux, at any given moment certain efforts to
draw the line between speech and conduct will appear plausible and others less so. Thus, despite our collective inability to
create rigid categories of protected speech and unprotected action, judges can continue to render decisions that as Winter
might describe it “make sense” to us. Accordingly, we can make
quite accurate predictions about the kinds of decisions courts
16
17
ple).
Id. at 153, 191.
See id. at 283 (making a similar point using Oklahoma City bombing exam-
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will make without being able to explain those decisions in absolute or formalist terms.
How are such predictions possible? This crucial question
moves us to the heart of why Winter’s book is such a marvelous
contribution, indeed a crucial re-direction of tired jurisprudential debate. As we shall see, what Winter does is no less sweeping than propose a different way of explaining human thought.
He turns to developments in linguistics and cognitive theory to
argue that it’s quite possible for us to understand a word, a
category, or a legal rule as constraining meaning or outcomes
without determining them. If carried to conclusion, such a view
would be like the Rosetta stone of legal theory. That’s because
almost all observers of the contemporary legal scene agree that
formalism is riddled with problems, yet no one has a convincing explanation for why the public continues to be relatively
unconcerned (at least prior to Bush v. Gore18) that we have
rogue judges dispensing nothing but political justice.
As I teased him at our Brooklyn Law School conference,
A Clearing in the Forest is written in the narrative structure
that Winter untangles in Chapter 5. Thus, Winter’s verbal encounter with those in other disciplines leaves him with a new
weapon. He then proceeds on his journey through legal theory
by using his new weapon to reject both halves of the legal
academy’s Hobson’s choice. Winter joins the anti-formalists in
concluding that existing legal materials provide plenty of room
for multiple interpretations, meaningful disagreement, and
social progress. But he is with the formalists in finding that the
legal materials are sufficiently constraining so that the law
performs the tasks we most
rightly expect from it: clarifying, guiding, and modifying human conduct.19
Winter performs this seemingly magical feat with the
introduction of several concepts. First, he broadens our understanding of the process of categorization. One way to think
about categories is along the lines that Winter calls the rationalist model.20 For rationalists, placing an item in a category
involves determining whether it has the necessary and suffi18 531
U.S. 98 (2000).
WINTER, supra note 6, at 158-60, 329-30.
20 Id. at 8-12.
19
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COGNITIVE THEORY AND THE TEACHING OF LAW
995
cient attributes to warrant being so labeled. A square, for example, is a four-sided figure with each of the sides having the
same length and each angle having ninety degrees. This form
of categorization holds the following promise for a formalist
approach to law. The law might set forth certain consequences
that will occur when a set of facts properly falls within a legal
category. For example, a signed document indicating mutual
assent to terms involving a bargained-for exchange might constitute a “contract.” A judge’s job, thinking back to the rulebook
account, will be to determine whether the set of facts before her
have the necessary attributes. If so, a contract is present and
certain legal consequences will flow.
As we all know, however, this type of formalism suffers
from the familiar problem that it is very difficult to squeeze
recalcitrant facts into formal categories. Might a deal be a contract even if it’s not in writing? The formalist response is to
write more rules, clarify, and not worry too much about the
hard cases. The anti-formalist response is to draw attention to
formalism’s failure to deliver and crow about the necessary injection of “policy” (celebratory) or “politics” (condemnatory) into
judging.
Here is Winter’s view: Categories are more complex
than simply the specification of necessary and sufficient attributes. He shows instead how categories are viewed better
through the lens of cognitive theory. From the rationalist
standpoint, a robin and a penguin are equally birds. They both
have the required attributes. But ask people at random to
name a bird and many more will name a robin than a penguin.
Winter explains that such “prototype effects” play a major role
in explaining human categorization.21 We very often proceed
from a central case outward rather than attempting to determine category fit through a list of attributes. Winter nicely
provides the example of the category “mother,” which he notes
may one day have had a central case of the married, stay-athome mom who gave birth to and then nurtured her and her
husband’s biological children.22 This central case, of course, is
entirely socially contingent. But think of the issues raised then
by the phrases “birth mother,” “adoptive mother,” “genetic
mother,” “foster mother,” and “stepmother.” Such radial cate21
22
Id. at 76-86.
Id. at 26, 100-01, 189-90.
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gories are much more common within language than the earlier example of the square. Each has certain connections to the
core idea of “mother” but each also has differences.
The key point is that it’s unsurprising that the categories used in legal rules don’t often precisely fit the facts. Indeed, we should expect that judges will encounter situations
where there’s doubt about the applicability of legal categories
because that’s how language works. Moreover, language works
that way, Winter continues, because it reflects the basic cognitive apparatus with which humans encounter the world. We
use categories because they are useful to us, and since the
world is constantly changing, we must be able to adapt those
categories to fit new situations.
Winter’s points about categorization would alone be sufficient to have launched legal theory in a promising new direction. We have long asked: If the legal materials themselves
cannot formally dictate outcomes in many legal disputes, what
kind of thought process do judges employ to determine those
outcomes? It’s not much of an answer to say judges rely on
hunches.23 Nor can we learn much from a theory that says
judges make the materials the best they can be.24 Just what
way is that? Winter proposes that recent developments in cognitive theory tell us a great deal about the kinds of arguments
which judges will and will not find plausible.25 Accordingly,
Winter goes well beyond his discussion of categorization to introduce us to a new vocabulary for understanding human
thought and thus a new set of tools for predicting which arguments are likely to resonate with judges.
Readers of this law review will have to read Winter’s
book for themselves to gain a full grasp of this vocabulary. After all, if it could be summarized in a paragraph, why would
Winter have needed to write the whole book? But the core idea
is that human thought patterns stem from our situation as
embodied beings encountering a treacherous world. It’s not
surprising then that we move from concrete experiences such
as the power of standing erect to abstract metaphors such as
the idea of standing in court.26 Equally important is our ex23
Id. at 157-58 (citing Hutchinson).
WINTER, supra note 6, at 129 (citing Dworkin).
25 Id. at 248-53.
26 For Winter’s magisterial and still unequaled treatment of the relationship
24
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COGNITIVE THEORY AND THE TEACHING OF LAW
997
perience as social beings in which we assimilate information in
terms of idealized cognitive models to make sense of our world.
Accordingly, arguments that seem perfectly rational when
viewed from the perspective of someone unfamiliar with our
culture may be rejected promptly by judges steeped in American lore.
I constantly tell my students that the National Basketball Association (“NBA”) should require at least two women to
play on the court at all times. Choosing only men is clearly discriminatory and violates Title VII. The NBA rebuttal that the
men are better players begs the question: In what sense are
they better? If what’s meant is that they perform better on the
court, this is illogical. Since the game is competitive, as long as
the other team also has two women, no team will suffer competitively. If by contrast what’s meant by better is that the fans
prefer to see all men, and thus will pay more for the games,
this also is not definitive. Courts long ago rejected the “customer preference” defense when airlines argued that their
business clients preferred young, attractive flight attendants.27
I have yet to hear an argument that persuades me to give up
my Don Quixote quest for co-ed basketball. But Winter’s work
urges me to focus instead on how I know my task is futile, at
least in the short run. It’s not because my argument is illogical.
Instead, it’s because society—and judges—in our culture reflexively experience sporting events as gender segregated and find
this perfectly natural. In the long run, I might change hearts
and minds. But only then will the law follow.
When arguing that we can better predict judicial outcomes if we understand embodied thinking and socially contingent, idealized cognitive models Winter’s book will produce two
common misreadings. Let’s dispense with them here. Winter is
not calling for a return to modified formalism. He believes that
judges will find themselves constrained by the categories and
rules established in legal materials. A judge cannot credibly
hold an executive liable for sexual harassment if he smiles
more often when his secretary wears attractive clothes. But
Winter never argues that the word harassment, which one
might find in a statute or precedent, isn’t big enough to acbetween law and metaphor, see Steven L. Winter, The Metaphor of Standing and the
Problem of Self-Governance, 40 STAN. L. REV . 1391 (1988).
27 Wilson v. S.W. Airlines Co., 517 F. Supp. 292 (N.D. Tex. 1981).
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commodate such an interpretation. In other words, it’s not the
legal materials alone that provide the constraint. It’s what we
have been taught collectively about our society and the kinds of
things that might legitimately be found actionable.
Neither is Winter arguing that all is right with the
world because courts will interpret ambiguous legal materials
in line with a general societal consensus. His is not a Panglossian view, and he is fully aware that many issues in our culture are deeply contested. Rather, his point is that a thorough
study of methods of conceptualization will tell us a great deal
about whether certain arguments might resonate with judges
who most typically come from the dominant parts of the culture. As Winter would describe it, there is plenty of room for
innovation and imagination within the law. But arguments
that ask judges to invent doctrines out of whole cloth are not
consistent with the practice of law as he has seen it. Indeed,
the resistance of judges to think outside the idealized cognitive
models Winter describes leaves Winter quite sober about how
gaps in the law will be filled. For one thing, gaps will often go
unrecognized, since judges will fail even to comprehend the
quite logical arguments challenging their point of view.28 And,
when judges do see a gap, the consensus they search for will as
often be conventional wisdom as an actual consensus. Compare, for example, the reaction of the nation’s journalists to the
Monica Lewinsky scandal (a president who lies must go) with
the more measured reaction of the voting public.29
So, to return to the theme with which we began, Winter’s emphasis on a broadened concept of human rationality, on
a flexible, adaptive view toward categories, offers us a fresh
take on the formalism/anti-formalism debate. With Winter’s
view, law can have its cake and eat it, too. It can be constrained and flexible, adaptive yet not reductively political,
28
Winter provides a nice example of this when discussing the Supreme Court
majority’s inability to grasp Justice White’s argument in dissent in Immigration &
Naturalization Servs. v. Chadha, 462 U.S. 919 (1983). WINTER, supra note 6, at 245-53.
29 Noted columnist Frank Rich summarized it this way, “From the moment
Mr. Clinton first wagged his finger about ‘that woman’ a majority of the public judged
him a lying philanderer—even as they came to the parallel conclusion that his scandalous behavior shouldn’t force him from office. Though the Washington establishment
would eventually be driven bananas by the compartmentalization of those two opposed
ideas, Americans beyond the Beltway, possessed of first-rate intelligence, shrugged it
off. And the country functioned just fine.” Frank Rich, N.Y. TIMES, Feb. 13, 1999, at
A19.
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COGNITIVE THEORY AND THE TEACHING OF LAW
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imaginative without being whimsical. To repeat, this does not
leave Winter endorsing anything like our current legal system
or any particular outcomes. But it does leave him a more credible defender of the rule of law than any other writer I know.
II.
EXPANDING THE COGNITIVE FRONTIER
As a fan of Winter’s work, I want to use the rest of this
Essay to explore the ways in which I think A Clearing in the
Forest poses questions that should engage legal theory for a
good long time to come. Above all, Winter is to be congrat ulated for bringing renewed focus to the question of how judges
are actually persuaded, rather than leaving us languishing in
the failures of formalism. To avoid the role of unabashed cheerleader, however, let me first describe two ways in which I believe Winter might yet improve on the account of law provided
here.
Let’s talk first about the enemy Winter claims to be
vanquishing. He asserts that lawyers, judges, philosophers,
etc., have fallen victim to a reductionist view of rationality.30
Over and over again Winter shows how sophisticated thinkers
make errors by trying to solve complex category problems with
formal technical lines. For example, Chapter 11 does a wonderful job of critiquing a Supreme Court decision on perjury by
pointing out how the Court was in the throes of a literalist (as
opposed to a socially-grounded) view of the notion of a lie.31 Indeed, much of the book’s very hard work is its painstaking care
in explaining so many important aspects of law (rules, analogies, doctrinal shifts) in terms of a struggle between the rationalist model and the newer, more sophisticated, cognitive
approach. (Winter means it when he invokes the “rational argument is war” metaphor.)32
From my vantage point, however, this structure is a
30
For a description of the reductionist view, see WINTER, supra note 6, at 8-9.
WINTER, supra note 6, at 297-309. I agree with Winter that the Court was
wrong in Bronston v. United States, 409 U.S. 352 (1973), to reverse the defendant’s
perjury conviction. Certainly it is a misleading response to the question: Do you have a
bank account in Bank X to answer “the company has an account there,” when you
know you also have a personal account there. Whether the Court was lulled by the
rationalist model or just generally loathe to find criminal liability in cases of doubt is
much less clear to me.
32 WINTER, supra note 6, at 112.
31
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remnant of precisely the kind of thinking Winter is trying to
transcend. Are we not running the risk of embracing a p and
not-p structure (like the kind we saw in the definition of a
square) when we so sharply contrast the rationalist model with
a more cognitive approach? And there’s a second mystery.
Where exactly does this primitive rationalist model come from?
Winter details the model as though it was built mostly by sophisticated lawyers, philosophers, and legal thinkers bumbling
about trying to make sense of their jobs. Too often for my taste
he contrasts their mistaken views with the deeper truth of
“common sense.”33 But, of course, the rest of the book describes
most sophisticated models of thought as built from the ground
up.
It’s worth asking then whether the rationalist model
that Winter wants to replace in fact serves important social
functions. A great deal of cognitive space, for example, is saved
when we pretend our categories are open and shut. And, the
human ability to manipulate categories that Winter so brilliantly describes develops over time and can be dangerous if it
comes too early either in a lifetime or in the life of an institution. Imagine the inner smile a parent might feel when he asks
his young child why she didn’t pick up the lost $100 bill before
the wind took it too far away. “Daddy,” she replies, “you told
me never to go in the road.”
Perhaps one way to describe our situation using Winter’s own terminology would be to see the rationalist notion of
categorization as a product of “prototype effects.”34 Just as
Winter sees a dining room chair as more representative of a
chair than a beanbag, perhaps the binary category forms the
core or prototype of our notion of category. The point would not
be so much to re-orient the lines of future inquiry into the nature of law. We want as much as possible to change the subject
to focus on the complex thought processes that decision-makers
and law creators go through as law is made and applied. But
Winter’s entire book is aimed at the process of “antinomial capture” (faith in rules or needless dismay over rules’ inadequacies) that has allegedly blinded judges and legal scholars alike.
Think what an addition it would be to chart the source of this
rampant misconception.
33
34
Id. at 309.
Id. at 76-86.
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My second quibble goes deeper into the heart of Winter’s approach. For several reasons, I am much less persuaded
than he is that cognitive theory rescues us from the longstanding preoccupations of the anti-formalists. Let’s take for
granted (and I have no trouble with this) that cognitive theory
provides a sound antidote to concerns that a “rogue judge” will
ignore the law and instead opt to impose his or her political
predilections on an unsuspecting public. Is this really the problem that has led realists and critical legal scholars to focus on
indeterminacy in law?
Winter argues that in most cases, judges will be restricted to only those interpretations of the existing legal materials that find resonance in the social practices of the community.35 True enough. He also notes that only a deeply fractured
community need fear that judges will fail to maintain some
sort of stability even as they alter the legal landscape to fit
changing social reality.36 Fine. The question, however, is ought
we to turn ourselves over to the particular kind of
stability etched for us by the judges who happen to have
clawed their way into judicial robes?
The conventional answer, and the one Winter and all
anti-formalists reject, is that the legal materials themselves
are sufficiently binding that a judge in good faith should reach
the same outcome in most cases. With this long since discredited view, it almost doesn’t matter who makes it to the bench.
Once we all agree, however, that the legal materials are sufficiently indeterminate so as to create room for judicial discretion, why should we be at all comforted by the fact that the
room created is not infinite or open-ended?
Winter says that the indeterminacy is there but that
judges can be counted on to use it in more or less predictable
ways.37 This claim, however, needs much more elaboration. In
his book, Winter shows convincingly that there are cognitive
structures and patterns that can be helpful in explaining why
some alternatives were more likely to be adopted than others.
But this is too easy a target. Even the most vocal proponents of
legal indeterminacy have long agreed that law is often predict35
Id. at 327-31.
Id. at 329.
37 Id. at 152-54.
36
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able.38 It is not enough then to provide compelling reconstructions of famous opinions such as Justice Hughes’ argument in
Jones v. Laughlin.39 If I am a strong opponent of federal power,
will I really be comforted to know that the metaphors Justice
Hughes adopts to bring about my undoing have a basis in
changing social reality? Suppose I am deeply troubled by such
changes and view the courts as my best hope to turn things
back in my direction?
The general point is that the anti-formalist critique begins not with the idea that there are an infinite number of
plausible positions in a legal dispute, but that there are at
least two. Moreover, in many cases the two positions will line
up with deeper disputes within society. If the judge who makes
the choice can find plausible arguments within the existing
culture for either of those two positions, what difference does it
make to the losing side that many other positions were foreclosed to the judge as a result of cognitive constraint? Now it
may be a more viable political strategy to focus on how to
change the judge’s mind than to spend time demonstrating
over and over again that the judge is making a political choice.
But this is a much more interesting argument than an approach faulting the critics for overstating the nature of indeterminacy.
Moreover, the anti-formalists are troubled by concerns
that receive too little emphasis when we repeatedly paint
judges as trying to “make sense” of the case before them. Imagine, for example, a fact pattern in which a supervisor makes a
few inappropriate and suggestive remarks to his female employee, sends her flowers on her birthday, asks her out once
but takes no for an answer, and then passes her over for a
promotion. If she sues under Title VII, it might be plausible to
treat the various incidents as isolated or as part of a pattern,
and to treat the denied promotion as connected to or wholly
independent of the other activity.
A Clearing in the Forest provides us a wonderful new
lens through which to litigate such a case. As the woman’s
lawyer, one might try as hard as possible to make the facts fit
with what Winter might refer to as the idealized cognitive
38 See, e.g., Joseph William Singer, The Player and the Cards: Nihilism and
Legal Theory, 94 YALE L.J. 1, 12 (1984).
39 301 U.S. 1 (1937).
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model of harassment.40 Here the key would be to fit the facts as
closely as one could to a “quid pro quo sex for advancement”
narrative. A subsequent retrospective view of a judicial opinion
denying her claim might also look for ways in which the judge
was not convinced that the case resembled a familiar idealized
cognitive model (“ICM”).
Yet, of course, another possibility is that the judge in
question is generally hostile to all sexual harassment claims
and will do whatever he can to interpret an ambiguous situation against the woman. In this case, Winter might say that
the law was entirely “determinate” in that one could have predicted the woman would lose. But the power afforded to such a
“biased” judge is an understandable concern. Additionally, a
legal system that afforded the judge a platform to write an
opinion that purportedly “makes sense” of the outcome could be
a source of genuine and legitimate anger.
Generalizing from this example, one might say that
Winter and other anti-formalists both have valid standpoints
from which to criticize judicial outcomes. The familiar antiformalist position is that indeterminacy in the legal materials
leaves judges room to import outside political views. The judge
who is hostile to harassment, for example, might be more likely
to see a series of “isolated incidents” than a coherent pattern of
inappropriate conduct. Winter rightly calls our attention to the
opposite side of the coin. The categories we call upon judges to
determine and the decisions we ask them to make often already reflect many of the deeper values at stake. Our judge, for
example, may actually be hostile to harassment claims precisely because he tends to believe women see patterns where
men do not intend them. Thus, his so-called politics may come
from his “making sense” of the facts rather than his effort to
impose a vision onto an ambiguous narrative. I applaud Winter
for emphasizing the importance of this standpoint. But I think
he makes a mistake to so quickly dismiss the more gardenvariety fears of political manipulation that dominate the work
of many other legal theorists.
Nor would I want to lose the critical bite available to
40 For a discussion of idealized models which relies heavily on the work of
George Lakoff, see WINTER, supra note 6, at 88.
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anti-formalists who highlight judicial flip-flops on matters of
method. Suppose, for example, that a particular judge writes a
great opinion in one case showing how a series of seemingly
isolated comments actually form a pattern of behavior that
constitute assent to a commercial contract. This same judge
then rejects an effort to link together a similar pattern of incidents in the context of a sexual harassment case. I would find
enormous value in the kind of analysis Winter might do in
showing how the nuances of the cases and the available idealized cognitive models might have made it perfectly predictable
that the judge would rule one way in one case and one way in
the other. But I would also be thrilled to read a stinging critique of the judge for politically manipulating facts to get his
way in both instances.
A final point along these lines would be to ask Winter
for additional help with the aspect of judicial opinions that the
realists have forever added to our legal culture, the emphasis
on future consequences. The familiar point is that judges in
doubt over the meaning of the legal rules will shift focus to
consider the real world impact of a decision one way or the
other. Take, for example, the current issue under discussion
concerning whether the attack on the World Trade Center was
one incident or two.41 Suppose a judge in good conscience decides this could be interpreted either way and thus rules for
the insured on grounds that the consequences to the insured
would be more severe if the per incident cap barred total recovery. Another judge might agree that the issue could go either
way but would have ruled for the insurance companies so as to
stabilize prices in the insurance market. Winter’s analysis
would lead us rightly to conclude that in a certain sense such
policy concerns are involved in every case, not just the rare
events of September 11. That’s because the meaning of each
legal rule depends on context and the context always includes
the future consequences o f a decision either way. How then will
cognitive theory help us to predict the role of consequentialist
analysis in legal decision making?
These quibbles aside, or perhaps because of them, the
41 According to newspaper accounts $3.6 billion turns on whether insurers
may properly invoke the cap on liability per occurrence or whether this cap must be
paid twice, once for each event. See Jonathan D. Glater, Trade Center Leaseholder Sues
a Big Reinsurer, N.Y. TIMES , Nov. 8, 2001, at B1.
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easiest thing to say about the breathtaking scope of A Clearing
in the Forest is that it paves the way for new topics of inquiry
into the nature of legal decision making and offers hints at a
whole new agenda for the teachers of law. To this latter topic I
now turn.
III.
TEACHING LAW DIFFERENTLY: PLANTING COGNITIVE
SEEDS
Consider the following straightforward assessment of
what it means to teach law: Law is impossible if it cannot be
communicated from one person to another and from the state
to its citizens. Verbal and written language are the predominant, if not exclusive, forms for the communication of law. Accordingly, to succeed, law teachers must devote considerable
time teaching students about the nature, origins, properties,
strengths, and weaknesses of language.
Or consider the slightly more complex but equally irrefutable argument: Law is unworthy of university study
unless it aims to link the existing rules governing human conduct with some notion of what those rules ought, in fairness, to
be. In short, law, if not each individual lawyer, must strive for
some form of justice. Justice, however, is an elusive concept
whose analysis depends on delving deeply into the nature of
persons. How do individuals come to have a concept of justice?
What forms of reasoning lead us to distinguish between what is
and what ought to be? There may be no answers to such questions, but certainly one could not really grasp the enterprise of
law if one failed to ask them. Accordingly, to succeed, law
teachers must develop a curriculum and method of instruction
that directly addresses questions of human nature and human
psychology.
These arguments are not new. They were well understood by many during the heyday of legal realism. Roberto
Unger’s 1975 Knowledge and Politics42 was a tour de force performance convincingly returning us to the impossibility of
separating legal and political questions from more epistemological and philosophical ones. As should be clear from my description in Part I, A Clearing in the Forest deserves a proud
42
ROBERTO MANGABEIRA UNGER, K NOWLEDGE AND POLITICS (1975).
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place in this cognitive tradition for having added considerable
depth and countless insights. Winter wants to change the subject of discussion from whether the law works as its theoretical
defenders suggest, to how legal rules work the way its practitioners observe.43 For law teachers such a shift should have
dramatic consequences for how we introduce students to law
and what topics we emphasize. Human tendencies that ground
and shape our ability to construct legal and normative systems
might replace common law doctrines as the core of the law
school’s first ye ar.
Our current law school curriculum divides legal issues
around what Professor Winter might describe as idealized cognitive models of basic human interactions. So we imagine a
readily understandable deal between a buyer and seller and
fashion a course in contracts, a readily understandable injury
caused by a stranger and fashion a course in torts, and so on.
Notice, however, that even these most traditional courses are
taught in ways that belie the formalist approach to law. No one
teaches as if simply learning legal rules was key to successful
practice. It is commonplace instead that law school is about
teaching our students how to “think like a lawyer.” Almost as
commonplace is the wry observation that, however often we say
this, we provide precious little content about what it means.
Winter’s turn to cognitive theory presents us with an
opportunity and a vocabulary to change all this. Take, for example, his sustained focus on the process of categorization. The
fashioning, re-fashioning, and interpretation of categories cuts
across all legal doctrines. Yet, although our students spend
three years watching us pull categories apart, we rarely do
them the favor of providing names for the familiar problems
with categorization that they will face as lawyers or that
judges face when deciding cases. Occasionally we define important interpretive techniques such as narrowing and broadening
a holding in an appellate case. But seldom do we show the application of such techniques in a systematic fashion. Nor do we
identify thought structures that make certain narrowing of
cases likely to be more persuasive than others. No wonder our
students are shocked when our lengthy exam hypotheticals call
43 This is the theme of his discussion of narrative (chapter 5), case analysis
(chapters 6 & 7), rules (chapter 8), analogical reasoning (chapter 9), and statutory
interpretation (chapter 11). WINTER, supra note 6, at 104-38, 139-85, 186-222, 296-331.
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COGNITIVE THEORY AND THE TEACHING OF LAW
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upon them to apply legal reasoning techniques to issues they
have never quite faced before.44
What would law teaching look like if we were to make
the following reversal of our customary approach, or what Professor Winter might call a gestalt switch?45 We could move the
traditional doctrinal categories of tort, property, contracts, administrative law, constitutional law, etc., into the background.
They are, after all, a historical artifact attempting to find the
appropriate level of abstraction from appellate cases to give
law a more universal and scientific feel. Our goal now would be
to abstract from the problems of lawyering and judging in a
different way. So we would move into the foreground the complex and familiar riddles that decision-makers encounter when
attempting to impose orderly law on disorderly life.
This is much less radical that it sounds when one considers that most law schools have long offered courses in statutory interpretation, courses that adopt precisely the kind of
cross-cutting strategy to which I refer. Many law schools also
put one course into the first year , sometimes called Elements of
the Law, aimed at looking across doctrinal boundaries.46 Because such courses are an anomaly, however, students often
treat them as a necessary evil to be overcome so they can get
back to real work. It’s interesting that despite the widespread
adoption of both types of courses, so little common vocabulary
has emerged from them. Most lawyers know the difference between a literal and a purposive reading and most are familiar
with a few canons of interpretation. What I am looking for,
however, is an entirely new vocabulary that would call to mind
familiar problems that one should expect to encounter in interpreting a statute or a case. The closest analogy I can draw is
Joseph Heller’s unforgettable coining of the phrase “Catch 22”
to describe the paradox encountered by pilots who could not be
44
Michael Fischl and I attempt to remedy this surprising gap in law teaching
with a sustained analysis of the patterns in legal argument that create the opportunity
for professors to build so many ambiguities into exam questions. Fischl & Paul, supra
note 1, at 21-193. As will become clear from the text, I view our project and Professor
Winter’s as close cousins. All three of us see thought patterns and structures of argument not as the exclusive preserve of fancy theory courses but as at the absolute core of
law practice and any sound legal education.
45 Steven L. Winter, An Upside/Down View of the Countermajoritarian Difficulty, 69 TEX. L. REV . 1881 (1991).
46 For a sterling effort along these lines, see SOIA MENTSCHIKOFF & IRWIN P.
STOTZKY, ELEMENTS OF THE LAW (1981).
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grounded on the basis of mental unfitness unless they so requested but for whom the filing of a request was proof that the
pilot was mentally fit.47 What would law school teaching be like
if we could identify Catch 23, Catch 24, Catch 25, etc., that fit
the roles of lawyers and judges that we send our students out
to fill?48
Consider first how we might conceptualize this sort of
switch in legal education if we were thinking broadly about
education as a whole. Most sports camps, for example, will divide classes into various sports—one hour of baseball, one hour
of basketball, one hour of football, etc. In each sport, we can
almost hear the coach repeating to the players the familiar refrain, “keep your eyes on the ball.” Indeed, it is hard to imagine
a more conventionalized expression, and thus as Winter’s
teachings would predict, the phrase has become a metaphorical
projection for all sorts of situations in which a person with a
project is urged not to lose sight of the goal. Purposes are Destinations. No matter how many times coaches tell us, however,
many of us literally find ourselves taking our eyes off the ball
and thus failing to catch it or hit it when it comes our way.
Why? Sometimes we are focusing too much attention on our
own performance (is my swing even?); sometimes we fear the
pain to be inflicted by the oncoming tackler; sometimes we are
thinking ahead to the next act (passing the ball to the open
woman). Imagine then a sports camp that rearranged itself so
that it had a one -hour clinic called “Keeping Your Eyes on the
Ball.” In such a clinic, players would be put in various situations from different sports and asked to attend to the reasons
why they had taken their eye off the ball at a crucial moment.
Each individual might learn about his or her own tendencies to
be distracted and as a result become a better player in all
sports than he or she might have become by focusing on one
sport alone. Perhaps in a world where sports are fixed, it might
make sense to focus only on the techniques useful in your particular sport. But in law, where legal categories are constantly
shifting, the ability to abstract conceptual skills of a similar
47
JOSEPH HELLER, CATCH 22 46-47 (1962) (1955).
I have begun work on devising a first year law school curriculum along
these lines and presented my preliminary thoughts under the title “Catch 23 - What
Would a Law Culture and Humanities Curriculum Look Like” in Philadelphia at the
2002 conference of the Association for the Study of Law, Culture and Humanities.
48
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COGNITIVE THEORY AND THE TEACHING OF LAW
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kind might prove enormously instructive.
In my experienc e as a law student, the best example of
the attempt to foreground a patterned conceptual issue was
Duncan Kennedy’s extensive re-visiting of the age-old conflict
between rules and standards.49 In his terminology, rules are
those legal directives that call upon the decision-maker to apply them directly with little appeal to the underlying purposes
which led to the adoption of the directive in the first instance.50
His easiest example involved constitutional provisions that
establish that a person who reaches the age of eighteen is eligible to vote. In contrast, a legal directive that attempted to
resolve the same issue with resort to a standard might make
eligibility to vote rest on whether the potential voter had
reached sufficient maturity to make an informed choice. Kennedy’s classic article then explores some of the basic conceptual
maneuvers with which every lawyer should be familiar. Rules,
for example, tend to be both over and under-inclusive from the
perspective of the underlying purpose at which they are
aimed.51 Thus, some seventeen year olds are undoubtedly as
mature as most adults and some nineteen year olds are probably still not to the point where we would respect their political
judgment. Rules, however, have the advantage of removing
some discretion from the decision-maker and thus creating
greater confidence in the objectivity of the law. My point here
is not to rehearse fully a rules/standards analysis but to use
this as an illustration of what law school could move to the
foreground if we took Winter’s insights and the phrase “thinking like a lawyer” seriously.52
I teach the rules/standards dichotomy to my property
students every year and find they remember it better than almost anything else we cover. My favorite year was when students pushed to compare the rules/standards debate to an
imaginary one between standards/discretion. In this class, the
proponents of discretion attacked the champions of standards
49 See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89
HARV . L. REV . 1685 (1976).
50 Id. at 1687-88.
51 Id. at 1689.
52 For more of my thoughts on this problem see Jeremy Paul, The Politics of
Legal Semiotics, 69 TEX. L. REV . 1779 (1991) (arguing that Kennedy’s only significant
mistake was attempting to link a political valence to each side of the rule/standard
dichotomy).
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for rigidly believing that the law or similar written guidelines
should identify in advance those criteria a decision-maker
should use to determine a just outcome. Better, for example, to
run a grant competition in which the funds go to those deemed
(in tautological fashion) “most grantworthy” than to those
whose proposals are the most “inventive and likely to bring
significant change.” The latter has the rule-like advantages of
allowing the grant writers to guide their behavior and tailor
their application toward some sort of standard. But what happens when the granting committee reads a proposal and finds
it neither particularly original nor at all certain to produce
change? As it turns out, though, it is the only application relating to global warming and the committee now concludes this is
an area deserving funds. The students point out that when the
world is rapidly changing the seemingly open-ended standard
looks like the closed-ended rule in comparison to a system that
gives even greater discretion to the decision-maker.
Such conceptual play in class is exactly what I hope to
be encouraging. And I knew I was on safe ground when our
local legal newspaper last fall published an article on real estate practice by a local attorney that detailed the difference
between rules and standards in terms that would have made
Duncan Kennedy proud. Yet no course in the curriculum as it
now stands is explicitly charged with covering the
rules/standards debate and thus it is haphazard whether students formally encounter it at all.
The rule/standards debate may appear too simplistic to
warrant calls for its inclusion as anything more than a riff in
the standard property or contracts course. But, of course, the
point, as A Clearing in the Forest so clearly demonstrates, is
that there are almost an infinite number of these sorts of conceptual patterns built into the project of law. All we have to do
is begin searching. Here’s my latest favorite. So far, I am calling it a “two-fer.”
Consider a rule structure that requires a claimant to
make one of two showings in order to gain special favor from
the decision-maker. The example that first came to my attention is the structure of equal protection doctrine under the U.S.
Constitution as defined by the Supreme Court.53 An individual
53 As shall be clear from the text, I owe the example and much of my thinking
on the topic to two creative and conceptually rich articles by Julie Nice. See articles
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who believes she has been discriminated against at the hands
of government has two ways she can get the Court to take her
case seriously. First, she can show that she is a member of
what the Court calls a suspect class. So, for example, if Texas
decided to pay reduced welfare benefits to people with Spanish
surnames to help combat illegal immigration from Mexico, a
Mexican-American woman could almost certainly receive an
injunction prohibiting the state plan from taking effect. Because national origin is a suspect class the Court would analyze the regulation using strict scrutiny to determine whether
there was a compelling state interest that was narrowly tailored to meet the state’s objective. Texas could not possibly
make such a showing.
Second, a claimant can obtain strict scrutiny if what she
has lost is considered by the Court to be a fundamental right.
So, for example, if New Jersey was fighting overpopulation and
made it a crime for a woman over forty to have a child, a fortyone year old woman could probably have this statute invalidated as well. Age is not a suspect class, but the right to bear
children is fundamental. New Jersey’s claims that medical risk
goes up at forty would never be enough to show either a compelling state interest or that the statute was narrowly tailored.
If, however, a particular claimant can make neither
showing (i.e., neither membership in a suspect class nor loss of
a fundamental right), then the government is typically permitted to regulate as long as there is a rational relationship between the line drawn and a legitimate governmental aim. For
example, when the government changed regulations governing
food stamps to withdraw them from workers displaced as a result of labor strife, the Court found no constitutional violation.54 The Court has found no fundamental right to food
stamps and displaced workers are not part of any historically
suspect class.
Now comes the fun part. Suppose the Court is asked to
resolve a case in which the group that has suffered has not
been judicially determined to be a suspect class, but the group
has many characteristics that would make it eligible for such a
cited infra note 55. She takes the topic in a different direction from the one pursued
here but it was her work that alerted me to the intrinsic interest in the equal protection problem the Court faces.
54 Lyng v. Castillo, 477 U.S. 635 (1986).
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classification. Moreover, assume that what has been taken
from the affected parties is something very important but not
so significant as to have been found by the Court to be a fundamental right. In two innovative and wonderful articles, Julie
Nice has noticed just such circumstances present in three cases
where the Court has found an equal protection violation without finding either a suspect class to be present or a fundame ntal right to be taken.55 She notes that in Romer v. Evans56 the
Court invalidated an amendment to the Colorado Constitution
without finding either that sexual orientation is a suspect class
or that any fundamental right was lost as a result of the peculiar provisions preventing municipalities from adopting antidiscrimination protection for gay citizens. In Plyler v. Doe,57 the
Court prohibited Texas from denying a public school education
to undocumented immigrants, even though undocumented
aliens have never been held to be a suspect class and the court
had explicitly refused to declare a fundamental right to an education. And, in M.L.B. v. S.L.J.58 the Court found an equal protection violation in Mississippi’s scheme denying an indigent
woman who could not afford to pay for a transcript the right to
appeal. The Court, of course, has never held wealth to be a
suspect class. Nor has it held that the right to a civil appeal is
fundamental even in the context where the underlying issue
was the termination of the woman’s parental rights. What accounts for these decisions?
Professor Nice offers an illuminating explanation, suggesting that in many cases a class of Americans may be considered more seriously deprived and thus more worthy of suspect
classification when what has been lost is significant.59 Similarly, she argues that we may care more about a particular loss
if it seems to be something most often taken from a historically
deprived group.60 As she describes it, rights and classes are coconstitutive of each other and the Court is implicitly acknowl55 Julie A. Nice, Equal Protection’s Antinomies and the Promise of a CoConstitutive Approach, 85 CORNELL L. REV . 1392 (2000); Julie A. Nice, The Emerging
Third Strand in Equal Protection Jurisprudence: Recognizing the Co-Constitutive Nature of Rights and Classes, 1999 U. ILL. L. REV . 1209 [hereinafter Third Strand].
56 517 U.S. 620 (1996).
57 457 U.S. 202 (1982).
58 519 U.S. 102 (1996).
59 Nice, Third Strand, supra note 55, at 1222-26.
60 Id.
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edging this in the three cases she cites.61 This accounts, she
argues, for an emerging “third strand” in equal protection
cases.62 I find her analysis intriguing and have no interest in
disputing it here.
Instead, I want to generalize from the problem she so
astutely identifies. Let’s start with a simple example from outside the law. Suppose you were on a diet and had two rules for
yourself. One rule was that you would allow yourself a small
dessert after dinner if you had skipped lunch on the same day.
The other was that you would allow yourself dessert if you had
run your typical four miles that day. It is 8 p.m. and that small
bowl of frozen yogurt is quite tempting. You reflect back on
your day and recall that you had a dry bagel, nothing on it, and
black coffee at noontime. You also cut your run short after 3 ½
miles when it started to rain. May you indulge? At first blush,
of course not. You have not met either standard and thus no
yogurt for you.
If you can stick to this regime, more power to you.
Here’s why I’d be likely to partake. In the end, the reason behind both the no-lunch rule and the four mile requirement is
the same. Lunch puts in calories. Exercise takes them off. Thus
the combination of a light lunch and an almost full workout is
quite likely to be a greater net contribution to weight loss than
either one alone. Even though the rules crafted for the diet are
separate, it would be rather stubborn to insist on keeping them
that way. And since the diet rules are those that I have probably imposed on myself, I would have little trouble concluding
that coming close twice was good enough. Perhaps this is why
my diets never work.
Can we learn anything from this example that is helpful
to our constitutional law problem? Do the two judiciallycreated strands of equal protection analysis fit together in the
same way as diet and exercise? Not exactly. There’s no simple
mathematical equation that suggests we can add together the
amount of discrimination suffered by a particular group to the
weight of what has been lost in a particular case to reach a
constitutional conclusion about whether the Equal Protection
Clause has been violated. Certainly, however, we can see why a
court will struggle when facing a case with a claimant who be61
62
Id. at 1226-48.
Id.
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longs to a group that is almost a suspect class and who has lost
something almost as important as a fundamental right. On one
hand, there’s a strong formalist tendency to tell the claimant
no. Sorry, we can imagine a judge saying, you just didn’t meet
either of the required standards. On the othe r hand, from a
purely conceptual standpoint a court might be very tempted to
look at the case more broadly. If the government is to be
watched more closely when there is a suspect class and when it
takes away something fundamental, shouldn’t it also be
watched more closely when the claimant gets close on each? Is
the formalist or the more conceptual approach more likely to be
adopted by a decision-maker? This is precisely the kind of
question I want to see brought to the foreground of a good legal
education.
Let’s look at the same problem again in a different context to show how familiar it truly is. In my current role as associate dean, I get all kinds of requests from students wishing
to get the most out of their education. One request I faced recently hit me, you guessed it, as a “two-fer.” Connecticut rules
permit law students to practice before our courts when properly supervised. To be so certified, students must “have completed legal studies amounting to at least two semesters of
credit, or the equivalent if the school is on some basis other
than a semester basis except that the dean may certify a student under this section who has completed less than two semesters of credit or the equivalent to enable that student to
participate in a faculty-supervised law school clinical program.”63 The University of Connecticut runs an evening division program. Accordingly, we have students who have completed a full year in this program, and thus two semesters, but
for whom, ordinarily, certification would not be available because students earn fewer credits during the first year of the
evening program than in the day program.
Our school is also home to a not-for-profit advocacy
group directed by a fabulous attorney who supervises many of
our students. This director is a member of our adjunct faculty,
so work for this advocacy group might constitute a “facultysupervised clinical program.” Ordinarily, however, I would not
read it this way. If a first—year student wanted to work in this
63
CONNECTICUT PRACTICE BOOK § 3-16(a)(2) (1998).
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program, I would conclude that the exception in the Connecticut practice rules was meant to apply only to our more formal
legal clinics, which in fact are not open to first-year students.
You probably already see the question. What should I do
with a student who has finished one year in the evening program, and is thus close on that requirement, and, who wants to
work in our advocacy center, and is thus close on that one as
well? Here the context is different from the diet or even the
constitutional law case. The Court in equal protection cases is
following precedent it has set out for itself. As a mid-level bureaucrat I am bound to follow the dictates of the practice rules.
Would it thus be illegitimate for me to certify the student on
the grounds that she has gotten close on each of two different
requirements?
Clearly the point of requiring two full semesters is because the drafters wanted to make sure that the student has
enough legal background to function effectively. Clearly the
drafters also believe that a formal program run by a faculty
member might make up for gaps in student background. Isn’t it
likely that the fine supervision and careful organization in a
not-for-profit center on our campus will contribute to a good
experience and thus could make up for the minimal gaps remaining after one full year of school in the evening division?
My guess is that most lawyers would urge me to say no
to these students. More important, I imagine the reaction of
many to this kind of problem would be strong and visceral, but
that this reaction would not readily match some predetermined set of ideas about broad political issues. This is
why I agree with Winter that attempting to chart judicial outcomes by solely looking at classic left/right politics is likely to
prove unsuccessful. Indeed, sometimes I have to shake my
head to remind myself that people who disagree with me almost violently on issues, such as what to do with “two-fers,”
often are my staunchest allies when it comes to electoral politics.
I want my students to think through problems such as
the existence of “two-fers” because I know they will encounter
them in practice. My fear is that, in our current curriculum,
students experience comments from professors such as, “Have
you considered the structure of the intellectual problem faced
by the judge?” as flights of frivolity employed to keep them in-
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terested in otherwise dull topics. But there is a lot to be said in
trying to systematize the “two-fer” issue. How did the two requirements get set up in the first instance? Are they aimed at
producing the same goals? Did the decision-maker consider and
reject a broad standard for grouping all considerations into a
more open-ended balancing test? Will the number of cases presenting the “two-fer” problem swamp the basic rules? Is there a
meaningful way to cabin the “two-fer” exception within the
particular context? Until and unless we identify such issues for
students, we are likely to get the same reaction I got when I
told a group at our alumni association that I was working on
the “two-fer” problem and provided a brief explanation. Quickly
the question came back, why would anyone ever want to say
yes just because a claimant had come close on each of two independent requirements? I was scared to ask why anyone
would ever want to say no?
“Two-fer” problems appear with large stakes as well as
small. Consider this example provided by my colleague Laura
Dickinson. She tells me that under international law, there are
generally two justifications for one state to use force against
another. The first is the right of self-defense under Article 51 of
the United Nations Charter. The second is the right to act
(with the approval of the United Nations Security Council)
when there is a threat to international peace and security. Our
case justifying our action against the Taliban might be seen as
falling just short on either one.64 Our self-defense case might
falter because we would have trouble showing that a state actor had effective control over Al-Qaeda in such a way to justify
our attacking that state. Merely having terrorist actors within
a state’s territory cannot be enough to give rise to grounds for
attack. Otherwise, countries would be authorized in attacking
each other all over the world. Thus, even if we face the requisite credible threat from Al-Qaeda to justify self-defense, we
may not face such a threat from any state actor.
Again, with respect to the second grounds for action, a
threat to international peace and security as determined by the
Security Council that justifies the use of force might be consid64 Let me stress that I am not making any argument about what the best
reading of the legal materials would show. I merely use this as a high stakes example.
Let me stress even more strongly that although this example was provided to me by
Professor Dickinson the views and comments expressed here are mine alone.
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ered close, but not quite. The Security Council issued several
resolutions condemning the attacks and describing them as a
threat to the peace, but did not explicitly authorize the use of
military action in response against the government of Afghanistan. Is it legitimate for the United States to combine (note
that if I said amalgamate, that would have a different connotation) these two arguments into one broader argument to support our actions? Do we now have enough examples of “twofers” to have made the point that identification of this sort of
thing will contribute to better lawyering?
Linking back now to A Clearing in the Forest, we can
see why Professor Winter’s work, even without his outstanding
contributions from cognitive theory, so powerfully mo ves us
toward different ways of teaching law. The traditional curriculum takes its cues from what Winter might describe as a false
search for objectivity. We divide courses based on doctrinal
categories, thereby creating the appearance that the rules governing judicial decisions stem from certainty within the materials themselves. If there’s a torts controversy, let’s all turn to
the law of torts for a “solution.” Now, of course, people don’t
actually teach torts this way, and much of what I am suggesting already occurs in our nation’s classrooms. But students
who have spent years in courses dividing the world into categories (math, English, science, history, foreign language) cannot
help themselves in concluding that we mean to do the same
with law school courses. When we emphasize that the rules
versus standards debate, the complexities of statutory interpretation, or something more idiosyncratic such as the “twofer” problem cuts across doctrinal categories, we hear them
muttering under their breath, “That’s nice, dear, now where
are we going for dinner?” (or words to that effect).
There is, of course, something even worse than the idea
of our students looking exclusively to the legal materials in
search of concrete solutions. That would be if we spent so much
time teaching across categories that they reached the conclusion that solutions existed only in the minds of the judge. As I
explained a bit in Part I, I think A Clearing in the Forest devotes slightly too little time to the familiar ups and downs of
“policy analysis.” Judges do sometimes conclude from indeterminacy within the legal materials that their task is to fashion
a solution that will decrease costs and increase benefits, or that
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will reduce administrative burdens. An individual judge’s psychology might be very important in determining how he or she
will make such decisions. Accordingly, judicial subjectivity is
important and quite often it will be difficult to distinguish such
subjectivity from old-fashioned politics. Everyone knows for
example that judges appointed by Democrats are on the whole
more likely to worry about anti-discrimination claims while
those appointed by Republicans generally will be concerned
with employer flexibility. But no one needs three years of law
school to learn this.
The challenge as we move forward and continue to learn
from works of cognitive theory such as A Clearing in the Forest
is to determine how to teach law in a way that focuses on the
interaction between the judge and the legal materials. One way
to do so is to identify cognitive riddles, such as the “two-fer”
problem, that judges will face routinely but for which they will
have otherwise developed no formal vocabulary. Some day, after all, our students will become the judges. If we can teach
them to imagine their situation with the zest for life and for
learning reflected in A Clearing in the Forest, we will have
changed the world. Why haven’t we started?
IV.
OVERCOMING RESISTANCE: THE COGNITIVE STRUCTURE
OF DISCIPLINE
I have no conclusive answer explaining the “puzzling
persistence” of the traditional law school curriculum. The undeniable inertia that troubles all institutions certainly plays a
key role. Teachers who have succeeded along one path for
many years will be understandably reluctant to try another. A
law school that charts a course different from its peers risks
losing students and teachers who are eager to assure the mselves the stature garnered from mastering the traditional curriculum. And the sheer work involved in devising a credible
alternative curriculum is enough to deter aspiring reformers in
a world where prestige and resources flow to those who write
more rather than those who teach differently.
Colleagues sympathetic to my project caution me about
a deeper problem. They fear my emphasis on cognitive structures stresses a kind of abstract reasoning not easily accessible
to a majority of students. I am warned that students are more
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comfortable learning about the external world than they are
learning structures of thought or attending to how their categories of understanding effect what they are learning. My
whole point, however, is that there is nothing unusually abstract about conceptualizing real world problems in terms of
repeated patterns. I have tried to show that patterns of argument are familiar even to young children.65 And in Getting to
Maybe , Michael Fischl and I show how even law teachers who
champion the virtues of doctrinal categories in fact test students on their conceptual skills.66 In that book we develop a
vocabulary that foregrounds the kinds of issues tested by the
conventional exam and treats the doctrinal categories as
merely exemplary of such issues. We have been enormously
gratified by student reaction.
A Clearing in the Forest, however, has led me to develop
a new hypothesis for some of the deep-seated resistance to the
cognitive turn in law. Professor Winter talks often about the
embodied nature of human reason. He stresses the way reason
is portrayed as “cold,” “linear,” “stiff.”67 The mystery, however,
is what people would find appealing about such a rational function. Aren’t we normally drawn to the warm and fuzzy? Why
would we want our legal system to represent a “rigid” form of
reason?
Certainly the appeal of formalism takes us part of the
way there. Law may be most revered by formalists when it appears to have few rough edges and to give us no choice but to
comply. There is a rational component to our love of rules. We
hope they will protect us against decision-makers manipulating the system in undesirable ways. But there is also a spirit
for rule-following that goes beyond a grudging respect for law
as a necessary evil. What instead causes people to take pride in
rule-following?
My current assessment is that experiences where we
find ourselves preparing for hardship ground the cognitive
model for this sort of love for the law. What experience is more
counterintuitive, for example, than the “rigors” of basic trai ning or the “no pain, no gain” mantra of contemporary exercise?
Winter eloquently describes one model of law as “following the
65
Jeremy Paul, A Bedtime Story, 74 VA. L. REV . 915 (1988).
See generally Fischl & Paul, supra note 1.
67 WINTER, supra note 6, at 58.
66
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rules” as if they defined the “straight and narrow” path
through life as a journey. Suppose, however, that the deeper
model for “discipline” is that of military or physical training.
This might cause people to be suspicious of all sorts of teaching
and all sorts of law that make it appear as though we are making things up as we go along. Consider, for example, the hostility toward scholarly work that does not remain firmly embedded within a “discipline,” which is the very same word we apply
to the rigors of forcing ourselves to get to work in the first instance. If we followed our immediate physical desires, to take
another example, how could we ever fight through the pain of a
marathon run or the arduous experience of the obstacle course?
When President Bush says we have replaced the mantra of “if
it feels good, do it” with that of “let’s roll,” he is playing on
deeply held stereotypes about virtue.68 Virtue is saying no to
pleasure for the sake of greater gain. Precisely this same notion energizes, or as Professor Winter might say, “motivates”
much of the hostility we experience toward those who prize
innovation within law.
Viewing law through the lens of intense physical trai ning thus reveals another kind of resistance that one would expect to the idea that cognitive structures form the backbone of
judicial decision-making. One key insight within A Clearing in
the Forest is that there is a sense that judges are making
things up as they go along, even if, as Winter argues so well,
they are constrained in what they can persuasively imagine.
This sense of invention, one which acknowledges indeterminacy but attempts to chart it systematically, still stands
squarely against the conventional notion of the judge as merely
the object through which the law speaks. It also stands in opposition to our notion of the citizen constrained to follow the
law no matter what. Such anti-intellectualism would seem
anathema to citizens in a democracy–don’t think about what
you are doing, “just do it.” But if one thinks of law in the exercise or basic training context, the whole appeal of law as rules
begins to fall into place. The last thing one usually does during
exercise is to dwell at any given moment on whether it might
make sense to stop.
To make this metaphor stick, of course, I need a two68 George W. Bush, State of the Union Address, Jan. 29, 2002, available at
http://www.whitehouse.gov/news/releases/2002/01/20020/29-11.html.
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COGNITIVE THEORY AND THE TEACHING OF LAW
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step argument. First, I must draw an analogy between the love
of physical discipline (exercise, etc.) and the love of rules. I
think this is pretty easy. Remember my earlier example about
losing weight. Who would not feel at least somewhat comfortable describing the frozen yogurt eater who does not skip lunch
or run four miles as a cheat? If Winter is correct that many
human constructs begin with embodied knowledge, what better
metaphor exists for formal law than the dietary rules and exercise regimens we encounter in early childhood?
The second step in my argument is somewhat harder.
How does a love of rules translate into a faith in doctrinal categories as the proper method of teaching? Here I think of torts
and contracts as the intellectual equivalent of push-ups and
sit-ups. They may be good for our (intellectual) muscles but
from them we learn too little. Doctrinal categories hold out the
promise (although, again, no one actually teaches them this
way) that we can master law by learning a few basic concepts
that govern our most fundamental transactions. Compare the
similar goal of trying to build various muscle groups with repetitive but unreflective exercises. Hard work, but not necessarily hard thought, is the name of the game.
The introduction of cognitive theory to law presents an
opportunity for a new approach. Winter encourages us to think
about teaching neither as a vehicle for communicating formal
rules nor as an opportunity for examining subjective intentions. The goal instead is to devise a way of conceptualizing law
that stresses the interactions between the people who author,
interpret, apply, and enforce the law, and the law as it exists in
written form and in the social settings in which we find ourselves. My own project is to keep working hard at identifying
the cognitive structures of interaction and using these as a
means of teaching my students to think about the law differently. I don’t see them preparing for battle so much as learning
to dance.
THE SUBJECT AND OBJECT OF LAW ∗
Lawrence Joseph†
I.
In an essay that I wrote almost a decade ago, Theories
of Poetry, Theories of Law,1 I explore and compare, on the one
hand, the language of literary texts (especially poetry), and, on
the other, the language of legal texts (especially judicial
opinions). My analysis of the language of literary texts starts
with an essay by Raymond Williams, When Was Modernism? 2
Modernist writers, according to Williams, “denaturalized
language.” They broke “the allegedly prior view that language
is either a clear, transparent glass or mirror.” They also made
“abruptly apparent in the texture of narrative the problematic
status of the author and his authority.” A Modernist text is
“self-reflexive.” It “assumes the cent[er] of the public and
aesthetic stage.”3 The self (or subject, in the sense of the self as
subject) assumes an objective (a “public and aesthetic”)
dimension. The language of the subject is formed into an object
of aesthesis—an object its listener or reader will feel or
perceive.
William Carlos Williams, in a piece he wrote in the
early 1930s on Marianne Moore’s poetry, put it this way:
“Moore undertakes in her work to separate the poetry from the
subject entirely—like all the mo derns. In this she has been
∗
(1993).
©2002 Lawrence Joseph. All Rights Reserved.
† Professor of Law, St. John’s University School of Law.
1 Lawrence Joseph, Theories of Poetry, Theories of Law, 46 VAND. L. REV . 1227
2
3
Raymond Williams, When Was Modernism?, 175 NEW LEFT REV . 48 (1989).
Joseph, supra note 1, at 1229; Williams, supra note 2, at 48-50.
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rarely successful and this is important.”4 Moore cannot
completely separate her poetry from its subject matter because
it is impossible to do so. Why? Because a poet uses language.
Because language is a human act, by its very nature it includes
the voice of the person who speaks or writes it. Moore “never
falls from the place inhabited by poems.”5 The space inhabited
by the poet’s self—her subject matter and her expression—is
physical, sensual, a place both subjective and objective, formed
by the poet into an object of her expression, the poem.
Christa Wolf, quoting Anna Seghers, speaks of the
writer as “‘the curious crossing point where object becomes
subject and turns back into object.’” “The reservoir that writers
draw on in their writing,” Wolf says, “is experience.”6
Experience “mediates between objective reality and the
authorial subject.”7 Although the experience that Wolf speaks
of is “socially meaningful,” it still must take into account the
“importance of the subjective dimension.”8 Writing is a process
that runs continuously alongside life. By, through, and in her
writing, a writer becomes, and is, deeply involved with the
world. Indeed, the writer must be prepared to experience as
much “unrelenting” exposure as possible not only to the world’s
realities, but also to the changing realities both she and her
subject matter inexorably undergo. This interaction between
the writer and her material (material which includes the text
itself) forms “a new reality,” one different from “the one you
saw before,” one in which “everything is interconnected and
fluid.”9 The created text shatters expressions that are ossified,
reified—“pre-ordained by . . . ideology.”10 The individual
author’s involvement with her subject reflects truths deeper
than the invisible truths of the subjective self, or “I,” truths
deeper than the reigning “objective” truths of politics, ideology,
or economics. The most authentic expressions of subjectivity
and, or, objectivity are those shaped, formed, and given
4 Joseph, supra note 1, at 1233; WILLIAM CARLOS WILLIAMS, IMAGINATIONS
312 (1970).
5 Joseph, supra note 1, at 1233; WILLIAMS , supra note 4, at 312.
6 CHRISTA WOLF, THE FOURTH DIMENSION: INTERVIEWS WITH CHRISTA WOLF
21-24 (1988).
7 Id.
8 Id.
9 Id. at 22.
10 Joseph, supra note 1, at 1233; WOLF , supra note 6, at 21-24.
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THE SUBJECT AND OBJECT OF LAW
1025
meaning by a writer’s unrelenting imaginative intervention
into the world in which all of us live.
II.
Historically, jurisprudists, judges, and practitioners
alike assumed that legal language was objective, neutral, and
verifiable. The first theorists to challenge this orthodoxy were
the legal realists.11 The realists’ project raised the status of
legal thought from objectively presumed, formalized rules onto
a different doctrinal plane of thought (one presumed equally
objective) based not on the “transcendental nonsense” of a
“mechanical jurisprudence,” but, instead, on policies grounded
in social, political, and economic realities.12 The philosophical
or literary dimensions of legal language were not realist
concerns.13
The subjective quality of legal language did not become
a jurisprudential issue until the mid-1970s. By the early
eighties, critical writing on the objective and subjective
dimensions of legal language had become highly sophisticated,
extensive, and far-reaching. Questions about the objective
meaning of legal texts dominated American legal thought.14
In 1983, Robert Cover’s The Supreme Court, 1982
Term—Foreword: Nomos and Narrative appeared in the
Harvard Law Review.15 Cover declared: “No set of legal
institutions or prescriptions exists apart from the narratives
that locate it and give it meaning . . . .”16 Legal prescriptions,
“even when embodied in a legal text,” cannot escape their
“origin and end in experience, in the narratives that are the
trajectories plotted upon material reality by our imagination.”17
Law is a system of “tension”; it is “a bridge linking a concept of
a reality to an imagined alternative —that is, . . . a connective
11
Joseph, supra note 1, at 1234-35.
Id. at 1235; see Felix Cohen, Transcendental Nonsense and the Functional
Approach, 35 COLUM . L. REV . 809 (1935).
13 Joseph, supra note 1, at 1235; see STEVEN L. WINTER, A CLEARING IN THE
FOREST: LAW , LIFE , AND MIND 2, 286 (2001).
14 Joseph, supra note 1, at 1235-41.
15 Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and
Narrative, 97 HARV . L. REV . 4 (1983).
16 Id. at 4 n.3.
17 Id. at 5.
12
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between two states of affairs, both of which can be represented
in their normative significance only through the devices of
narrative.”18 Cover’s vision of the language of law as
imaginatively plotted and projected onto material reality by
those both individually and collectively involved in the legal
system was monumental, placing the subjective and objective
complexities of legal language, and law itself, into full critical
play.
Two years after Nomos and Narrative, Robin West saw
that a new strain of legal criticism had arisen, one “utopian,”
“visionary,” or “aesthetic” in character.19 But West also pointed
out that the first person narratives employed by the authors of
the new criticism were expressed in a language quite different
from the language required of judges, legislators, and
practicing lawyers. Those who write legal criticism “do not
decide cases, vote on bills, or undertake the representation of
clients and hence the furtherance of those clients’ interest.”
Legal theorists do not make law.20 Although, as West says,
“[j]udges, legislators, and lawyers” cannot escape their
“personal histories when formulating a theory of human nature
and social interaction upon which to ground their work,” they
must, if they are “acting responsibly, . . . keep these narrative
instincts separate from the act of lawmaking, or at least weigh
them against other institutional concerns.”21 The making and
practicing of law requires, at some point, some process of
objectification.
III.
One strategy behind Theories of Poetry, Theories of Law
was to tackle the notion of legal objectivity by an aesthetic
analysis of language. I focused on the aesthetics of poetry
because poetry—the most condensed form of literary verbal
expression—contains virtually every dimension of language.
The common ground that I discovered between law and
literature seems simple: Both involve issues of language, as
18
Id. at 9.
Robin West, Jurisprudence as Narrative: An Aesthetic Analysis of
Modern Legal Theory, 60 N.Y.U. L. REV . 145, 203 (1985).
20 Id. at 211.
21 Id.
19
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THE SUBJECT AND OBJECT OF LAW
1027
well as issues of how language is, or ought to be, expressed. I
found, however, the dissimilarities between law and literature
equally critical. Terry Eagleton has spoken of what he calls the
“true sublime” in writing, the “infinite, inexhaustible,
heterogeneity of . . . [a] sensuous, non-functional delight in
concrete particularity [that flows] from the dismantling of
abstract rational exchange -value.”22 In a post-Modernist, postMarxist world, a sense remains that certain forms of
imaginative expression profoundly resist being completely
reified by processes of commodification. “[W]e have to find a
way to resist . . . commodification in the letter of the text,”
Eagleton says, in the same way, for example, that “Keats found
a way of resisting commodification by sensuousness, by a kind
of shameless overlaying of the language which brought down
on [Keats’] head charges of cockney vulgarity from the
guardians of literary consciousness.”23
Is it possible for legal language to resist
commodification in the same way that the sensuous language
of, let’s say, a poem by Emily Dickinson, resists it? Forms of
literature do not reify; what, in fact, arguably makes a form of
verbal expression literature is that literature is language that
resists reification because of how it is expressed. However,
unlike the language of literature, the language of those who
make and practice law (the language of judges, legislators, and
practicing lawyers) is, at a definite point and to a great extent,
socially, economically, politically, and institutionally reified
into forms of language to be known and obeyed, executed and
enforced, bought and sold. Expressions of law embody, and are
embodied in—integrate and are integrally a part of—the
practice of violence, the allocation of power, the distribution of
money, and the dispensing of privilege (which in turn bestows
wealth). Law, like literature, is a language game, but, unlike
literature, the object of the game is not to express forms of
sensuousness or feeling. The language of law embodies
violence, power, and money. It is a language game complexly
unique both in its expressions and in the consequences of its
expressions.
22 Terry Eagleton, Action in the Present: An Interview with Terry Eagleton, in
POLYGRAPH: VERSIONS OF THE PRESENT: MODERNISM /POSTMODERNISM 30, 34 (Henry
Schwarz & Richard Dienst eds., 1989).
23 Id. at 35-36.
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IV.
At the heart of Steven Winter’s magnus opus, A
Clearing in the Forest: Law, Life, and Mind, is a radical
insight: Law, Winter says, exists within a complex reflexive
relationship between experience, imagination, and meaning.24
There is no law without the reflexive, imaginative relationship
of its participants, both individually and collectively. Law, in
concept and in reality, is neither more nor less than the
language of our individual and collective contributions to what
law means.25
Because law is expressed in language, and because
language is in part subjective, the language of law is in part
subjective. The language of law requires a speaker, or
speakers, a voice, or voices—the human and social experience
of an “I” or a “we.” Law’s language is, however, also in part
objective: Subjective expression is variously structured by the
world that the speaker inhabits, shaped by metaphorical
“objects,” formulations of humanness deeply embodied in the
world that gives rise to their expression. These formulations
are objectified by the expectations of legal participants and by
their apprehension of the social world, and through the
expression of legal rules which, of course, take shape in
language. This objectification of legal thought in language
necessitates some degree of reification. However (and it is an
important however), because this reification requires thinking,
speaking subjects—and because the law must be spoken,
written, or enacted by a person or persons—the forms, or
reifications,
of
legal
language
are,
in
essence,
phenomenological.
A Clearing in the Forest exposes and rejects reifications
of complex social practices and understandings which, as
reifications, fail to take into account the deeply physical and
experiential, or phenomeno logical, realities of meaning. Law,
which requires meaning, is, as Winter demonstrates, created
by and within complex interactions of mind, body, and the
world. These interactions come into existence through ongoing,
deepening, imaginative expressions of language. Even the most
24
25
WINTER, supra note 13, at 215.
Id. at 214-15, 346-51.
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THE SUBJECT AND OBJECT OF LAW
1029
shopworn of jurisprudential examples, H.L.A. Hart’s “no
vehicles in the park,” becomes for Winter an extended
meditation on the cultural history of the park as conceived by
republican theorists, and transformed by successive waves of
working class park-goers and Progressive planners.26 Law, as it
is today, is a distillation of history, culture, and social conflict
critically deficient in its expression, a faded residue of a rich,
human life-world—a world toward which the law merely
gestures. The condensed verbal form of the legal rule—unlike
the condensed emotional sensuousness of a poem—expresses
less than it knows, yet means more than it can express. Legal
thought that recognizes this can get at, if not transcendental
truths, then at least those truths that arise out of the
unrelenting exposure of the mind and imagination to the
objective realities of law. Or, to paraphrase a passage from
Wallace Stevens’ poem “Chocoura To Its Neighbors” (quoted by
Winter27): To speak law, as lawyers, humanly, from the height
or from the depth of human things, that is law’s acutest speech.
V.
Drame, a book of prose by Phillipe Sollers, is, in its
English translation Event, followed by an essay, Drame, Poeme,
Roman (Event, Poem, Novel), by Roland Barthes.28 In a
footnote, Barthes observes:
It is in fact possible to read Event like a very beautiful poem, the
26
Id. at 201-06, 263-66.
Id. at xvii. The passage from Chocoura To Its Neighbors that Winter quotes
is: “To say more than human things with human voice,/ That cannot be; to say human
things with more/ Than human voice, that, also, cannot be;/ To speak humanly from
the height or from the depth/ Of human things/ that is acutest speech.” Id. (quoting
Wallace Stevens, Chocoura to its Neighbors, in THE COLLECTED POEMS OF WALLACE
STEVENS 300 (1954)).
28 PHILLIPE SOLLERS , DRAME (Editions de Seuil, 1965); PHILLIPE SOLLERS ,
EVENT (Bruce Benderson & Ursule Mollinaro trans., 1986) (with an essay by Roland
Barthes).
27
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indistinct celebration of language and of the woman beloved, the
path of one toward the other, like Dante’s Vita Nova in another era:
Event may be the infinite metaphor of “I love you,” which is the
single transformation found in all poetry. 29
“Remember,” Winter says in A Clearing in the Forest, “that
metaphor is a conceptual mapping from a source domain to a
target domain that preserves inferential structure.”30 Put in
Winter’s terms, Barthes’ insight is that “I love you” is one of
poetry’s deepest sources; Event essentially is a “conceptual
mapping” of “I love you” expressed (or inferentially structured)
within the projected domain of the book itself. The book is the
infinite metaphor: The metaphor is the endlessly profound
cognitive mapping, by, in, and through expression, of the
primary human issue of “I love you.” Metaphor is the
transformation through expression of intrinsically human
domains.
VI.
In a recent essay, Taking Moral Argument Seriously,
Robin West takes on what she calls Ronald Dworkin’s
antipositivist conception of law. Dworkin’s jurisprudence is,
West says, moral:31 For Dworkin, “[t]he legal actor is loyal to
law, principally understood in light of a conception of justice,
not positive law as authoritatively pronounced by a court or
legislative body. Legal argument, in turn, is the practice that
gives daily voice and substance to this distinctively moral
loyalty.”32 The jurisprudential function of the moral principles
identified by Dworkin render the law not only determinate, but
also substantively just. Yet, West maintains, “both Dworkin
and his critics may be wrong to think that justice requires such
a high degree of determinacy.”33 If law incorporates moral
principles of justice, then the lawyer, as well as the judge,
while holding and articulating the law, is, essentially, an
architect of justice and of a just society, as well as being an
29
Id. at 87.
WINTER, supra note 13, at 31.
31 Robin West, Taking Moral Arguments Seriously, 74 CHI . KENT L. REV . 499
30
(1999).
32
33
Id. at 501.
Id.
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THE SUBJECT AND OBJECT OF LAW
1031
enforcer of order.34
If, as West says, law incorporates moral principles of
justice, then the question “what is morally just?” is—like “I
love you” in poetry—an essential source domain of law. From it
emanate conceptually mapped metaphors of what moral justice
means. The domain of metaphors—the domain of expressions
of what is moral and just—is structured both by its deep,
human source and by the imaginative depth of its expression.
However, as West continues, in American law today “we have
no developed account,” no developed expression, of
what even the narrow virtue of legal justice might be or of what
traits of character it requires, what view of the person it entails, or
what kind of society might best facilitate its dispensation. . . . [W]e
have no developed or competing understandings of the substantive
legal consequences of various cognitions of substantive, social, or
political justice.35
In American law today, there is no recognition of the
cognitive fact that law must rest on our conceptual mapping
and expression of what is morally just. It is therefore
incumbent on legal educators—if they are serious in their
pedagogical and scholarly missions—to “develop, debate, sift
through, improve upon, dwell on, preserve, learn, and teach, as
an integral part of law, competing and credible theories of
justice.”36 The world of law, of the lawyer and of the law
scholar, should be a world where the implications of a moral
conception of justice can be self-consciously traced and
expressed. As West observes:
[I]t is hard to think of any group, professional or otherwise, other
than lawyers, with the expertise and the professional inclination to
work through in a detailed way the implications of various
understandings of justice for various doctrinal areas of law. There is
no reason, in short, for lawyers not to at least acknowledge the
subject of justice as peculiarly within their province. It is a curiosity,
and maybe even a scandal, that lawyers in this century have not
done so.37
The legal profession and legal academy, therefore, not only
34
Id. at 502.
Id. at 503.
36 West, supra note 31, at 502.
37 Id. at 505.
35
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ought to, but must, take seriously the project of objectified
moral argument.38
What lawyers, in other words, must do is develop,
debate, sift through, improve upon, dwell on, preserve, learn,
and teach, through individual and collectivized expressions,
the moral bases of justice. “Our refusal to do so over the last
thirty years,” West declares, “has left us with unpalatable
alternatives[:]”
[T]he nihilist insistence on the left that all there is in the social
world worth pondering is power; the libertarian insistence on the
right that all that can be justified is the satisfaction through market
mechanisms of desire; and the fundamentalist and generally
religious-based claim that the authority for moral truth must come
from not just extra-legal but extra-human sources. These stances
cannot possibly yield theories of justice, or moral truth, sufficient to
ground morally compelling legal arguments. We know this and as a
result have eschewed the project of justice altogether. As a result we
have created an academic and professional world void of any sense of
virtue and even ignorant of the competing possible conceptions of the
virtue of justice that at least in the eyes of others ought to be the
defining virtue of the legal profession and legal academy both. 39
Or, as Winter might say, our present theoretical
orthodoxies, by ignoring the deeply human issues of what is
moral and just, fail in meaningful ways to connect subject and
object. They present no alternatives except, on the one hand,
those theories of external —objective —constraint, or, on the
other, theories bottomed on pure, unrestrained subjectivity.40
Our present theoretical orthodoxies fail to explore the cognitive
dimensions of language and experience by which law is
sustained—fail to build for us a bridge across which to connect
the subjective and objective meanings of justice and morality.
Or, as West, echoing Winter, might say, our present theoretical
orthodoxies fail to dereify our understandings of justice and
moral truth, fail to show us how the legal and moral language
of justice is “constituted and sustained. . . in the forms of life
that give meaning to our categories, concepts, and values,”41—
fail to reconcile our values and contingencies in a way that
38
Id. at 515.
Id.
40 WINTER, supra note 13, at 11, 104-05, 132-33, 353.
41 Id. at 332.
39
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THE SUBJECT AND OBJECT OF LAW
1033
embodies a “true humanism”42 which “we ourselves have
made.”43 The subject and object of law—both in practice and in
theory—is found in our language and our expressions of moral
justice, expressions that arise out of our minds and our
imaginations, from our senses and within our experiences,
within the unrelenting pressures of a world of money and
violence and power which we, as lawyers, choose to inhabit.
42 Steven L. Winter, Human Values in a Postmodern World, 6 Y ALE J. L. &
HUMANITIES 233, 245 (1994) (“What is perhaps proper to our time is to disassociate
humanism from the idea of a humanity fully guaranteed by natural law, and not only
reconcile consciousness of human values and consciousness of the infrastructures
which keep them in existence, but to insist on their inseparability.”) (quoting MAURICE
MERLEAU-PONTY, SIGNS (Richard C. McCleary trans., 1964)).
43 WINTER, supra note 13, at 357.
GOVERNING THROUGH CRIME METAPHORS∗
Jonathan Simon†
INTRODUCTION
In an era when historic ambitions to fuse law and the
social sciences have so often been frustrated,1 I believe we
should approach cognitive science with two impulses. First, we
should have a great deal of skepticism toward the “normal science” posture of this field.2 Second, we should borrow as many
of its considerable insights as possible. The publication of Steven Winter’s A Clearing in the Forest: Law, Life, and Mind
provides those of us in legal studies with a windfall in both respects.3 Winter, who came to cognitive science through reflection on his own experience in litigation, harbors few of the
normal science longings of the discipline. At the same time, he
reports a broad range of the findings of the cognitive science
research community and does so in the context of a critical
reading of twentieth century American jurisprudence.
∗
©2002 Jonathan Simon. All Rights Reserved.
† Jonathan Simon is Professor of Law at the University of Miami Law School.
He is currently completing a book on the role of crime in the restructuring of American
governance since the 1960s. Presented at “Cognitive Legal Studies: Categorization and
Imagination in the Mind of the Law,” Brooklyn Law School, October 26-27, 2001
1 Jonathan Simon, Law after Society, 24 LAW & SOCIAL INQUIRY 143 (1999)
2 Cognitive science shares the unfortunate trait with political science that it
seems to be begging its scientific status every time it speaks its name, a disability not
shared by economics or physics. See THOMAS K UHN, THE STRUCTURE OF SCIENTIFIC
REVOLUTIONS 10 (1962).
3 STEVEN L. WINTER, A CLEARING IN THE FOREST: LAW , LIFE , AND MIND
(2001).
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Winter’s cognitive reading of law can be usefully applied
beyond the classic jurisprudential territory of making sense of
judicial interpretation. In recent work, I have argued that
crime is becoming a model “problem” for governance in American institutions.4 This is more than a matter of election rhetoric, although that is telling in a democracy. Crime and fear of
crime have become privileged terms by which the needs of individuals and communities are represented. We can speak of
crime, in this sense, as a metaphor, a construct from one domain, the law of public wrongs, that is transferred into a wide
array of other domains and makes visible new truths about
those domains. As law and society scholars have shown, law
frequently transfers to popular discourse and to the selfinterpreting activity of non-legally trained people.5 Governing
through crime points to a more specific phenomena, the metaphoric use of crime by people with the power and responsibility
to help narrate the uses of power for themselves, their agents,
and their subjects.6
Part I of this Article draws on cognitive science to explore the role of metaphors in the domain of political reason.
Part II then takes up a specific example of the use of metaphor
in the law making process, President Johnson’s statement issued along with his signing of the Omnibus Crime Control and
Safe Streets Act of 1968,7 the law that began more than thirty
years of federal legislation. Part III draws a political inference
from cognitive science and suggests we move from metaphors
revolving around crime to ones involving the fight against cancer. If the productivity of certain ideas and rationalities for law
and governance is rooted in their cognitive
effectiveness, as Winter argues, opposition must marshal its
4 See generally Jonathan Simon, Governing Through Crime, in THE CRIME
CONUNDRUM : ESSAYS ON CRIMINAL JUSTICE 171-90 (George Fisher & Lawrence Friedman eds., 1997); Jonathan Simon, Megan’s Law: Crime and Democracy in Late Modern
America, 25 LAW & SOCIAL INQUIRY 1111, 1113 (2000).
5 See generally PATRICIA EWICK & SUSAN S. SILBEY, THE COMMON PLACE OF
LAW : STUDIES FROM EVERYDAY LIFE (1998).
6 On organizational narratives see CHARLES BRIGHT, THE POWERS THAT
PUNISH: PRISON AND POLITICS IN THE ERA OF THE “BIG HOUSE ,” 1920-1955 at 15 (1996);
JONATHAN SIMON, POOR DISCIPLINE : PAROLE AND THE SOCIAL CONTROL OF THE
UNDERCLASS 1890-1900 at 9 (1993).
7 Pub. L. No. 90-351, § 502, 82 Stat. 197 (1968).
2002]
GOVERNING THROUGH CRIME METAPHORS
1037
own cognitive strategies.8
I.
GOVERNING THROUGH CRIME AND ITS COGNITIVE
DIMENSION
In his deeply insightful book, Moral Politics,9 pioneer
cognitive scientist George Lakoff uses crime discourse as one of
the clearest examples of his claim that underlying contemporary American politics are competing metaphors of the nation
as family. Conservative politics is animated by a metaphor of
the nation as a family with a stern and disciplinary father as
its leader.10 To the political advantage of conservatives, they
have clearly identified the centrality of this metaphor and
made it an explicit part of their public appeal.11 Liberal politics, although it tends to hide its moral commitments, is no less
rooted in a metaphor of the nation as a nurturing family with a
nurturing parent at its head.
Lakoff’s model helpfully explains why crime has loomed
so large, albeit in slightly different form, to both conservatives
and liberals. Crime figures largely in conservative politics for
several powerful reasons that mark what cognitive scientists
would call “radial categories.”12 First, it exemplifies the disciplinary father’s fundamental claim to power and the necessity
of reproducing it even with violence. Without his coercive capacity, the stern father as leader implies that the inherently
sinful pull of undisciplined human nature will lead the weaker
members of the family/nation into crime and violence of their
own more vulnerable parts (children, women, minorities, the
poor). Not surprisingly, conservatives have offered the punishment of crime as the main form of domestic government and
made their promise to punish crime their prime appeal.
8
G EORGE LAKOFF, MORAL POLITICS : WHAT CONSERVATIVES K NOW THAT
LIBERALS DON’T (1996).
9 Id.
10 Id. at 33.
11 Id. at 19.
12 Id. at 7-8; WINTER, supra note 3, at 72-74. As Winter lays out in some detail,
radial categories map the way meaning can be extended from the central examples of
the type (e.g., cardinal or blue jay for bird) to a whole range of quite different examples
that are also grouped within the same broad category (for birds, hawks, penguins,
ostriches). As a larger model of meaning, radial categories represent an alternative
theory to the dominant rationalist approach in Western science and philosophy.
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Second, the substantive rules of criminal law (at least
those noticed by popular culture) exemplify the simple commands that form the disciplinary father’s preferred technology
of power. The strict father speaks in the language of rules
backed by the threat of punishment. Conservative majorities in
Congress and in the state legislatures have likewise made new
criminal laws their preferred response to social problems while
attacking regulation and private litigation as oppressive and
counter-productive responses.
Third, the act of punishing is understood to be the privilege and responsibility of the father and is critical to his rule as
father. Crime, in this sense, has a certain Durkheimian inevitability.13 If the strict father is going to be able to exercise the
power to punish, and in so doing reproduce that power, there
must be crime to discover and confront. However, one can no
longer be as confident as Durkheim that crime and punishment
will produce a common emotional response; one that gives substance to “society” as a collective moral sensibility.
Liberals have often seemed to be playing catch up on
crime and punishment, but on Lakoff’s account this is an illusion driven by their own loss of contact with the moral and
family dimension of politics.14 In fact, the war on crime metaphor was pushed first by the Johnson Administration when it
sought to implement a federal improvement program for local
law enforcement along the lines of the Great Society model of
social science expertise and liberal reform objectives. Throughout the 1970s and 1980s, liberal members of Congress and the
state legislatures supported and initiated crime legislation.15
Following Lakoff, one can see the nurturing family in
the policies most avidly advanced by liberals in the crime field
including gun control, strict treatment of domestic and child
abuse, recognition of hate crimes, and new quasi crimes like
sexual harassment in the work place. Crime is an issue for the
nurturing family, not as an inevitable war between good and
evil that must go on in each household (as it is for conserva13
EMILE DURKHEIM , THE DIVISION OF LABOR IN SOCIETY 63 (1984).
LAKOFF, supra note 8, at 18.
15 Edward Kennedy’s co-sponsorship with Strom Thurmond of the legislation
that authorized the shift to sentencing guidelines in the federal courts is a case in
point. See CHRISTIAN PARENTI, LOCK DOWN AMERICA: POLICE AND PRISONS IN THE AGE
OF CRISIS 50 (1999).
14
2002]
GOVERNING THROUGH CRIME METAPHORS
1039
tives), but as a threat that late modern conditions pose to the
actual safety of the family in their homes, in their schools, and
in their neighborhoods.16 Because of this focus, liberals have
tended to be somewhat more supportive of police (perceived as
capable of providing preventive control) and somewhat less
supportive of punishment (especially the death penalty). At the
same time, liberals have been enthusiastic about moving the
policing of crime into the family, the work place, and the
school.
Winter’s A Clearing in the Forest will undoubtedly compel legal scholars to take stock of the success of cognitive science over the last three decades in producing a rigorous science
that at the same time is not anchored in classic rationalist
epistemology. Within cognitive science it may serve the purpose of historicizing a mode of analysis that (like most structuralisms) tends to celebrate the stability of determinants
rather than change.17 Almost all of Winter’s examples are focused on legal change and the role of cognitive processes in
moving legal rules through a process of paradigm shift. Unlike
the literary reading of the metaphor, Winter’s cognitive analysis shows metaphors not merely as signs that a new set of intentions is reshaping the law, but as tools of change itself,
structures that do the work of legal reasoning.
In the remainder of this Article, I draw on both Lakoff’s
reading of crime in moral politics and Winter’s studies of the
role of cognition in legal reasoning to examine the role of crime
as a governmental metaphor. Legal reasoning relies upon
metaphors not simply as adornment to judgments but as ways
of providing a circuitry of knowledge and power that bring fact
and doctrine into a productive relationship. In a similar way,
crime today functions as the principal metaphor of political
reason.
Crime in this regard frames the broader role of regula16 See generally DAVID G ARLAND, THE CULTURE OF CONTROL : CRIME AND
SOCIAL O RDER IN CONTEMPORARY SOCIETY (2000).
17 Lakoff’s reading of politics, for example, focuses us on the compelling force
of moral identity in building political majorities. But from this perspective it is all too
easy to see the victories of the New Right in 1980, 1984, 1988, and 1994 as inevitable
products of the deep cultural conservatism of the white majority in America. Yet what
then needs explaining is the success of the New Deal model of political solidarity in the
face of a cultural morality even less eroded by the sheer velocity of change in the information age.
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tory power. Consider one of Winter’s major examples, Justice
Holmes’ famous “free trade in ideas” metaphor in his Abrams v.
United States18 dissent. In his majority opinion for the Supreme Court in Schenck v. United States,19 Holmes endorsed a
far less protective standard for subversive speech, analogizing
it to falsely shouting fire in a crowded theater. This is a powerful example for Winter because it is so obvious once he points
to it that Holmes has relied on striking metaphors in both
opinions. In Schenck, the source domain is behavior likely to
panic people in a setting where that could easily become very
dangerous or even lethal.20 The target domain of subversive
speech is mapped in a way that makes government interve ntion seem natural and valid. In Abrams, Holmes drew his
source from economic exchange to map the target domain of
subversive speech. In this new setting, government interve ntion would be presumptively invalid and unnecessary.21
The metaphor in Schenck is really a metaphor of crime.
Falsely yelling fire in a crowded theater would almost certainly
have been treated as a serious crime (at a time when deadly
fires in such places were all too common), perhaps even murder
if deaths occurred. Moreover, the example could almost have
come from a case or hornbook discussing the problem of “abandoned and malignant heart” murder, a common law theory of
murder liability premised on the moral culpability of one who
deliberately takes a huge risk to the lives of others for no socially redeeming purpose.
The marketplace of ideas metaphor, in contrast, offers a
picture of speech operating in a very different governmental
context, not crime but business. If speech is more like a business transaction than like a violent crime, the problem of governance remains but is placed in a very different position.
What cognitive science calls conceptual metaphors22
18
271.
19
250 U.S. 616, 630 (1919) (Holmes, J., dissenting); WINTER, supra note 3, at
249 U.S. 47, 52 (1919); WINTER, supra note 3, at 270.
Schenck, 249 U.S. at 52.
21 Winter argues that the free trade in ideas metaphor is less a creative tour
de force than a quite conventional example of a conduit metaphor, i.e., one where ideas
are objects inside a mind that functions as a container. Winter argues that the metaphor does much of the doctrinal work of the new Holmes test, bringing over from the
source domain of economic activity “a systematic set of entailments that supersedes the
limitations of the older free speech model.” WINTER, supra note 3, at 272.
22 Id. at 13.
20
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GOVERNING THROUGH CRIME METAPHORS
1041
form the building blocks of more specialized and culturally specific devices.
Unlike literary metaphors, conceptual metaphors have
their most significant effects not in the initial transplant of an
image from one domain to another, but in the entailments that
the metaphor produces. If life is like a journey, there must be
obstacles, vehicles, and objectives.23 If speech is like a marketplace of ideas, then speakers are like entrepreneurs, the public
are consumers, and the role of the government is both to assure
the health of the market and the well being of consumers faced
with inordinately powerful producers.24 For Winter’s analysis
of law, the key lies in “idealized cognitive models” deployed in
legal reasoning. These models, like the marketplace of ideas, do
more than invoke a literary experience. Cognitive or conceptual
metaphors provide a map through which people can know and
act on, for example, unruly speech.25 Crime functions as something similar which we might simply call governmental metaphors, that is, those metaphors that work not simply to transplant a series of meanings from one domain to another but
through that and other processes to transmit forms of power
and knowledge from one domain into another.
Governing through crime metaphors may likewise have
had largely political objectives but its entailments alter the
way we know and act on the nation as a body politic. Perhaps
its most important entailment has been the construction of the
crime victim as an idealized citizen subject. Much follows from
this in a representative democracy with a popularly elected
law-making body. Although victims as such are rarely me ntioned in the text of the Omnibus Crime Control and Safe
Streets Act, in comparison to its more recent descendants, the
1968 law initiated a circuitry of knowledge and power that has
made the crime victim one of the most visible faces of public
need before Congress and state legislatures. In a real sense,
the victims who have come to dominate the narrative of more
recent crime legislation were produced as governmental subjects by the 1968 law and its entailments.
If the citizen is a victim, than the task of government is
23
Id. at 16.
Id. at 272.
25 Winter contrasts this approach to metaphor to the influential theory of Donald Davidson. See WINTER, supra note 3, at 55.
24
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to fight crime. The nation is territorialized as a street in which
crime takes place. The ideal forms of the stat e become the
police officer and the prison where the substantive rationality
of punishing crime is allowed to have its full sway.
II.
REIMAGINING THE NATION THROUGH CRIME:
METAPHORS OF THE SAFE STREETS ACT
This act will help to lift the stain of crime and the shadow of fear
from the streets of our communities.
-President Lyndon Johnson, June 19, 1968.26
Crime victims are only the most recent and currently
most dominant of a whole panoply of idealized political subjects
that have entered (and more rarely left) the stage of American
political development. At earlier points in the history of the
United States, idealized political subjects, such as the yeoman
farmer, the freed slave, the industrial worker, and the biologically vulnerable consumer, helped not only in assembling enduring political majorities but in imagining the proper scope
and approach of government. At various times in our nation’s
history, each of these subjects has been the focus of great
waves of both federal and state legislation. Yeomen farmers,
for example, were the idealized subjects at the center of a series of laws that Congress enacted over the last two-thirds of
the nineteenth century dealing with the settling of public lands
in the territories of the United States.27
These subjects were more than ideological fictions. Each
idealized political subject included real features of the American population that were being highlighted by historical conditions (changing technologies, political regimes, etc.). They also
represented projects of social construction. Each ideal identifies
general features of a population that make it capable of the
democratic ideal of self governing, but the other side of these
virtues are vulnerabilities that require governmental re26 Lyndon B. Johnson, Statement by the President Upon Signing the Omnibus
Crime Control and Safe Streets Act of 1968, 1968 PUB. PAPERS 725, 727 (June 19,
1968) [hereinafter Johnson Statement].
27 See generally MARION CLAWSON, THE LAND SYSTEM OF THE UNITED STATES :
AN INTRODUCTION TO THE HISTORY AND PRACTICE OF LAND USE AND LAND TENURE
(1968).
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GOVERNING THROUGH CRIME METAPHORS
1043
sponses.
Today it is in the experience of criminal victimization
and (much more commonly) the imagined possibility of victimization that the political community and its governable interests are being redefined in law making. It is the outlines of this
victim subject, projected by ad vocacy groups, the media, and
law itself, that frames the purposes of legislation and the features of the subject that this legislation must take into account.
Indeed, to the extent that earlier ideals seek to recuperate
their political currency, it is through a narrative representation of them in crime victim mode.
Thus, in an era when civil rights is little attended to by
Congress, hate crimes have emerged as the dominant focus for
those lobbyists and legislators loyal to that cause.28 At a time
when regulation of consumer industries is increasingly voluntary, laws creating new kinds of safety crimes, e.g., driving
while speaking on a hand-held cellular phone, are growing.
Crime legislation is part of a dialog whose main interlocutor is the crime victim and those who speak for victims.
The following quote comes from a speech delivered by former
Attorney General Janet Reno to a meeting of victim’s rights
advocates, but most of our recent Attorney Generals and many
other politicians have said remarkably similar things.
I draw most of my strength from victims for they represent America
to me: people who will not be put down, people who will not be defeated, people who will rise again and again for what is right . . . you
are my heroes and heroines. You are but little lower than the angels.29
Notice that one could substitute the words “yeomen farmers,”
“freedmen,” or “industrial workers” without any strain. This is
the best description possible of what it is to perceive an “idealized political subject.”
As with the great pieces of Reconstruction and New
28 Jeffrey Gettleman, Ex-Klansman Convicted in 1963 Alabama Church Blast;
Crime: Life Term is Given in Bombing that Killed Four Black Girls and Galvanized the
Civil Rights Movement, L.A. TIMES, May 2, 2001, at A1; Marlon Manuel, 1963 Birmingham Church Bombing; Guilty on All Counts, ATLANTA J. & CONST., May 2, 2001,
at A1.
29 Bruce Shapiro, Victims and Vengeance: Why the Victims’ Rights Amendment
is a Bad Idea, 264 THE NATION, Feb. 19, 1997, at 11.
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Deal legislation, the Safe Streets Act merits recognition at
three levels: as a solidifying political victory for a new governing coalition in American politics; as a critical growth point for
a set of specialize d knowledges and technologies of power about
governing crime, i.e., crime, criminals, and victims, but also
law enforcement, courts, and correctional agencies; and as defining a new set of privileged subjects for government, including victims, state law enforcement, courts, and correctional
systems. Such a subject embodies the major struggles that endanger the freedom and well-being of all citizens. Not surprisingly, once a political culture has adopted yeomen farmers, industrial workers, or crime victims as ideal political subjects,
one would expect to find them valorized in popular culture,
pedagogy, and certainly political speeches as heroes or even
quasi-divine figures.
A.
The Omnibus Crime Control and Safe Streets Act
The dominance of crime legislation over the imagination
of lawmakers began with the adoption of the Omnibus Crime
Control and Safe Streets Act of 1968.30 The Act was enacted
June 6, 1968 with only four senators and seventeen representatives voting against it.31 The “omnibus” legislation, as it selfadvertised, consisted of several distinct elements, although
with the presumption that all would contribute to the substantive titles of “crime control” and “safe streets.”
1. Title I. Federal Funding for Law Enforcement Research & Development
Title I was the core of the original Johnson Administration bill, first introduced in 1967, which envisioned a major
investment of federal dollars in state and local law
enforcement.32 This section embodied Johnson’s strategy for
handling the crime issue that he had already seen in the cam30
Act].
31
Pub. L. No. 90-351, §§ 201-406, 82 Stat. 197 (1968) [hereinafter Safe Streets
RICHARD HARRIS, THE FEAR OF CRIME 14 (1969).
Safe Streets Act §§ 201-406. For Johnson’s thinking about the funding part
of the Act see, ROBERT DALLEK, FLAWED G IANT: LYNDON JOHNSON AND HIS TIMES
1961-1973 at 409 (1998).
32
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GOVERNING THROUGH CRIME METAPHORS
1045
paign of his 1964 opponent, Senator Barry Goldwater. The bill
would provide funds for new equipment, new training, and
even some new law enforcement officers, but tied to an agenda
of substantive reform and improvement in policing, courts, and
corrections.
Title I retained the Johnson Administration’s objective
of funding, but structured it through a form of “revenue sharing” that diluted the federal role in setting the agenda. Title I
funds would be available directly to state and federal law enforcement. Governors and mayors would have direct roles in
seeking and distributing funds. Rather than directing reform,
the federal government would act as a grant reviewer, making
sure that the proposals conformed to formal features of planning and research driven strategies. The final bill authorized
over 400 million dollars in federal revenue, a number to be
multiplied many times over by subsequent legislation.33
2. Title II. Repudiating the Warren Court’s Criminal
Procedure Jurisprudence
The most controversial provisions of the Safe Streets
Act were those establishing rules of evidence for criminal trials
in federal court that clearly conflicted with Supreme Court doctrine on confessions.34 The most famous provision allowed
statements of a suspect in custody to be admitted at trial even
if taken without the benefit of explicit warnings such as those
required by Miranda v. Arizona ,35 so long as the trial
judge
deemed them “voluntary.”36 The language of Title II was the
product of a coalition of conservatives from both parties. Many
of them had long resented the Supreme Court’s interference in
school segregation and in law enforcement. Liberals in both
parties opposed this part of the bill as unconstitutional. The
33
Safe Streets Act § 502.
Ironically, these provisions have proved largely immaterial. Starting with
the Ford administration, it has been the policy of the Department of Justice to ignore
Title II. When a portion of the law was finally tested by the U.S. Supreme Court in
2000, it was at the prompting of private public interest lawyers and an ultraconservative appeals court. See Dickerson v. United States, 530 U.S. 428 (2000).
35 348 U.S. 436 (1966).
36 The statute did allow that trial judges should consider such warnings or the
failure to deliver them in evaluating voluntariness.
34
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new standard, if read literally, had the effect of mandating federal courts to ignore several new criteria that the Supreme
Court had established on top of the traditional voluntariness
test, a position ultimately validated by the Court itself in
2000. 37 President Johnson’s dislike for this aspect of the law
led him to veto the version of it passed by Congress in 1967.
But the increasing violence of 1968, surging crime, riots, and
assassinations, compelled him to accept what he acknowledged
to be a flawed bill.
3. Title III. Wiretapping and Eavesdropping
Some states, like New York, permitted wiretapping but
the Federal Communications Act of 1934 made it illegal to intercept telephone communication.38 Since 1934 the Attorney
Generals had sought, without success, permission from Congress to do wiretapping in criminal cases.39 In the meantime
the FBI operated on a tacit understanding that this did not
apply to national security.40 The Kennedy Administration introduced several bills calling for authorization of wiretapping,
but with increasing safeguards.41 President Johnson’s Attorney
General, Ramsey Clark, became the first Attorney General to
oppose wiretapping, a position on which he influenced the
President.42 In his 1967 State of the Union address, President
Johnson called for the outlawing of all public and private wiretapping except for the narrow needs of national security.43 In
its original proposals for a major crime bill in 1967, the Johnson administration had sought legislation that would have
used federal law to place restrictions on state and local use of
37 Dickerson v. United States, 530 U.S. 428 (2000). The law also purported to
establish by statute that a suspect could be held for at least six hours by the police
before being brought to an arraignment before a judge without jeopardizing any confession taken from the suspect during that time due to simply to failure to bring the
suspect to arraignment more promptly.
38 48 Stat. 1103 (1934); see also VICTOR S. NAVASKY, KENNEDY JUSTICE 72
(1971).
39 Navasky, supra note 38, at 72.
40 Id.
41 Id. at 75.
42 DAVID HARRIS, JUSTICE : THE CRISIS OF LAW , O RDER AND FREEDOM IN
AMERICA 38 (1970).
43 Id.
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GOVERNING THROUGH CRIME METAPHORS
1047
wiretaps.44 The legislation the President signed in June of 1968
for the first time authorized state and federal law enforcement
to seek wiretap warrants from federal courts and set internal
standards to govern the granting of such warrants.
Critics of the wiretapping provisions, including then
Senator Robert F. Kennedy, argued that it gave the President
too much leeway to define national security and thus made
wiretapping possible against domestic political opponents, like
the civil rights movement, or anti-war protesters.45 Critics also
questioned whether wiretapping was truly responsive to public
concern about armed robberies and violence in the streets
which rarely involved the kind of ongoing planning and organization that wiretaps could realistically hope to capture in time
to prevent crime.46 Most proponents would have sided with the
sentiments expressed by Robert Kennedy a few years earlier
when as Attorney General he had supported wiretapping only
on the grounds that law enforcement truly believed it would
help them prevent and punish crime.47
4. Title IV. Gun Control
Liberals had their chief victory in the establishment of
the first federal laws regulating gun sales on a nation-wide
basis. The law set up a federal licensing structure for gun dealers, requiring them to keep information on the purchases of
weapons, banning hand gun sales by mail order, and banning
sales altogether to a range of presumptively dangerous subjects
including dishonorably charged veterans, felons, and the insane.48 The provision was originally defeated, but the assassination of Senator Robert Kennedy by gunfire in a Los Angeles
hotel days before the vote on the overall law resulted in reconsideration and passage of the gun control provision.
44 MALCOLM M. FEELEY & AUSTIN D. SARAT, THE POLICY DILEMMA: FEDERAL
CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION, 1968-1978
at 41, 45 (1980).
45 HARRIS, supra note 42, at 36.
46 Id.
47 Id.
48 Safe Streets Act § 902.
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Crime and the National Political Debate
Contemporary observers in the late 1960s saw the crime
issue as the most significant challenge in decades to the liberal
domination of domestic policy. This was especially true of
President Johnson, who understood the cultural contradictions
of the Democratic majority as much as any politician in the
twentieth century. LBJ famously quipped on the signing of the
Civil Rights Act of 196449 that he had “just delivered the South
to the Republican Party for a long time to come.”50 But losing
the South might have been worth it, in exchange for locking up
a progressive coalition in the Northeast, Midwest, and California.
Johnson intuitively understood how dangerous violent
crime was to the post-New Deal coalition he was seeking to
reestablish. Barry Goldwater had invoked crime in the streets
in his 1964 landslide defeat, but LBJ had succeeded in turning
the campaign on Goldwater’s own extremism not Democratic
permissiveness. LBJ recognized that crime was driving a
wedge thr ough the Democrat’s urban coalition, peeling off
white voters to the suburbs and the Republican Party. He told
pro-civil rights union leader Walter Reuther that “nearly every
white man in this country would be frightened if he thought
that the Negroes were gonna take him over.”51
The specter of violent criminal assaults by blacks on
whites and their property surely invoked the worst of these
white fears of losing privilege. Almost from the start of Johnson’s own term, public anxiety about riots and crime was a constant in the news. Even the New York Times, a paper not easily
swayed by short term popular interests, documented the political rumbling of this issue in the headlines of the mid-1960s:
“Hasidic Jews Use Patrols to Balk Attack”;52 “Philadephia Police Using Dogs to Curb Violence in Subways”;53 “[Mayor] Wagner Orders A Night Patrol on All Subways”;54 and “Fear of
49
78 Stat. 253 (1964).
E.J. DIONNE , JR., WHY AMERICANS HATE POLITICS 81 (1991).
51 G ARY G ERSTLE , AMERICAN CRUCIBLE : RACE AND NATION IN THE 20TH
CENTURY 290 (2001).
52 Reprinted in 7 THE NEW Y ORK TIMES, CRIME AND JUSTICE : THE G REAT
CONTEMPORARY ISSUES SERIES 219 (1978).
53 Id. at 221.
54 Id. at 224-25.
50
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GOVERNING THROUGH CRIME METAPHORS
1049
Muggers Looms Large In Public Concern Over Crime.”55
The apparent rise in violent crime, primarily armed and
unarmed robberies and aggravated assaults, was concentrated
in the big cities that were the traditional anchors of the New
Deal style of government with its emphasis on regulation and
expert decision makers. This kind of one -on-one crime was
linked to the riots and anti-war protests that had become
common for the first time in a century during the mid-1960s.
Both types of events were associated with blacks and students,
two groups that seemed to be often identified with a liberal
federal approach to government.
While the Safe Streets Act was enacted during the
presidential campaign to succeed him, Johnson had not waited
until the last minute to turn to this issue. From the start of his
term he had pursued a consistent strategy consisting of three
elements. First, he spoke frequently and forcefully about his
concern for the harm crime was causing and the absolute necessity of combating it. He fostered the creation of expertise
about crime and the criminal justice system. Most famously,
his President’s Commission on Law Enforcement and the Administration of Criminal Justice began work in 1965 and issued reports in 1966 and 1967. 56 Based on their work, he proposed in 1967 to launch a grant in aid program to fund local
units of government struggling to reduce crime.57
Other forces were at work as Congress took up the proposal in 1967 and 1968. Richard Nixon, seeking the Republican
presidential nomination for 1968, was steadily flogging the
crime issue. In 1968, George Wallace, then known for his confrontation with the Kennedys over the integration of the University of Alabama, which he resisted vigorously, campaigned
as an independent candidate for president, emphasizing crime
as a dominant issue in his appeal to northern voters. Both
Nixon and Wallace argued that the crime problem was ultimately a problem of government. Both viewed the federal
courts as the major villains, especially the Supreme Court under Chief Justice Earl Warren, which had impeded the efforts
of police and prevented prosecutors from using evidence. The
55
Id. at 230.
PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE , THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967).
57 MALCOLM FEELEY & AUSTIN SARAT, THE POLICY DILEMMA 41 (1980).
56
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concern over increasing violence in American cities was evident
in Nixon’s view that the courts “have gone too far in weakening
the peace forces against the forces of crime.”58
To its liberal critics, the Safe Streets Act represented a
moment of reactionary regression on the part of government.
British journalist Richard Harris, writing in the New Yorker,
described it bluntly as “a piece of demagoguery devised out of
malevolence and enacted in hysteria.”59 It is not difficult to see
why they reacted so strongly. LBJ’s “Great Society” strategy to
fight poverty and reform local governance was still in its infancy both administratively and as a successor to the New Deal
approach to government. Along with the administration’s
landmark civil rights decisions, these new programs enge ndered strong resistance from both traditional Republican opponents of expanding the New Deal and Southern Democrats defending segregation. The Omnibus Crime Control and Safe
Streets Act of 1968 represented the first fruits of the union between those forces in Congress; a union that has dominated
American politics ever since.
LBJ was keenly aware of all this when he signed the
Safe Streets Act. It was a dramatic moment. Johnson had already withdrawn from seeking a second term and was attempting to negotiate a cease fire to the Vietnam War. Johnson vacillated on whether or not to sign the legislation, waiting until
the last possible day to sign the bill before it would have become law without his signature. He asked for the comments of
each cabinet agency and was able to state that none had advised him to veto it.
Johnson’s official statement on signing the bill provides
ready evidence of his ambivalence. He described the law on
balance as doing “more good than bad.”60 He expressly rejected
the wiretapping and police interrogation portions of the law,
and following the advice of Attorney General Ramsey Clark, he
made clear that they would not be federal policy for the remainder of his administration. He touted the enormous commitment of federal funds to reforming local law enforcement,
avoiding mention of the law’s new block grant structure, although it represented the first major step away from the style
58
THE NEW YORK TIMES , supra note 51, at 266.
RICHARD HARRIS, THE FEAR OF CRIME 14 (1969).
60 Johnson Statement, supra note 26, at 725.
59
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GOVERNING THROUGH CRIME METAPHORS
1051
of Great Society legislation he had pushed through Congress
earlier.
When he attempted to justify placing his signature on
the law, however, Johnson turned to a series of powerful metaphoric images. The opening line of his statement deployed one
of the most common cognitive metaphors, the idea of a “journey” narratively applied to something very different in life like
a love affair, a career, or in this case the development of a
law.61 “The Safe Streets and Crime Control Act of 1968 has had
a long journey,”62 the President stated. Johnson recounted his
efforts, beginning in his very first year as an elected President,
to appoint a national crime commission and apply its expert
findings to the wealth and power of the federal government in
the name of aiding local law enforcement.63 To this end, Johnson had introduced legislation in Congress in February 1967,
shortly after the publication of the Crime Commission’s
Report. “Now,” Johnson announced, “almost 500 days later, the
legislative process has run its full course.”64
The journey image is prologue to a whole series of additional metaphors that seem aimed at elaborating his governmental act of signing the bill into law.
C.
The War on Crime
The most prominent metaphor is military imagery. The
“war on crime” has become so common an idea that it is easy to
forget it is a metaphor, arguably one of the most successful
governmental metaphors of the twentieth century. Although it
is widely associated with President Nixon (he actually declared
the war on drugs), President Johnson used it in public statements throughout his presidency. In March 1967, before a
White House conference with 500 state, city, and private law
enforcement and corrections specialists, the President spoke of
“our war on crime.”65 The Presidential statement given when
he signed the Safe Streets Act bristled with a whole series of
61
Id.
Id.
63 Id.
64 Id.
65 DALLEK, supra note 32, at 409.
62
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more specialized metaphors.
Recounting the origins of the law in the first bill he had
introduced to Congress in 1967, Johnson described his legislation as a call upon Congress to “strike a sure and swift blow
against crime in America.”66 In this image, one variation on the
war on crime theme, the lawmakers are treated as a physical
body. Today, thirty years into the development of governing
through crime, we are apt to follow that metaphor through to
an image of corporal or even capital punishment, or hand to
hand combat. Johnson turned it into his Great Society vision,
imagining the limbs as great streams of federal money flowing
to increase the capacity of local law enforcement. The provision
of federal funds and expertise would allow state and local
communities to “plan, organize, and mount a concerted and
effective attack on crime.”67
In his closing paragraph, Johnson returned to the war
on crime metaphor, imploring local officials to: “Support the
policemen, the law enforcement systems and to move promptly
to support the policemen, the law enforcement officers, and the
men who wage war on crime day after day . . . .” 68 Here the
metaphor has shifted to one more consistent with our current
imagery. The war on crime emerges as a war on criminals (and
by implication those who look like they might be criminals,
primarily young minority men in the inner cities). Police are
depicted as soldiers engaged in active combat.
The war on crime metaphor provides a clear example of
what I call governmental metaphors. What is being transferred
from one domain (war) to another (law enforcement) is specifically a vision of the role of government. Someone more enamored of normal science than I might talk about cognitive political science, or political cognitive science. It seems justifiable, at
any rate, to view metaphors like these as operating in the
realm of political reason.69
The origin of war as a metaphor for recasting government developed out of the American experience of World War
66
Johnson Statement, supra note 26, at 725.
Id.
68 Id. at 728.
69 Political reason is used here in Michel Foucault’s sense of a rationality
proper to the problem of government itself and not simply mapping that terrain from
theology or economics. See Michel Foucault, Governmentality, in 3 ESSENTIAL WORKS
OF FOUCAULT, 1965-1984 at 201 (James D. Faubion ed., 2000).
67
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GOVERNING THROUGH CRIME METAPHORS
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II. This was a war of total mobilization in which economies of
great societies were largely given over to total war production.
In that sense, it has had no real parallels. All the U.S. wars
since 1945 have been conducted while maintaining high civilian living standards. Nonetheless, the images of a war on poverty, war on crime, war on cancer, war on drugs, and war on
terrorism continue to invoke the image of an empowered central government mobilizing the nation and its resources to undertake systematic measures against an enemy that poses a
mortal threat.
1. The Street
Running through the Johnson war on crime metaphor is
the image of streets. The idea of titling the administration’s
major 1967 legislative initiative on crime the “Safe Streets Act”
came from Housing and Urban Development Secretary Joseph
Califano.70 One of the administration’s leading liberals, Cal ifano wanted to emphasize that anti-crime measures were not
goods in themselves but ways to “restore public and private
safety.”71 In the name of the Act and in the language of Johnson’s signing statement, streets come to operate as a metonymy
for American society generally, and especially the great American cities. Johnson’s metaphor expressed not simply an ideology or a set of beliefs but a strategy for retooling liberalism to
govern the changing urban landscape, the unstable “habitus” of
the great cities on which Johnson’s Democratic majority remained dependent.72 Johnson claimed, “I sign the bill because
it responds to one of the most urgent problems in America today—the problem of fighting crime in the local neighborhood
and on the city street.”73
Crime was defined as one of America’s “most urgent
problems,” but Johnson’s strategic message was embedded in
70
DALLEK, supra note 32, at 407.
Id.
72 In this regard he shared the sentiment of many of the more liberal
Democrats who had voted for the law because to do nothing courted a “real possibility
that the people will lose their faith in the government’s ability to protect them”
HARRIS, supra note 59, at 99 (quoting Senator Philip Hart, a liberal Democrat from
Michigan, and an opponent of the crime bill, regarding the reasoning of the Act’s Democrat supporters).
73 Johnson Statement, supra note 26, at 725.
71
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the images that followed: “fighting crime,” “local neighborhood,” “city street.” Fighting crime is an entailment of the war
on crime metaphor. What do armies do at war but fight? However, the fight is neither nowhere nor everywhere, it is in two
places, “the local neighborhood” and “on the city street.”
These two locations point to subtly different terrains.
Local neighborhoods, to be sure, contain city streets (and in
many older cities they are mostly streets), but the referents of
local and neighborhood suggest something culturally more specific. By multiplying “local” against the semantically close
“neighborhood,” the Johnson statement invokes the intimacy of
private residences and the immediate surrounding area including your “block,” perhaps a neighborhood school, and park. The
term “city” modifying streets in the next image, “city street,”
gives us one final clue . By implication, the “local neighborhood”
is not city. Today it is specifically “suburban” but in 1968 the
term still coded many of the outlying neighborhoods within city
limits but differentiated from the urban core designated colloquially as “the city.” If local neighborhood codes the private,
the residential, the local, and often parochial, we can assume that “city street” codes
something far more specific than municipal roadways, these
are downtown, public, business, and shopping streets.
The combination of these images produces two separate
but related dynamics. One is a classic public/private split that
has long been observed as central to liberalism as a form of
political thought.74 Throughout the statement, Johnson seems
to tack back and forth, referencing “homes and families” in contrast to streets. The gun control provisions of Title IV are extolled in the statement as a partial step toward “the protection
of our homes and families.”75 Likewise, Johnson is concerned
that wiretapping and eavesdropping could become abused and
threaten the privacy by producing
a nation of snoopers bending through the key holes of the homes and
offices in America, spying on our neighbors. No conversation in the
sanctity of the bedroom or relayed over a copper telephone wire
would be free of eavesdropping by those who say they want to ferret
74 On the public private split in liberal thought, see generally Duncan
Kennedy, Form and Substance in Private Law Adjudication, 89 HARV . L. REV . 1685
(1976).
75 Johnson Statement, supra note 26, at 726.
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GOVERNING THROUGH CRIME METAPHORS
1055
out crime. 76
In contrast, when Johnson returns to streets at the end
of the statement, it is to invoke a day-by-day war raging in
those streets between forces of crime and forces of law and order. Thus, while the private spaces, neighborhoods, homes, and
offices are to be protected not only against crime but against
law enforcement’s own excesses, the streets are to be scoured
by an unforgiving war.
Across this divided terrain Johnson wants to offer his
party a strategy. Crime was an urgent problem, but specifically
in the way it was undermining the Great Society on two of its
most crucial anchors. On the one hand, there was the largely
urban working class that had been made into a new kind of
middle class by New Deal policies and post-War affluence, and
the organized interests represented by those downtown streets,
municipal unions, banks, and insurance companies with large
real estate holdings, large public institutions like museums
and universities, and the large corporations that sustain them.
On the other hand, there was, by 1968, the civil rights community as a representative of black America.
a. “stain” and “shadow”
This political strategy is most powerfully expressed in
what, in my reading, is the central metaphoric construct of the
statement. In language widely quoted by newspapers at the
time, President Johnson summarized his judgment to sign the
legislation thusly: “I believe this measure, despite its shortcomings, will help to lift the stain of crime and the shadow of fear
from the streets of our communities.”77 The term “stain” carries
with it a powerfully evocative image of degradation. Consider a
standard set of dictionary definitions:
1. a discoloration produced by foreign matter that has penetrated
into or chemically reacted with a material. 2. a natural spot or patch
of color different from that of the basic color, as on the body of an
animal. 3. a permanent impairment to one’s reputation; stigma.78
76
Id.
Id. at 727.
78 THE RANDOM HOUSE COLLEGE DICTIONARY 1282 (Jess Stein ed., 1975) (em77
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The three definitions suggest a possible metaphoric
pathway, from stain that is caused by a foreign matter, to one
that is a natural blemish, to one that is a moral blemish. Stain
in a cognitive sense communicates several very basic metaphors that cognitive science treats as more or less crosscultural and trans-historical. As Winter notes, these metaphors
are generally associated with the body and the experience of
being embodied and are progressively transposed on more abstract entities.79 The most basic metaphor in the stain metaphor is light/dark as a metaphor of good and bad. Cognitive
scientists have traced this pattern in a wide variety of cultures
and across racial lines.80 Stain builds on the light/dark metaphor and adds the sense of pollution associated with many
stains. In other words, stains are usually treated as minor
tragedies not simply because the discoloration is aesthetically
unattractive, but because the source of the stain itself, food or
drink consumed in the past, or bodily fluids, are invested with
a culturally negative meaning that is also, one suspects, found
in many societies.
Crime as a source of “stain” is an easy metaphoric leap
as suggested by the third dictionary definition. That crimes
were supposed to “stain” the offender literally is an image that
authors have drawn on repeatedly. One of the best known examples being Shakespeare’s Tragedy of MacBeth in which
Shakespeare uses it twice for both his criminal protagonists.81
When MacBeth emerges from murdering Duncan, Lady MacBeth points to the blood staining his hands and commands
him: “Go get some water, and wash this filthy witness from
your hand.”82 Two acts later in one of the play’s most haunting
scenes Shakespeare modifies the metaphor from a stain of visibility to one of smell. Lady MacBeth is shown in a sleep walking state trying unsuccessfully to wash the smell of blood from
her own hands: “Here’s the smell of the blood still. All the per-
phasis added) [hereinafter DICTIONARY].
79 WINTER, supra note 3, at 22-32.
80 Indeed race itself may be an extension of this metaphor of darkening or
staining as making something morally less worthy.
81 WILLIAM SHAKESPEARE , THE TRAGEDY OF MACBETH, in THE RIVERSIDE
SHAKESPEARE (G. Blakemore Evans ed., 1974).
82 Id. at 1368.
2002]
GOVERNING THROUGH CRIME METAPHORS
1057
fumes of Arabia will not sweeten this little hand. O, O, O!”83
Shadow of fear has much the same structure. Fear does
not literally cast a shadow any more than crimes leave stains.84
The metaphor is another variant of the light/dark system in
which positive attributes are light and negative ones are dark.
Fear darkens what, one’s sentiments, one’s prospects, one’s
countenance? These darkenings are also not good, but they do
not necessarily communicate permanent alteration of appearance or reputation in the same way that stains tend to.85
By combining two metaphors with great similarities at
the most gene ral level, the Johnson statement produces a hybrid governmental metaphor that is historically and culturally
specific.
These images, however, are further situated by the
phrase “streets of our communities.”86 It is the street that is
stained by crime and shadowed by fear and the street is held
out as a privileged subset of community. Street is immediately
linked to community, setting up a form of metonymy in which
the whole community is represented by the image of the street.
On one level this means those communities defined by their
streets—i.e., the great dense urban centers—especially their
employed middle classes, are being “stained” by crime. They
are losing not only their population base and economies but
their moral standing in the polity. At the same time respectable citizens, the victims shadowed by street crime, have every
incentive to exit those unsafe streets, a move subsidized by liberal federal governments to a tune far more generous than the
Great Society spending on the poor.
Crime and fear, stain and shadow, seem to pick out different audiences; those who are morally stigmatized by crime
and those who are made afraid by it. Johnson, a New Dealer at
heart, was speaking to two important pieces of his quickly
83
Id. at 1382.
To be sure, the development of DNA technology changes that dramatically.
Now the metaphor of crime leaving a stain is becoming an organic reality for an astounding variety of crimes that leave even flakes of skin or bits of saliva behind (like
mail fraud).
85 Infamously, Time Magazine admitted to darkening a picture of O.J.
Simpson for the cover of a 1994 issue detailing accusations of murder against him. See
Deirdre Carmody, Time Responds to Criticism Over Simpson Cover, N.Y. TIMES , June
25, 1994, at A4.
86 Johnson Statement, supra note 26, at 727.
84
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fragmenting Great Society coalition. The first piece was that
composed of minorities and especially the urban black communities of the North whose annual summer riots, more than any
single factor in the mid to late 1960s, seemed to doom his programs with their own stain of failure and worse. Yet Johnson
had invested a great deal in urban black communities. By
throwing his support fully behind the Civil Rights Act of 1964,
he had cut his party’s ties to many of its traditional white
southern supporters. The “maximum feasible participation”
element of his Great Society poverty programs was aimed directly at the community action orientation of the civil rights
movement and also represented an effort to create
direct federal support for movement organizations cut out from
the establishment partisan spoils system.87
Johnson’s historic gamble depended on the moral capital of the civil rights movement to hold the support of northern
white voters. As long as blacks were perceived as a victim
class, Johnson could demand significant federal remedial effort
as an effort to correct historic injustice. But crime, both armed
street robberies that surged during the 1960s and rioting, was
reversing that moral polarity. That is why the riots were so
damning; they took the image of violence and theft in the
streets largely rooted in the habits of young men and defined
whole neighborhoods as violent and crime prone. As soon as
blacks were seen as morally stained by crime, Johnson had
every reason to fear his policies would come to seem ineffectual
and possibly responsible for the problem. Johnson’s message to
black voters and to the liberal wing of his party was that only
serious efforts to actually reduce crime could remove the moral
stain that was clouding the issues of the civil rights movement.
The second piece of the coalition Johnson seemed to be
addressing were the urban middle classes who in the late
1960s were abandoning traditionally prestigious city neighborhoods for new suburbs in large numbers. At the time, a lot of
attention was focused on the role of school desegregation in
encouraging this white flight, but few doubt that fear of crime
was a major factor and one that influenced attitudes88 toward
87
88
DALLEK, supra note 32, at 80.
DIONNE , supra note 50, at 94.
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GOVERNING THROUGH CRIME METAPHORS
1059
schools and integrated neighborhoods generally. This population was demographically weighted toward the immigrant
families of the great European immigration waves from the
middle of the nineteenth century through the adoption of exclusionary legislation in the mid-1920s: Italians, Irish, Jews,
Germans.89 Many of them were members of the new middle
class whose dependencies on higher education incentives and
high wage jobs rather than private capital made them traditionally loyal voters for the Democratic Party.
Fear of crime was beginning to build a major wedge between these voters and the liberal wing of the Democratic
Party whose commitment to civil rights came to seem to many
in this population as indifference to their fear of black criminality. Lifting the shadow of fear meant policies aimed at inducing this population to remain within the cities, if they had
not moved yet, or to at least remain politically supportive of
the urban agenda if they had already removed themselves to
the suburbs.
2. Law Enforcement
A second strand of the war on crime metaphor that runs
through Johnson’s statement is that of law enforcement as the
embodiment of the way government serves the people. Just as
streets become a metonymy for society, police become a metonymy for the state as a whole. Throughout the text, Johnson
uses law enforcement to mean, at a minimum, the entire
criminal justice process. In a complex movement, Johnson simultaneously offers law enforcement as the solution to the
community beset by crime and fear of crime (stain and shadow)
and as a special victim class of its own that needs special federal attention. The end result is to mark both citizens fearful of
crime and state and local law enforcement as requiring a privileged status as federal subjects.
While later presidents would conflate themselves with
local law enforcement (and Congress has followed suit by federalizing much local crime), Johnson saw the federal government largely as a facilitator for the improvement and reform of
89
Id. at 214.
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law enforcement. True to his New Deal heritage, Johnson emphasized the expert knowledge behind his program. The job of
the executive was to bring together on a national basis the kind
of expertise that was unavailable at the local and state levels.
My program was based on the most exhaustive study of crime ever
undertaken in America—the work of the President’s national crime
commission. That commission—composed of the Nation’s leading
criminologists, police chiefs, educators, and urban experts—
spotlighted the weaknesses in our present system of law enforcement.90
In touting the part of the Safe Streets Act that he liked
the most, the Great Society-like action grant program was designed to motivate the innovation and reform Johnson promised would “strengthen the sinews of local law enforcement—
from police to prisons to parole.”91 Here the statement deploys
one of the oldest of governmental metaphors, one so old that it
is inscribed as a dictionary meaning of sinew. Literally, sinew
is the Greek term for tendon, the connective tissue that lies
between bands of muscle and key bone structure.92 Metaphorically, sinew has long stood for the “source of strength, power, or
vigor.”93
The metaphor offers a subtle response to the by then
loud criticism from the right that crime in the streets was a
response to the liberal administration’s failed policy of rewarding morally and socially bad behavior in the name of fighting
poverty. By locating the problem of crime in the weakness of
state and local law enforcement, Johnson denied both that
there was an essential weakness in American society and that
the federal government was the source of it. On the contrary,
the federal government alone could lead the kind of reconstruction of local power that would be necessary to make American
streets safe in the last part of the twentieth century. The ambition was nothing less than reconstructing the power of law en90
Johnson Statement, supra note 26, at 725.
Id.
92 DICTIONARY, supra note 78, at 1226.
93 Id. The entry goes on to give as an example a political metaphor “the sinews
of the nation.”
91
2002]
GOVERNING THROUGH CRIME METAPHORS
1061
forcement at a molecular level. The federal role was to collect a
national base of expertise through the new National Institute
of Law Enforcement and Criminal Justice (later the National
Institute of Justice) which the President referred to as “a modern research and development venture which would put science
and the laboratory to work in the detection of criminals and the
prevention of crime.”94 Federal money would also flow to pay
off college loans and attract a new college educated work force
into law enforcement, as well as open up new training and salary enhancements. In short, the war on crime for Johnson
looked a lot like a war on poverty with police in the role of
community development agencies.
One of the most consequential features of the Safe
Streets Act, revealed in the statement, is the intertwining of
police and citizens as victims. Police are held out as the party
that can most effectively prevent victimization. “But at a time
when crime is on the tip of every American’s tongue, we must
remember that our protection rests essentially with local and
State police officers.”95 At the same time, law enforcement
would become the privileged subject of governance itself, parallel to the citizen in the local community in relation to the nation and its executive.
3. Governing the Streets
In the concluding paragraph of the statement, President
Johnson brought the whole constellation into view, the war on
crime, its territorialization into streets, the centrality of law
enforcement. He did this in a paragraph that addressed itself
to other governing officials.
Today, I ask every Governor, every mayor, and every county and city
commissioner and councilman to examine the adequacy of their
State and local law enforcement systems and to move promptly to
support the policemen, the law enforcement officers, and the men
who wage the war on crime day after day in all the streets and roads
and alleys in America.96
94
Johnson Statement, supra note 26, 726.
Id. at 727.
96 Id. at 728.
95
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The Safe Streets Act, as read by President Johnson, was
a call to reform governance, “State and local law enforcement
systems,” a mandate from the federal government to state and
local leaders. The “war on crime” was situated between parallel
structures of repeated invocations of law enforcement and
streets. First comes the human element of law enforcement,
“policemen,” “law enforcement officers,” “men who wage the
war on crime day after day.” Second comes the naming of
“America” in an almost Whitmanesque elegy to its “streets and
roads and alleys.”
III.
IMAGINING AN ALTERNATIVE: GOVERNING THROUGH
CANCER
Winter97 and Lakoff98 are in agreement that there is
generally no law and reason without metaphor. Both treat this
as a feature of reason itself. Michel Foucault’s concept of governmentality, a condensation of “governmental” and “rationalities” sheds a similar light on the relationship between governance and reason. Foucault suggests that the task of acting on
the actions of others (government) is bound up with ways of
reasoning about governing.99 If governing through crime and
its metaphors is undesirable, it is not because they fail the test
of a fully transparent and democratic will formation that is
supplanted or distorted by crime and the moral panic it gives
rise to. From a governmentality perspective, evaluation is difficult to separate from the rationality of government itself that
tends to define what is knowable and more importantly to produce truth selectively only in ways that are a byproduct of its
own strategies of intervention.
Both cognitive science and governmentality research
suggest that governing through crime and its metaphors can
only be contested with other metaphors and other ways of rationalizing governance. American political culture has produced a great many metaphors to govern by including the yeo97
WINTER, supra note 3, at 64.
LAKOFF, supra note 8, at 7.
99 Foucault, supra note 69, at 201.
98
2002]
GOVERNING THROUGH CRIME METAPHORS
1063
man farmer, the freed slave, and the exploited industrial
worker. The dominance of the crime victim today as a subject
of governance has not completely eclipsed any of these; they
remain deposits of power that can help change the trajectory of
governance.
I believe one of the most productive subjects of governance is the problem of preventing cancer. Like crime, cancer
has always been a hot issue for Americans.100 Beginning at the
end of the nineteenth century, a national discourse about cancer emerged, as well as the nodes of a national network of
power and knowledge.101 After World War II, for a variety of
reasons, fear of cancer moved to the front of that national legislative agenda. In this new phase, cancer was primarily problematized as a preventable disease rooted in unhealthy industrial practices of production and consumption. Popularized by
authors like Rachel Carson, this fear of a cancer backlash from
America’s industrial affluence after World War II gave rise to
the modern environmental movement.102
Seeking to capture this growing energy, Richard Nixon
declared a “war on cancer” in 1971.103 Nixon was keenly aware
of the potential for the environmental movement to spawn a
new governmental rationality quite different from the traditional focus on work place conflict between capital and labor,
one focused on the externalities of industrial production in both
the workshop and home. His war on cancer, however, proved a
pale effort compared to the far more politically successful war
on drugs.
If only for what it can teach us about our current conjuncture, I propose that we re-launch the war on cancer as an
alternative metaphor to the war on crime, this time without
the restraints that guaranteed the war on cancer would remain
a small scale spending war compared to the governance shaping war on drugs and crime that has continued through three
decades. Like violent crime, cancer invokes a deep fear associated with that which cannot be prevented or treated once it
strikes. Moreover, like crime it arrests Americans across all
100
See generally JAMES T. PATTERSON, THE DREAD DISEASE: CANCER AND
MODERN AMERICAN CULTURE (1987).
101 Id. at 167.
102 See generally RACHEL CARSON, SILENT SPRING (1962).
103 PATTERSON, supra note 100, at 35.
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divides striking a common chord of dread and despair. In that
sense it offers something capable of mobilizing action across
society.
There is much, however, in the history of governmental
efforts to fight cancer that suggest it might not be an improvement on crime. As Susan Sontag shows in her path breaking
study of illness as a political metaphor, cancer has often been
associated with stigmatizing the victim.104 Moreover, contemporary cancer treatment resembles the war on crime all too
much with remedies that are visibly harmful to the patients
and commonly fail to arrest the malignancy. Renewing the war
on cancer means moving back behind Nixon’s truncated war on
cancer to the broader regulatory politics inspired by fears of
carcinogens in the food supply during the 1950s. The new war
on cancer should return to the focus on environmental causes
of cancer (both behavioral and industrial) that animated the
legislation of the 1950s and 1960s. While the war on crime has
focused almost exclusively on punishing individual wrongdoers,
this new war on cancer would focus on the myriad practices
that alter the risks of cancer in humans and the potential to
alter common practice to reduce that risk. As a problem, preventing cancer offers a mandate for the workplace, for the family, for consumption, and for the state.
As a metaphor, a war against the causes of cancer
would carry entailments quite different than a war on crime.
The war on crime from as early as the 1968 Safe Streets Act
was visibly a war on criminals—those easily mistaken by the
police for criminals. This population was predominantly poor,
minority, and concentrated in poverty zones in the central cities. The targets likely to emerge from a war on the causes of
cancer, like producers of significant carcinogens, are powerful
corporations with significant political and cultural resources to
compete in the production of knowledge and methods of intervention. The war on crime and drugs has made the police and
the prison system the dominant model of winning. A war on
the causes of cancer would have to enter into the household,
into patterns of consumption, into lifestyle. The war on crime
has made violence the chief technology of power. A war on cancer would quickly become a war of information in which the
104
See generally SUSAN SONTAG, ILLNESS AS METAPHOR (1977).
2002]
GOVERNING THROUGH CRIME METAPHORS
1065
produc tion of knowledge about the causes and cures of cancer
would replace a top down law enforcement government with a
bottom up effort to spread and interpret the flow of cancer information.
In short, it would quickly break out of the war metaphor
altogether and provide us with a model of governance itself.
Cancer, quite unlike crime, is defined as the failure of regulation itself. If cancer replaced crime as a chief metaphor for reshaping government, the deployment of these same entailments on social problems could be expected to generate unpredictable but quite different effects then crime. Schools, for example, currently obsessed with mapping crime, drugs, and
break downs in discipline, might turn to teaching the science of
cancer biology, the environmental sources of cancer, and the
capacity of students to avoid major cancer risks like smoking.
CONCLUSION
In retrospect the signing of the Safe Streets Act marked
the end of the Great Society era and the liberal pro-Civil Rights
dominance of federal policy. It would rapidly produce its own
theorists, political scientists Richard Scammons and Ben J.
Wattenberg, who published The Real Majority 105 in 1970, only
two years after the Act and the Republican take-over of the
White House. The book used crime as the central example of
how the Democratic Party was in real danger of losing its two
generation long majority status by ignoring a profound shift of
its traditional supporters on a host of “social” issues (including
the race problem, abortion, family values, etc.). Democrats, in
their view, had to move fast to stop talking about the root
causes of crime and instead support tougher law enforcement
measures to repress existing criminals, even if that trampled
on Civil Rights concerns.
With remarkable speed, Democrats in Congress followed suit. Richard Nixon introduced numerous crime proposals during his first year in office but had no control over the
legislative agenda since the Democrats held both houses of
105
(1970).
RICHARD SCAMMONS & BENJAMIN J. WATTENBERG, THE REAL MAJORITY
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Congress by large majorities and were not anxious to allow
Nixon to brand the crime issue effectively as his own. As the
1970 election approached, however, the Democrats rapidly took
up and enacted with little debate virtually everything on the
administration’s list including “no -knock entry” and “preve ntive detention” proposals for the District of Columbia, measures that would have been considered far too extreme for the
Safe Streets Act.106 On the campaign trail, liberal Democrats
sought to explicitly define their moral commitment to rejecting
crime. Edward Kennedy, running for re-election in 1970, told
an audience at Boston University:
Those who seek change by the threat of use of force must be identified and isolated and subjected to the sanctions of the criminal law.
They are the hijackers of the university . . . and like hijackers, they
must be deterred and repudiated . . . . Any person who lends them
aid and comfort, any person who grants them sympathy and support, must share the burden of guilt.107
History would show that this rapid turn would not restore liberals to their influence. Some would argue that they
never moved far or fast enough to the right. Once the game of
who could be tougher came to dominate, there was little chance
of outrunning the issue since each election cycle brought a new
crime bill with a new array of opportunities for one’s commitment to punishment to be tested.
Governing through crime has pushed America in two directions that have had enormous consequences for the long
term governability of the society, both suggested metaphorically in Johnson’s signing statement of the Safe Streets Act.
The first is the rise of the “street” as the nexus for a war on
crime style of governance. Second is the extraordinary emphasis this has placed on policing in managing virtually all large
organizations, public or private.
The Safe Streets Act made streets a metonymy for society in general and public areas of large cities particularly. In a
metonymy, a part represents the whole, as when a scepter
represents the royal sovereign. As a governmental metaphor
(or metonymy), safe streets has had two different kinds of ef106 John Herbers, Democrats Shift to Right, in Line with G.O.P. on Crime Issues, N.Y. TIMES, Oct. 12, 1970, at A26.
107 Id.
2002]
GOVERNING THROUGH CRIME METAPHORS
1067
fects. First, it has reinforced a portrait of streets in general,
and city streets in particular, as dangerous. Just as the phrase
“working mother” implies that the prototype mother does not
work, the “safe streets” project put the federal government’s
imprimatur on the dangerousness of city streets. Although already determined, the years (even months) after June 1968
would see a rapid dissolution of the central sectors of great cities like Detroit, Cleveland, Los Angeles, St. Louis, and Newark.
Second, in making streets the site for the war on crime,
the Safe Streets Act mobilized a major effort to reshape American streets to make it easier to fight crime them. In this sense
the governmental metaphor of safe streets has contributed to
the (in my view ultimately undesirable) transformation in the
construction and governance of the urban environment. In a
very real sense we live in the “safe streets” imagined by the
war on crime declared in 1968.108
Johnson’s contrasting images of homes and neighborhoods and streets has been reproduced in the contemporary
suburban landscape. A new kind of street landscape has
emerged in America since 1968 characterized by super wide
roadways designed for the rapid move ment of automobiles
through an area and the easy passage and manipulation of
emergency vehicles.109 These new landscapes are replacing traditional neighborhoods in older cities and intersecting the new
“edge city” suburbs. In the suburbs one finds segmented or
even gated clusters of homes linked to roadways designed for
rapid transportation and the movement of emergency vehicles
rather than commerce in the old sense that had dominated.
The same kind of “safe streets” have appeared in the inner cities as well, often in place of streets damaged by the riots of the
late 1960s.
But turning our cities and suburbs into “safe streets”
has had a significant effect on American middle class life. Some
contemporary urban designers have come to see these streets
as one of the sources of “social decline.” Andreas Duany, Elizabeth Plater-Zyberk, and Jeff Beck, in a section of their planning manifesto against “sprawl” titled “Safe Streets versus
108 There
were earlier precedents to be sure.
See generally ANDREAS DUANY ET AL., SUBURBAN NATION: THE RISE OF
SPRAWL AND THE DECLINE OF THE AMERICAN DREAM (2000).
109
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Dangerous Streets,” offer an unambiguous judgment against
this new terrain:
The problem with current street design standards is not that engineers have forgotten how to make streets feel safe but that they
don’t even try. Streets that once served vehicles and people equitably
are now designed for the sole purpose of moving vehicles through
them as quickly as possible. The have become, in effect, traffic sewers. No surprise, then, that they fail to sustain pedestrian life.110
An urban environment shaped around safe streets may
facilitate governing through crime but it creates profound governance problems for families (how to drive and risk manage
the kids through an environment they cannot negotiate until
teen years at the earliest) and employers (whose employees
face formidable challenges in balancing work and family at
great distances).
As the last lines of President Johnson’s statement suggest, the link between the war on crime and the streets, roads,
and alleys of America are the police and law enforcement
agents who fight there on a day-by-day basis. The major thrust
of federal investments through the Safe Streets Act was directed toward improving police and specifically to equip them
to take back control of the streets from rioters and criminals.
Much of that money went into technology aimed at the street,
including armored personnel carriers and other paramilitary
equipment.
The city re-imagined as its streets must be governed
more than ever by police. In communities of the affluent a
great deal of this policing is done by private services and by
exclusionary designs, like gated communities, aimed at making
it easier to identify strangers. In communities of the poor this
has meant public police and a vast penal system to remove
from the streets those captured by the police.
In the end, the Safe Streets Act did not lift the “stain of
crime” or the “shadow of fear” from American cities or their
streets. Instead, whole communities remained isolated from
the economic growth of the past three decades in large part
because of the stigma of being high crime areas. The vast federal justice effort has encouraged this at every turn, for exam110
Id. at 64.
2002]
GOVERNING THROUGH CRIME METAPHORS
1069
ple, by promoting drug courier profiles that define most major
cities in America as drug source or drug destination cities. The
shadow of fear has been generalized so that even suburban
landscapes seem threatening enough that millions of Americans now feel safe only behind the wheels of SUVs.
There are signs of new politics that make governing
through crime its focus. Across American campuses and in
many minority communities, a movement against incarceration is building momentum.111 The securitization of the school,
workplace, and residential community is also generating a
backlash as American individualism becomes affronted by a
gated community world. Understanding how crime metaphors
have worked to shape governance can help this growing resistance in two respects. First, by making visible the way the
metaphoric system frames action possibilities, it becomes possible to challenge the entailments of the crime metaphors in
terms of their origins. Second, by suggesting the necessity to
promote new metaphors of governance that can compete with
crime in its symbolic potency and global reach.
Fighting the causes of cancer is an example of an alternative metaphor for governance that can compete with and
help undermine governing through crime. First, simply by
thinking about the causes of cancer as an alternative focus of
governance, the productivity of a metaphor like crime becomes
more visible. Like the causes of crime, the causes of cancer
provide a grid of concerns that are flexible enough to map onto
almost any topic of governance, including education, health,
the environment, or the family. Like crime, cancer provides the
stimulus of an always present but rarely visible threat that
demands governmental concern. Like crime, cancer is also capable of stigmatizing its victims and thus a war on cancer
could become a war on cancer victims. But a serious war on the
causes of cancer would inevitably move beyond the current obsession with controlling dangerous individuals and toward a
confrontation with dangerous practices, habits, and technologies.
111 See Bell Chevigny, Prison Activists Come of Age: In California Resistance
to Prison Expansion Builds on the Past, 271 THE NATION, July 24, 2000, at 1.
“WE MUST BE HUNTERS OF MEANING”:1
RACE, METAPHOR, AND THE MODELS
OF STEVEN WINTER∗
D. Marvin Jones †
INTRODUCTION
As a black male I have tried to come to grips with why,
unless I’m wearing a suit, whites generally will not sit beside
me on the train, why when I walk down the street lined with
cars I am treated to a symphony of automatic door locks going
off, why I cannot catch a cab in New York.
I teach Criminal Procedure, a course in which the issue
of racial profiles is very much a topic of discussion. Racial profiling is something that occurs against the backdrop of racial
* ©2002 D. Marvin Jones. All Rights Reserved.
† Professor of Law, University of Miami.
1 The phrase is from JEAN-PAUL SARTRE , “WHAT IS LITERATURE ” AND O THER
ESSAYS 4 (1988). The full quote is “We would be hunters of meaning, we would speak
the truth about the world and our own lives.” Id. Sartre’s “hunt” or search was for
human possibilities in the midst of the moral complexity of WWII. Sartre’s “hunt” for
truth assumed that the truth is something that is obscured by our classical assumptions in philosophy and that could be gotten at only by exploring certain things which
are interior to the human condition. For example Sartre sought to understand the
basic impulse to produce writing or art. I chose this phrase because I believe that both
Steve’s project and mine hinge on a similar search for interior sources. Steve focuses on
materials from cognitive psychology to map the mind itself in order to expose the internal architecture of legal reasoning. I focus on language to expose the “architecture”
of racial identity. We both conduct our search amidst an equally complex discursive
moment.
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stereotypes and myths. Not so long ago at an affair for the law
school I came dressed in a dark suit. One of my older white colleagues came up to me and asked, with a smile, “What are you
doing dressed like that? Are you going to rob a bank?” In his
day Dubois stated the essence of the black experience through
the question, “How does it feel to be a problem?”2 In the midst
of the twenty-first century the question seems to have become,
“How does it feel to be a myth?”
I see myself in the vignette told about Miles Davis who,
living in a predominantly white neighborhood, was reduced to
having to telephone the police to warn them whenever he went
out. I see myself in the experience of Al Joyner, an Olympic
bronze medallist who no longer drives in Los Angeles because
of police harassment. I see myself in the experience of Earl
Graves, Ivy League graduate, elegantly dressed businessman,
publisher of Black Enterprise Magazine, being stopped and
frisked, briefcase in hand, by policeman searching for a criminal described only as a black man with short hair.
I am haunted by Mr. Stuart’s story about a black man
in a rumpled jogging suit who robbed him and his wife, killed
her, shot him and escaped in the darkness.3 After an extensive
manhunt for the man in the rumpled jogging suit, he was later
revealed to be a fiction, made up by Mr. Stuart to cover his own
murder of his wife. Susan Smith told a similar story about a
black man, wearing a watch cap, who hijacked her car and kidnapped her two small kids.4 It turned out the black male kidnapper in the watch cap was a cardboard cut out of a bogeyman. The real kidnapper was Susan Smith herself: She invented the mysterious black male to hide her own media-like
murder of her kids.
2 W.E.B. Dubois in his great work, THE SOULS OF BLACK FOLK, wrote:
Between me and the other world there is an unasked question: unasked by some through feelings of delicacy; by others through the difficulty of rightly framing it. All nevertheless flutter ‘round it. They
approach me in a half-hesitant sort of way . . . . How does it feel to be
a problem? Then it dawned on me with a certain suddenness that I
was different from the others; or like mayhap in heart and life and
longing, but shut out of their world by a vast veil
W.E.B. DUBOIS, THE SOULS OF BLACK FOLK 7-9 (John Edgar Wideman ed., 1990).
3 Larry Marx et al., A Murderous Hoax , NEWSWEEK, Jan. 22, 1990, at 16.
4 Gary Lee & Bobby Vobejda, In S. Carolina, an Angry Arraignment; Mob at
Courthouse Jeers Woman Who Concocted Tale of Sons’ Abduction, WASH. POST, Nov. 5,
1994, at A1.
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WE MUST BE HUNTERS OF MEANING
1073
Why was Mr. Stuart or Susan Smith believed?
It may have something to do with what Jesse Jackson
said: He feels relieved when he finds, walking in his Chicago
neighborhood that it is a “white man” that is walking behind
him.5 Apparently, in the words of Cecil Taylor, we are as males
black even to ourselves.6
I experience these narratives not merely as familiar,
troubling anecdotes, but as memory. I remember Miles and Al
Joyner and Earl Graves; I remember also Emmet Till,7 and the
Scottsboro Boys.8 I remember walking behind others and sensing their fear. I remember these stories as stories both about
my own identity and about identity as trope.
I.
LOCATING THE CONCEPT OF RACE
For me the work of Professor Steven Winter is seminal.9
Steve has a soul, which seeks to map the structure of legal
thought, its beginnings, sources, and foundations. This map5 Paul Glastris; Jeannye Thornton, A New Civil Rights Frontier, U.S. NEWS &
WORLD REP., Jan. 17, 1994, at 38. The full quote is, “There is nothing more painful for
me at this stage in my life than to walk down the street and hear footsteps and start to
think about robbery and then look around and see it's somebody white and feel relieved. How humiliating.” Id.
6 D. Marvin Jones, We’re All Stuck Here For a While: Law and the Social Construction of the Black Male, 24 J. CONTEMP. L. 35, 37 (1998).
7 Emmet Till was a black Chicago boy who, in 1955, went to Mississippi to
visit his relatives. Allegedly he whistled at a white woman. Subsequently, he was
lynched. In the case of Emmet Till lynching took the form of being garroted with
barbed wire, doused with gasoline and set alight. The picture of his mutilated body was
prominently displayed by Jet magazine. The lynching of Emmett Till is the kind of
story that crystallizes the larger narrative of persecution of black men to maintain
racial hierarchy. For a detailed account of the Emmett Till story see STEPHEN J.
WHITFIELD, A DEATH IN THE DELTA: THE STORY OF EMMETT TILL (1988).
8 The Scottsboro boys were a group of nine black men charged with rape in
Alabama. The women the men were accused of raping were later revealed to be prostitutes. The charge of rape followed a fight in which a group of white youths lost. The
charges were false. The black youths were convicted in a trial in which they had no
counsel. They spent ten years in jail before the Supreme Court reversed their convictions because of this lack of counsel. See Powell v. Alabama, 287 U.S. 45 (1932). For
more detail on the story of the Scottsboro boys see generally DAN T. CARTER,
SCOTTSBORO: A TRAGEDY OF THE AMERICAN SOUTH (1969).
9 Here I refer not to a particular article but to the body of thought that Winter’s work represents. The relationship that Winter drew between law and cognitive
structures linked to language creates an angle of vision to understand the law in new
ways. See, e.g., Steven L. Winter, The Metaphor of Standing and the Problem of SelfGovernance, 40 STAN. L. REV . 1371 (1988).
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ping, which located critical intersections between law and cognitive psychology, has informed my own.
As Steve might be paraphrased to say, law is not freestanding. Legal doctrine rests on certain shared assumptions
about meaning. I would refer to these assumptions as a par adigm.10 In its simplest terms a, paradigm is a model. But by
paradigm I mean something closer to a pre-existing conceptual
image, which is always in the background. Thus, as Thomas
Kuhn has written, our perception of the world is not separate
from our pontifical images of it:
Something like a paradigm is prerequisite to perception itself. What
a man sees depends both upon what he looks at and also upon what
his previous visual-conceptual experience has taught him to see. In
the absence of such training there can only be, in William James’s
phrase, “a blooming’ buzzing’ confusion.” 11
The thrust of Steve’s work has been to interrogate the
paradigm of legal thought, to challenge its pretensions, its arrogance. He locates it outside of the realm of “pure reason” in
the pre-rational or antirational realm of language and cognition. I am interested in interrogating paradigms too. The par adigm I want to interrogate is the paradigm of race.
In legal discourse, race is posited as a fact. It is pre10 Professor Winter in his early work refers to these cognitive structures as
Idealized Cognitive Models. See Winter, supra note 9, at 1385. Listen to Winter as he
explains,
What explains this phenomenon is the notion that categories have an
internal structure which produces these perceptions of best examples.
The claim is that categories are structured by means of idealized cognitive models–culturally shared “theories” of how to organize some
portion of our experience. These models may be organized in terms of
image- schemata like the source-path-goal schema or in terms of a
group of related propositions grounded in a physical/cultural exper ience. An example is the stereotypical conceptualization of “mother” by
means of an idealized cognitive model that assumes natural childbirth
by a woman who is married to the biological father, and who is also
the primary nurturer and full- time caretaker of the child. Women who
fit this idealized cognitive model are prototypical “mothers” and are
referred to as such. But no prototypical mothers are marked as such
by the linguistic conventions resulting from this model: They are
stepmothers, surrogate mothers, biological mothers, foster mothers,
working mothers, or unwed mothers.
Id.
11 THOMAS S. K UHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 113 (2d ed.
1970).
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WE MUST BE HUNTERS OF MEANING
1075
sented as something objective, natural, and inevitable. Recall,
for example, in Plessy v. Ferguson12 how the Court premised
the reasonableness of segregation on the fact that race was a
natural category:
If the two races are to meet upon terms of social equality, it must be
the result of natural affinities, a mutual appreciation of each other’s
merits and a voluntary consent of individuals. . . . Legislation is
powerless to eradicate racial instincts or to abolish distinctions
based upon physical differences, and the attempt to do so can only
result in accentuating the difficulties of the present situation.13
Plessy was, in a real sense, the point where the modern
discourse about civil rights begins. It starts with the notion of
segregation as a morally corrupt regime based on individual
prejudice. This paradigm of individual prejudice visualizes the
problem as one involving in Gordon Allport’s terms, irrational
assumptions based on race.14 This paradigm is given content by
our historical experience and by the narrative which emerges
from the civil rights struggle, which followed Plessy and culminated in the 1950s.
This is the story of the civil rights movement. It is the
story of America’s moral transformation. It is a story of a
Manichean struggle between the forces of darkness and the
forces of light: of Americans armed with fundamental American values triumphing over white extremists. In the story,
southern whites turned water hoses on blacks, lynched black
men, and burned crosses on the lawn of black families as a
warning to those who would challenge the regime of racial
caste. According to this story, the whites who engaged in these
acts of hostility were extremists and by definition abnormal:
they were “bad white people.”15 The climax of this drama occurs
when the good white people passed civil rights laws in the
1960s, in a definitive victory over the bad ones. Racism appears
12 163
U.S. 537 (1896).
Id. at 551.
14 Allport develops the hypothesis that racism is an irrational response to the
neutral fact of race. He goes on to hypothesize that these attitudes flourish in a social
environment of racial separation and ignorance. See G ORDON ALLPORT, THE NATURE OF
RACE PREDJUDICE 261- 81 (1954).
15 Alan Freeman, Legitimating Racial Discrimination Through AntiDiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV .
1049 (1978).
13
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in this story as something akin to sexual lust—a deviant impulse which good, normal white people repress but extremists,
bad people, give into. This Freudian notion—of racism as a deviant impulse—finds synergy with our sense of our own modernity: that we are grounded in scientific rationality.16 This
rationality is expressed not only in our investment in technology but in the rule of law, which is to say, today, “equal justice
under law.”
In my understanding, the wrong unit of inquiry is being
used: race is an artifact of culture. Plessy’s stigma flowed from
the racial hierarchy that segregation imposed in terms of jobs
and social privilege generally. Sitting in a separate railroad car
took on its meaning from this larger phenomenon of racial
caste. Race and discrimination can only be given meaning by
social practices, not individual decisionmaking:
[H]istory and the social milieu in which we are situated create the
significance of a biased decision. As such, discrimination cannot be
reduced to an isolated sequence of a wrongful state of mind leading
to an inequitable decision. . . . Genuine disparities may occur without an employer’s wrongful state of mind. More importantly, a single
employer with a wrongful state of mind cannot cause the stigma of
discrimination because discrimination can only be constituted by social practice and requires a social or historical dimension to exist.17
To the extent that race is a problem of stereotypical images embedded in language there is a dimension of “unconsciousness” but not in Freud’s sense.
It is wrong to think that the unconscious exists because of the existence of unconscious desire, of some obtuse . . . animalistic . . . desire
that rises up from the depths and has to lift itself to a higher level of
consciousness. Quite on the contrary, desire exists because there is
unconsciousness, that is to say, language, which escapes the subject .
. . and because there is always, on the level of language, something,
which is beyond consciousness. . . .
16 See BOAVENTURA DE SOUSA SANTOS , TOWARD A NEW COMMON SENSE : LAW ,
SCIENCE , AND POLITICS IN PARADIGMATIC TRANSITION (1995). Santos argues that modernity is held up by the binding of two opposites: institutions of “regulation” and institutions of “emancipation.” The emancipatory aspect of modernity is defined by the
impulse toward “rationality.” This emancipatory impulse is anchored by science, art,
and the rule of law.
17 D. Marvin Jones, The Death of the Employer: Image, Text, and Title VII, 45
VAND. L. REV . 349, 366 (1992).
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WE MUST BE HUNTERS OF MEANING
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[Furthermore,] [t]he . . . unconscious is therefore not so much the
dark inner reservoir of desire and instinct which used to be our image of the Freudian id, occasionally breaking into the realm of consciousness or insinuating its way there through the disguises of
dreams. Rather it is an absolute transparency, an order which is unconscious simply because it is infinitely vaster than our individual
minds, and because they owe their development to their positions
within it.18
Much has been written about race as a problem of coercive force, the realm of politics. I want to shift the focus to the
extent to which subordination is premised on consent.
The starting point in my redescription of race, which
was treated as fact both by the law and those, like Martin Luther King, who sought to change it,19 is to focus not on the morality of segregation but on the incoherence of its assumptions.
One tries in vain to locate the objective boundaries of race:
there are none. Race does not exist within the terrain of objectivity.
As Anthony Apia has noted, “the truth is there are no
races. . . . Talk of race is particularly distressing . . . for where
race works–it does so only at the price of biologizing what is . . .
ideology.”20 Stated another way:
What constitutes a race and how one recognizes a racial difference
are culturally determined. Whether two individuals regard themselves as of the same or of different races depends not on the degree
of similarity of their genetic material but on whether history tradition, and personal training and experiences have brought them to
regard themselves as belonging to the same group or to different
18
FREDERICK JAMESON, THE PRISON HOUSE OF LANGUAGE 137 1972) (empha-
sis added).
19 I still remember King’s speech about how painful it was for him to “explain”
to his daughter that the reason she could not go to an amusement park (Funtown) is
because she is black: “But when you have seen vicious mobs lynch your mothers and
fathers at will…when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can’t go to the
public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children…then
you will understand why it is difficult to wait.” Dr. Martin Luther King, Why We Can’t
Wait, Letter from the Birmingham Jail, Apr. 16, 1963, in A TESTAMENT OF HOPE
(James Washington ed., 1986).
20 Anthony Appiah, The Uncompleted Argument: Dubois and the Illusion of
Race, in HENRY LOUIS G ATES, RACE , WRITING AND DIFFERENCE 21 (1986).
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groups. Since all human beings are of one species and since all populations tend to merge when they exist in contact, group differentiation will be based on cultural behavior and not genetic differences.21
It is elementary of critical theory to see that race is a
construct. In Steve’s early work he wrote a great deal about
metaphor as a cognitive structure.22 I have stood on Steve’s
shoulders in developing my understanding of race. In my early
work I went on to identify race not merely as construct or fiction but as a metaphor.
My use of the word metaphor combines two concepts.
The first I trace to Aristotle. Aristotle’s deceptively simple
characterization was that metaphor consists of giving the thing
a name that belongs to something else; the transference being
either from genus to species, or from species to genus, or from
species to species or on grounds of analogy.23 As such, all metaphors are on their face what Gilbert Ryle called category mistakes.24 The significance of this seeming mistake is that metaphors have as their ambition a redescription of reality.
In giving to the genus the name of species . . . and vice versa one simultaneously recognizes and transgresses the logical structure of
language. . . . [I]t involves taking one thing for another by a sort of
calculated error. . . . To affect just one word, the metaphor has to
disturb a whole network by means of an aberrant attribution. . . .
[M]etaphor destroys an order only to invent a new one: and the category mistake is nothing but the complement of the language of discovery. . . . [M]etaphor bears information because it “redescribes reality.”25
Race is also a metaphor in the sense used by George
Lakoff.26 For Lakoff, a metaphor is a linguistic structure which
allows us to make sense of our conceptual universe by providing experiential referent for abstract notions.27 Thus, we often
speak of carrying one’s burden in legal argument. A burden is
21
JAMES C. KING, THE BIOLOGY OF RACE 155-57 (1981).
See generally Winter, supra note 9; see also Steven L. Winter, Indeterminancy and Incommensurability in Constitutional Law, 78 CAL. L. REV . 1441 (1990).
23 PAUL RICOEUR, THE RULE OF METAPHOR 21-22 (R. Czerny tran., 1975).
24 See GILBERT RYLE , THE CONCEPT OF MIND 16 (1949).
25 RICOEUR, supra note 23, at 21-22.
26 See GEORGE LAKOFF & MARK JOHNSON, WOMEN, FIRE AND DANGEROUS
THINGS: WHAT CATEGORIES REVEAL ABOUT THE MIND 113 (1987).
27 Id.
22
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WE MUST BE HUNTERS OF MEANING
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something one carries along a road. The image of a road provides a visual image to anchor conceptual structures.
In both concepts the metaphor serves a cognitive role
mediating between, anchoring, and giving content to the concepts of our imagination.
Race is a metaphor in the sense that it links the physical body with a racial body, which exists only in the realm of
cultural meaning. The difficulty is that, through this mechanism of metaphor we conflate the real with the cultural image.
Thus, in my early work I located the problem of race
within the realm of language and metaphor. Professor Winter
has attempted to shift the paradigm from law as a problem of
reason to the problem of discerning the interior architecture of
the reasoning process—a cognitive structure. Interestingly, our
racial discourse has proceeded as if the problem were a failure
of individuals to reason properly. For me, what is interior to
the problem of racial subordination is a set of meanings crystallized as images, which operate as windows on the social
world, windows operating for both oppressor, and oppressed.28
II.
CLAIMS OF KNOWLEDGE
To understand the shift that is necessary, let me share
a few stories. The stories are drawn from my upcoming book
Race, Sex, and Suspicion. Let us begin with the claim that race
is a problem of faulty thinking or irrationality. On the con28
MY APPROACH
What is Race: A signifying practice
and a social practice in which meaning and societal dysfunction are mutually entailed. Race may be used as a
verb: People are raced.
Unit of Inquiry: Culture.
Source of Difficulty: Language.
Nature of Difficulty: Cognitive difficulty.
CONVENTIONAL LEGAL THEORY
A label real or constructed.
The individual.
Irrational thinking or bigoted
thoughts or both generally (some
theorists give this a materialist spin
tracing racism to an ideology in the
service of political-economic or
legal order).
A moral problem.
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trary, I argue the problem has to do with claims of knowledge.
The classic instance is the racial profile. Let me begin my first
story.
A.
The Story of Henry Bibb29
In 1837, Henry Bibb boldly escaped from a plantation in
Kentucky and crossed the border into Canada.30 Soon after
Bibb returned in disguise—he put on false whiskers—to get his
wife and child. Once back in the “occupied territory” of slavocratic Kentucky he took work digging a cellar for “the good
Lady where I was stopping.”31 Of course the whiskers did not
hide who he was. In a more recent context, O.J. Simpson allegedly committed the murders wearing a sailor’s watch cap and a
blue blazer with gold buttons. Johnny Cochran, ridiculing the
suggestion that such a costume could conceal O.J. in all his
celebrity exclaimed, “This is no disguise!” An ante-bellum
Johnnie Cochran might have exclaimed the same thing about
Henry Bibb’s efforts to mask his own identity. The slave catchers soon “recognized” Bibb and, treating him like a nineteenth
century public enemy number one, surrounded the house in
force and arrested him at gunpoint. In the story, he poignantly
asks his capturers, “What crime had I committed.”32 His question, which went unanswered, still echoes down the corridors of
history.
Bibb, in asking his question invoked Lockean33 notions
of the natural rights. Locke postulated that all men are by nature free and enter society with natural rights. Jefferson’s notion that “all men are endowed by their creator with an inalienable rights to liberty” imported this natural law thesis into
the American scene. The social contract which emerges from
this confers the right to liberty–to freedom subject to the condition that the individual does not break the law. Bibb implicitly
29 Excerpt from D. Marvin Jones, Crimes of Identity: The Birth of the Racial
Profile, in RACE , SEX, AND SUSPICION (forthcoming 2002) (unpublished manuscript on
file with author).
30 PUTTIN O N O L’ MASSA 81-87 (Gilbert Osofsky ed., 1969).
31 Id. at 90.
32 Id. at 91.
33 See JOHN LOCKE , TWO TREATISES ON GOVERNMENT (Peter Laslett ed., 1967)
(1689).
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invoked both Jefferson and Locke, both natural law and the
social contract, in his question to his abductors. If he is a man,
and if all men by nature are free, then he Bibb was also free—
unless he had done something wrong. The issue becomes what
is Bibb’s crime? He is innocent not merely of the crime of har ming others, he is innocent of being the native or savage associated with slavery: by the very act of thinking and writing. Yet
despite his radical innocence he is hunted and chained as a
prisoner and criminal.
Bibb claimed his freedom by rhetorically situating himself within the circle formed by the liberal narrative not merely
of the American Revolution but of the enlightenment itself—a
narrative of individual autonomy and freedom. This story of
the enlightenment is eclipsed by an older story. This was the
narrative of racial essences, a narrative which was given voice
by Justice Taney in Dred Scott:
They had for more than a century before been regarded as beings of
an inferior order, and altogether unfit to associate with the white
race, either in social or political relations; and so far inferior, that
they had no rights which the white man was bound to respect; and
that the Negro might justly and lawfully be reduced to slavery for
his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.
This opinion was at that time fixed and universal in the civilized
portion of the white race. It was regarded as an axiom in morals as
well as in politics, which no one thought of disputing, or supposed to
be open to dispute; and men in every grade and position in society
daily and habitually acted upon it in their private pursuits, as well
as in matters of public concern, without doubting for a moment the
correctness of this opinion. 34
As I read Taney’s decision, the social contract ran only
to those who were white. Blacks were not only persons without
rights to a social contract; they were not persons at all. Bibb, in
invoking the notion of “innocence,” crossed the moral line between subject and object, self and other. In the mirror of his
imagination, Bibb saw himself as a free man unjustly chained.
Bibb simply posited that he was free. In so doing, in his mind,
he tore away the veil of race. But this subjective image was as
distant from objective reality as heaven was from the terrain of
the plantation. The dreamer physically remained imprisoned
34
Dred Scott v. Sanford, 60 U.S. 393, 407 (1856).
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behind the iron curtain of the slavery—behind the veil. The
slave was forced to recognize that regardless of what moral
transformation he might achieve, no matter how he came to
view himself, this did not affect his objective status. For the
slave, his identity was defined by how whites saw him. He was
both blessed and cursed by what W.E.B. Dubois calls a “double
consciousness.”35
The Negro is a seventh son born with a veil, and gifted with second
sight in this American world—a world which yields him no true selfconsciousness, but only lets him see himself through the revelation
of the other world. It is a peculiar sensation, this double consciousness, this sense of always . . . measuring one’s soul by the tape of a
world that looks on in amused contempt and pity. 36
Thus, as Sterling Bland writes, “African-Americans are
limited by the exterior manifestations of social response and
are thus able to . . . be seen only through the “revelation of the
other world.”37
The reason Bibb’s mask of whiskers does not work is because Bibb’s appearance as a threat was no t linked to any set
of features which could be seen—and therefore disguised. Bibb
is a criminal because of his race. Race, in turn, is not something that can be seen.
Race itself has never been seen by the naked eye. Beyond merely describing morphological characteristics, race38 refers to an amorphous
concept of difference between human “types.” What constitutes a
“type” and what constitutes a difference is contested territory and
for some refers to essences, for others to biology but always to a set
of abstract rules of recognition.39 These rules of recognition impose
35
DUBOIS, supra note 2, at 3.
Id.
37 STERLING LESTER BLAND, RUNAWAY SLAVE STORIES AND THEIR FICTIONS OF
SELF-CREATION 8 (2000).
38 The origins of the word race are unsure. As Wilton Krogman has written
It may be kin to the Czechrazs, referring to artery or blood, or Latin
generation or old French generace. It seems to trace back most directly
to Basque arraca or arraze, referring to male stud animal. It is also
found in the southern Spanish race, of Arabic derivation, meaning
head, or . . . In 1684 in France we find “especes ou races d’homme” in
the sense of referring to stem or family.
WILTON K ROGMAN, The Concept of Race, in THE SCIENCE OF MAN IN THE WORLD CRISIS
39 (Ralph Linton ed., 1945).
39 Although race originates in the ethos of culture we confront it as an authoritarian figure, much the same as we confront a statute or law. Of course, the level
36
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WE MUST BE HUNTERS OF MEANING
1083
upon perception a kind of grammar, commanding us, at the deep
level of how we see the world, to parse persons we encounter into different categories. Race is visualized not through actual observations
but through the minds eye, by “seeing” human populations as naturally, actually parsed into distinctive sub-groups. The lens through
which the meaning of race is seen to be illuminated and race “as a
fact” finally discerned is our sense of who we are. We actually see
race though our I/eye 40 or sense of identity, as an alternating image
of those who are like us, within our circle of community, and those
who are not.41
Race is an inference we make based on a variety of criteria
ranging from color to birth records. Race is a faceless prototype
of a racial other. Bibb matched the prototype regardless of how
he changed his features. He fit the profile.42
at which we confront race, the level of metaphor, is a level addressed to cognition. See
generally LAKOFF & JOHNSON, supra note 26. Lakoff and Johnson have shed much light
on how our conceptual world is linked to our perception and cognitive processes. The
linchpin of connection is what Lakoff and Johnson refer to as “metaphor.” Metaphor is
a linking together of an abstract thing with something we perceive or sense. Thus, we
derive a notion of argument in which we often speak of in terms of burdens from something we have seen, the image or metaphor of a path. Similarly, race as a metaphor, or
icancantation of metaphors is linked to something we have seen: blood and color. Race
works as metaphor by linking abstract ideas about human types with observations of
the human body, with something actually perceived. Again all this occurs at a cognitve
level. Law, on the other hand is explicitly addressed to the level of decisonmaking and
conscious thought. Nonetheless, the analogy is there and the term rules of recognition,
H. L. A. Hart’s phrase, see H.L.A. HART, THE CONCEPT OF LAW (1961), is helpful in
understanding the nature of legal rules is helpful to understanding race as a linguistic
one.
40 Ralph Ellison refers to this, after Thomas Aquinas, as the “inner eye,” the
“eye[ ] with which they look through their physical eyes upon reality.” Ralph Ellison,
THE INVISIBLE MAN 3 (1989). See also CORNEL WEST, PROPHETIC VISIONS 102 (1988)
(referring to the cognitive structure by which race is identified as “the eye of the mind,”
a conception of the faculty by which we ‘perceive’ the abstract he traces to the ancient
Greeks).
41 D. Marvin Jones, Darkness Made Visible, 82 G EO. L.J. 437, 449 (1993).
42 I would define a profile as a prototypical image of a criminal. By definition
there is a close kinship between profile and stereotype. The rhetoric of law enforcement
gives this stereotypical concept a scientific spin. As used by police a profile seems to
refer to a set of characteristics which are thought to function as predictors of criminality. These characteristics are of two kinds. As Charles Becton explains, “As a predictive
scheme the drug courier profile constitutes a hybridization of clinical and statistical
models.” Clinical predictions, based on the subjective judgments of experienced decision-makers, focus on the uniqueness of individuals. Statistical predictions rely on
“formulas that assign fixed weights to predetermined characteristics” of individuals.
Charles Becton, The Drug Courier Profile: “All seems infected that th’Infected Spy, As
All Seems Jaundiced to the Jaundic’d Eye,” 65 N.C. L. REV . 417 (1987).
These characteristics fall into four categories: environment, evasion, eccentricity, and earmark.
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This prototypical image, the image of the racial enemy,
however invisible to the naked eye is nonetheless visible in the
reactions of whites, mirrored in their fear, loathing and obsession with controlling him. It is this mask, the mask of the racial identity itself, and only this mask which the slave catchers
saw: “The stereotype—the mask—defined the African American as white Americans chose to see him; outside the mask he
was either invisible or threatening.”43
What indeed was Bibb’s crime? His crime is “who he is.”
“Who he is” is established by his appearance. His whiskers
could not hide either his race or his gender. Through the distorting gaze of slave society the simple fact that Bibb was a
black male—free—established “probable cause.” This is not
probable cause based on what an individual has done. This is
probable cause imposed on the basis of what an individual
might do.
The notion of the “gaze” is familiar to anyone who has
seen old films. Take the Tarzan series, for example.44 In the
Tarzan films black savages, with bones through their noses,
capture genteel British explorers, truss and put them in the
cooking pot. In the nick of time, Tarzan, a white man raised by
apes comes to the rescue. Leading a herd of elephants as a surrogate for the cavalry, Tarzan arrives to save the innocent
white people. In portraying the Africans as savage aggressors
and the British as innocents the Tarzan stories turn upside
down the moral reality of colonialism: By portraying the British—and Tarzan—as a civilizing force in an uncivilized jungle,
the films implicitly justifies colonialism. One’s enjoyment of the
film depends upon taking the racial perspective of the colonizer. This racial perspective, and the mechanisms associated
with it that make it seem natural, constitute the “dominant
Environment factors are those from which DEA agents can infer access
to drug distributors or users for example, traveling between source cities and use cities. Evasion factors are those from which DEA agents
can infer an attempt to avoid surveillance or conceal identity for example, paying for a ticket with cash and checking no baggage. Eccentricity factors are those from which DEA agents can infer a state of
emotional arousal–for example, rapid breathing and shaky hands.
Earmark factors are related to status or personal appearance characteristics of the drug courier–for example, age, race, and gender.
Id. at 438.
43 Id. at 12.
44 See EDGAR RICE BURROUGHS , TARZAN OF THE APES (1914).
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gaze.”
Bibb as a free black male appears to the “dominant
gaze” as dangerous and evil as Tarzan’s natives. Bibb is seen
as a criminal because slave society needed psychologically to
see him this way: either in chains or as an enemy of the state.
For the Greeks, the image of otherness was the foreigner who was also a barbarian,45 for Foucault the image of
the other was the mad person,46 but for slave society the quintessential image of the other is the racial other, particularly
the black male. This racial other has always represented the
enemy to be subdued—much like a dangerous animal. As Vilo
Harle recognized, “The point is there are some Others who are
excluded from among us and are actually perceived in less human terms, below human beings, dangerous animals that can
and must be killed.”47 Only if the racial other is a dangerous
animal/criminal could slave society justify its cruel practices
and constant surveillance.
Racism is traditionally understood as irrational. On the
contrary, it is a perverse expression of rationality.
[R]acism is not simply a stupid hatred. It may be based on ignorance
that breeds hatred, but it is every bit as dependant upon a form of
knowledge. That knowledge, sometimes wittingly used, sometimes
unwittingly, operates to reinforce the fear and hatred of others by
providing rationales for hierarchizing differences.48
Thus, our dusty old orthodoxy about race holds that stereotypes are bad. My point is that the fabric of racial identity is
itself woven from stereotypical images.
This framework helps to explain the failure of our civil
rights discourse. The project of racial integration has proceeded
on the assumption that differences between the races are environmental and that if blacks could have access to education
they could assimilate into the mainstream. In messianic fashion, the integration strategy assumes that the burden was on
blacks to lift themselves up by their bootstraps and enter great
45 VILHO HARLE , THE ENEMY WITH A THOUSAND
THE O THER IN WESTERN POLITICAL THOUGHT (2000).
46
FACES: THE TRADITION OF
Id.
Id. at 11.
48 THOMAS DUMM, THE NEW ENCLOSURES , IN READING RODNEY KING:
READING URBAN UPRISING (Robert Gooding Williams ed., 1993).
47
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America. I would argue that our basic images and notions of
race police the border between America and Africans. Let me
tell another story.
B.
Guess Who’s Coming to Dinner49
In Guess Who’s Coming to Dinner50 Sidney Poitier, the
Denzel Washington of his day, portrays a black male who attempts to break through the barbed wire of an age old racial
taboo: he wishes to marry a white woman.
Sidney is a young black doctor in love with the willful,
colorblind daughter of an old school white businessman
(Spencer Tracy). Wearing a Brooks Brothers suit and a smile
as his armor, Sidney comes to the white family’s dinner table
both as guest and as would be harbinger of the modern age of
race relations.
The film thematizes not merely the moral anxiety over
the sexual designs of black males. It posed, dramatically, the
social and political question of the place of the black male in
the new world order following the dismantling—officially at
least—of segregation and the racial ideology on which it rested.
Sidney’s black male is affluent, culturally hip, and
doomed. Striving to be American and black, a rugged individualist and a representative of his race, Sidney lives split between worlds, and split inside himself.
Sidney is, as the black male in the white mind always
is, an abstraction: in this case the embodiment of a modern
liberalism. This liberalism, rising like a phoenix out of the
ashes of World War II—a war against Nazism—dreamed in the
colors of the rainbow. This new liberalism rejected the idea
that race in a biological sense determined who one was.51 The
popular liberal impulse, released by the catharsis of war, converged with other streams. Anthropologists like Franz Boaz
49 D. Marvin Jones, Guess Who’s Coming to Dinner, in RACE , SEX AND
SUSPICION 49 (forthcoming 2002).
50 Guess Who’s Coming to Dinner (Columbia Pictures 1967).
51 As O MI and WINANT write: “With the advent of the vaguely egalitarian (racially speaking) vision of the new deal and of the anti-fascism of World War II . . . the
ethnic paradigm definitively dislodged the biologic view in what appeared to be a triumph of liberalism.” MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE
UNITED STATES 14 (1986).
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and Otto Kleinberg began unbuilding the myth that intelligence and other mental characteristics had anything to do with
heredity: “Culture not racial inheritance was the principle
shaping force in determining mental characteristics of a people.”52 Where classical sociology had attributed the poverty of
blacks to innate laziness and instability, E. Franklin Frazier,
and Charles Johnson, standing on the shoulders of W. E. B.
Dubois began to trace black economic inferiority to environmental causes involving racism. Of course the most pivotal
work here was that of Gunnar Myrdal, whose post-war bombshell of a book, An American Dilemma53 was cited in the Brown
v. Board of Education54 decision itself. Myrdal argues that the
practice of segregation was inconsistent with America’s own
creed and in effect was an obstacle in the road of America’s national destiny.
The historical moment of the Harlem renaissance was
nourished by and itself fed into this liberal impulse. As Toni
Morrison wrote in Playing in the Dark,55 Daniel DeFoe’s Robinson Crusoe was “the man” because he had access to language.
Man Friday, who lacks access to language and cannot speak,
never becomes fully a person, hence he is “Man Friday.”
Through the writers of the Harlem renaissance, blacks had
begun to find their voice, radically transforming the image of
blacks as they transformed themselves through their art.
These streams of liberal thought converge on one point:
only culture, language, and shared values—varying like the
colors of the rainbow—define the boundaries of the American
community.56 These newfound streams of liberalism fed into a
larger river, the legitimating myth of America as a melting pot.
In a ritual of Americanization, Henry Ford had foreign
workers enter one end of a giant clay pot wearing their national costumes and come out the other end in American business suits.57 The talisman of belief in the American creed—in
52 See RICHARD K LUGER, SIMPLE JUSTICE 1975 (characterizing the conclusions
of FRANZ BOAZ, THE MIND OF PRIMITIVE MAN (1922)).
53 G UNNAR MYRDHAL, AN AMERICAN DILEMMA: THE NEGRO AND THE PROBLEM
OF AMERICAN DEMOCRACY (1944).
54 347 U.S. 483 (1954).
55 TONI MORRISON, PLAYING IN THE DARK: WHITENESS AND THE LITERARY
IMAGINATION (1992).
56 Id. at 14.
57 Joe E. Fagin, Old Poison In New Bottles, in IMMIGRANTS O UT! THE NEW
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this case the creed of capitalism symbolized by the business
suit—had given them a new identity as Americans.
If the black male is always merely a product of the
white society’s gaze, Sidney is its product as it looks at the
black male through the lens of the melting pot story. Through
this lens the image of Sidney looks “right.” He is well dressed,
meticulously pronouncing all the endings on his words, trying
heroically in his behavior to overawe the degraded image of his
phenotype. Sidney is a doctor, who happens to be a black male.
Thus, it was not Sidney’s race or gender that defined him. It
was the values he had chosen as reflected by his Ivy League
degrees and his Brooks Brothers suit.
In these terms, Sidney’s character personified a social
proposition: race was like a national costume and could be
taken off and exchanged for an American identity. It was
axiomatic of cold war liberalism—this was the essence of the
Brown decision, I think—that not only was the assimilation of
blacks possible, but a moral imperative. As Myrdal wrote in his
classic An American Dilemma: “If America in actual practice
could show the world a progressive trend by which the Negro
finally became integrated into modern democracy, all mankind
would be given faith again—it would have reason to believe
that peace, progress and order are feasible.”58 Within this retelling of the melting pot story the immigrant analogy was implicit: “there are no essential differences—in relation to the
larger society—between the third world or racial minorities
and the European ethnic groups.”59
It is precisely this story of the melting pot reinvented as
a “table” that animated Dr. King’s appeal: “I have a dream that
one day on the red hills of Georgia the sons of former slaves
and the sons of former slaveholders will be able to sit down at
the table of brotherhood.”60
But there is a split here. Along the axis of race the split
NATIVSIM AND THE ANTI- IMMIGRANT IMPULSE IN THE UNITED STATES 26 (Juan Perea
ed., 1997).
58 See generally MYRDAL, supra note 53.
59 Id.
60 Martin Luther King, Jr., I Have A Dream (Aug. 28, 1963), in PENGUIN BOOK
OF TWENTIETH CENTURY SPEECHES 330 (Brian McArthur ed., 1992).
2002]
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is between what Myrdal referred to as the American belief in
equality and its practice. It flounders simultaneously on the
axis of American identity itself: between two readings of the
American story. One is the story of the America as a great e
pluribus unum, out of many one, the America of Dr. King, of
Langston Hughes in his poem “I, Too:”
I, too, sing America/
I am the darker brother/…
I, too, am America.61
The other story of America is the one expressed in Dred
Scott,62 holding that a black man was incapable of becoming an
American citizen, the America of the Chinese Exclusion Act,
the America of the World War II internment of the Japanese. It
was this story which Henry Pratt Fairchild, past president of
the American Sociological Association, expressed in 1926 when
he said: “If America is to remain a stable nation, it must continue a white man’s country for an indefinite period to come.”63
This story of America as a white man’s country ironically coexisted with efforts to expand the American myth to blacks.
The split between these two stories about American
identity—America as the land of the free and America as the
land for white people—signifies a deeper psychological conflict:
between modern liberalism and the needs of whites to claim
racial superiority. As Dubois pointed out in Black Reconstruction, the wages of whiteness consisted of privileges with respect
to jobs, and social status.64 The legal and intellectual orthodoxy
of blacks as just another ethnic group floundered on deeply engrained cultural norms that required that white skin remain a
badge of privilege.
Thus through the colorblind lens of the film’s orthodoxy,
Sidney comes to dinner as an American: the very fact that he
does so is a living witness that in America all can sit at the
family table so long as they have the right moral credentials.
But the orthodoxy of liberal intellectuals does not dissolve ide61
Id.
Dred Scott v. Sandford, 60 U.S. 393 (1856).
63 Fagin, supra note 57, at 26.
64 See WILLIAM EDWARD BURGHARDT DUBOIS, BLACK RECONSTRUCTION IN
AMERICA 700 (1962).
62
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ology that has been deeply entrenched.
Antonio Gramsci in his Prison Notebooks 65 observed that
after the Italians had overthrown the official apparatus of fascism he discovered the government was only an outer ditch and
that behind it the massive ideology of fascism was left untouched. There is a similar story to be told about the overthrow
of the regime of segregation in the United States.
Thus, whites in the South openly, and many whites in
the North covertly, never accepted the premise that blacks
were just another ethnic group. As late as 1991 a New York
Times poll found that 66% of whites were opposed to a relative
marrying a black person.66 The meaning of segregation as
Gunnar pointed out in his post-war classic, was that while
European groups could be assimilated the blacks could not.67
The anti-immigrant story of America as a white man’s country
not only continued to resonate but also was knotted together
with the anti-black story of “Negro inferiority.”
“We Americans seem to have blundered about in our
history with two clumsy contrivances strapped to our backs,
unreconciled and weighty: our democratic traditions and
race.”68 The synergy between these two stories splits Sidney in
two. Sidney’s project was to transform himself into an American in order to transform himself into a man: no longer a black
man but simply a man. He sought finally to be whole, no longer
merely a body or a pair of hands. Instead he is split in two. One
of him remains in the world of the colorless individual, one of
him does not. He lives in two worlds. In the world of liberal
theory, a world that extends to court opinions, to official policy,
to speeches by Presidents, to the conscious thoughts of enlightened people, Sidney is simply an individual, an American.
But, Sidney also lives in a world of private thoughts, a
world in which the majority of white people still do not want
their relative to marry one of “them.” In this world America is
still “white man’s country.” Here Sidney’s visual image leads to
visceral reaction both for whites and the black male who seeks
65 See ANTONIO G RAMSCI , SELECTIONS FROM THE PRISON NOTEBOOKS OF
ANTONIO G RAMSCI (Quintin Hoare & Geoffrey Nowell Smith eds. and trans., 1971).
66 ELLIS COSE, COLOR-BLIND: SEEING BEYOND RACE IN A RACE O BSESSED
WORLD 8 (1997).
67 MYRDAL, supra note 53, at 928.
68 Gerald Early, Performance and Reality: Race and Sports and the Modern
World, THE NATION, Aug. 10, 1998, at 11.
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WE MUST BE HUNTERS OF MEANING
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to “pass”:
Look, a Negro!”
Mama, see the Negro! I’m frightened! Frightened!” . . .
I could no longer laugh, because I already knew that there
were legends, stories, history . . . Then assailed at various points, the
corporeal schema crumbled, its place taken by a racial epidermal
schema. . . . I moved toward the other . . . and the evanescent other,
hostile but not opaque, transparent, not there, disappeared. Nausea.
...
I was responsible at the same time for my body, for my race,
my ancestors. . . .
I discovered my blackness and I was battered down by Tomtoms, cannibalism, intellectual deficiency, fetischism, racial defects,
slave-ships, and above all else, above all: “sho good eatin.”69
From this perspective, Sidney at Spencer Tracy’s dinner table,
surrounded by Spencer Tracy’s white wife, white daughter,
white Irish Catholic priest, looks “out of place.” He is, if not a
fly in the buttermilk, still a stranger in the village, much like
James Baldwin, if we can picture him, when he visited the
Alps.70 He is a foreigner.
The black male carries his border with him, in his skin.
Neither place of birth, nor acts of Congress change his citize nship. He remains the central character in a story about how
some groups are simply incapable of being truly American.
Jean Paul Sartre provides an analogy for us.71 Sartre noted
that despite years of residence and significant economic and
cultural achievements, Jews remain “the unassimilated at the
very heart of [French] society”:
[The Jew] accepts the society around him, he joins the game and he
conforms to all the ceremonies, dancing with the others the dance of
respectability. Besides, he is nobody’s slave; he is a free citizen under a regime that allows free competition; he is forbidden no social
dignity, no office of the state. He may be decorated with the ribbon of
the Legion of Honor; he may become a great lawyer or a cabinet minister. But at the very moment when he reaches the summits of legal
society, another society–amorphous, diffused, and omnipresent–
appears before him as if in brief flashes of lightning and refuses to
take him in. . . . [H]e never encounters any particular resistance;
69
70
FRANTZ FANON, BLACK SKIN, WHITE MASKS 112 (1967).
James Baldwin, Stranger in the Village, in THE PRICE OF THE TICKET 79
71
JEAN PAUL SARTRE , ANTI -SEMITE AND JEW 83 (G. Becker trans., 1948).
(1985).
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people seem, rather, to be in flight before him; an impalpable chasm
widens out, and, above all, an invisible chemistry devaluates all he
touches. . . . Everything is accessible to him, and yet he possesses
72
nothing; for, he is told, what one possesses is not to be bought.
As Frantz Fanon has noted the situation of blacks in a
white society is analogous, but worse: “[T]he Jew can be unknown in his Jewishness . . . . His actions, his behavior is the
final determinant. He is a white man, and . . . can sometimes
go unnoticed. [But] I am the slave not of the ‘idea’ that others
have of me but of my own appearance.”73 No matter where he is
born the black male is an alien. He is alien not in the language
he speaks, perhaps not in the values he holds in his heart. He
is alien in terms of his mythic essence: his incorrigible sexuality, his propensity for chaos.
Similarly, our prototypical image of race operates as a
lens, which intercepts the person of color precisely at the point
at which s/he seeks to interrogate the dominant discourse. The
same racial boundaries, which demarcated separate railroad
cars for blacks and whites, demarcate separate space for blacks
and white scholars to participate in discourse. Let me explain
what I mean again through the agency of a story.
In 1839, Spanish slavers herd a group of kidnapped Africans aboard the schooner Amistad, bound from Havana, Cuba
to another Cuban Port, Puerto Principe.74 Miraculously, the
Africans escape their bonds. Led by the now famous Cinque75
they steal long bladed sugar cane knives and take control of
the very ship in which they were held as cargo.76 But why did
Cinque fight? Slavery involved the uprooting of indigenous
people from family, soil, and culture. It was not merely an act
of physical brutality, but a process of systematically erasing
the slave as an African or even a person at all. The hold of the
slave ship where hapless Africans were laid spoon fashion in
blood and filth, was the moral opposite of the womb: from the
72
Id.
FANON, supra note 69, at 115.
74 CHRISTOPHER MARTIN, THE AMISTAD AFFAIR 35-36 (1970).
75 Cinque would appear to be an Anglicization of Joseph Cinquez, the name
the Spanish slavers gave to the African known as Sinbe. Id. at 32. Reluctantly I use
Cinque’s slave name only because it is the name popular culture has inextricably associated with the historical African person of the story.
76 See generally id.
73
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WE MUST BE HUNTERS OF MEANING
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belly of the slave ship nothing human emerged.77 What
emerged was received as a slave, who by definition was
stripped of everything that counted as human identity.78 Henry
Louis Gates tells a story about a slave who was asked about his
“self.” The slave replied, “I isn’t go t no self.”79 As I see him,
Cinque fought to cross back over a line that separated not only
home and alien territory, freedom and oppression, but also the
line between having a name—a sense of who one is—and being
nameless. In a sense Cinque fought to keep not only his body
but also his “self” from being stolen, lost, or erased.
Although the Africans wrest the power over the ship,
they lack the navigational skills to find their way home. Sparing and later trusting a Spanish navigator named Montes80
who promptly tricks them by sailing East by day and North or
West by night, zigzagging up the American coast.
Objectively, Cinque’s struggle resonated in terms of
values Americans had inscribed in blood into their own story of
origins. But eventually these Patrick Henry-like rebels landed
on Montauk Point, Long Island.81 Of course, Cinque and thirtyeight surviving Africans were promptly captured and indicted
for murder.82 Although the indictments were later dismissed,
the Africans were still held to determine whethe r or not they
were properly denominated as cargo or people.
In the Steven Spielberg film83 which attempts to retell
this story, a venerable American sage, John Quincy Adams
comes to the rescue,—he rescues not only the Africans but the
American legal system from the indictment of history. Representing the Africans as kidnap victims who had a right to be
free by all necessary means. While the film provides a story77 See O RLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE
STUDY 7 (1982) (speaking of the gulf between the slave and the community of Christians, and civilized persons: “[G]radually there emerged, however, something new in
the conception of the black servant: the view that he did not belong to the same community of Christian, civilized Europeans”).
78 K ENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTEBELLUM SOUTH 109-24 (1956); WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN
ATTITUDES TOWARD THE NEGRO, 1550-1812 (1968).
79 HENRY LOUIS G ATES , RACE , WRITING AND DIFFERENCE (1985).
80 WILLIAM O WENS, SLAVE MUTINY 71-110 (1953).
81 MARTIN, supra note 74, at 52-53.
82 Id. at 60.
83 AMISTAD (DreamWorks 1998).
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book ending, with Cinque clothed in white robes of innocence
returning to his native shores, the return home was not quite
so simple a proposition for the Africans. Although they are
freed by a Supreme Court decision—that affirmed dryly only
that they were free Negroes and not slaves84—the Africans do
not go home for many months. This is where Spielberg’s story
trails off. In order to raise money for the voyage back to what is
now Sierra Leone, Cinque and the others must work. He does
this in part by giving speeches in the Mende language, by doing tricks, and by presenting himself to be gawked at much like
an animal in a menagerie or zoo.85
Throughout the story, Cinque’s every act is seen
through a lens. It is this lens, which refracts Cinque’s quintessentially human act of rebellion into an act of murder for which
he is indicted. Through this lens Cinque is not and never becomes an individual endowed with inalienable rights, but appears as a slave who killed his master. Cinque places himself
squarely within the circle of the dominant majority’s stereotypes, doing tricks, performing as and conforming to a reverse
image of him, in order to make money. As Cinque and the other
Africans were placed on display in a church in Farmington by
their abolitionist “friends,” “[m]others held tightly to their babies—making sure they would never become tempting morsels
for tattooed cannibals.”86 In performing as he does, it is an interesting question whether Cinque trades for money the very
quality of identity that he fought originally to retain. We are
free today of the curse of slavery, but in what sense are the
performances of black scholars free of the curse of Cinque.
What are the implications of Steve Winter being right;
84 United States v. Amistad, 40 U.S. 518, 595 (1841). The Supreme Court orders the Africans freed in a surgically precise opinion that affirmed the rights of the
kidnapped Africans under a particular treaty without touching the moral, or international human rights issues profoundly intertwined in the facts of the case. That court
opinion turns on the formal distinction between slave and free Negro, and fails to reach
the issue either the morality or criminality of the treatment of the Africans themselves.
It is also a most important consideration in the present case, which
ought not to be lost sight of, that, supposing these African negroes not
to be slaves, but kidnapped, and free negroes, the treaty with Spain
cannot be obligatory upon them; and the United States are bound to
respect their rights as much as those of Spanish subjects.
Id.
85 See MARTIN, supra note 74, at 208-10; OWENS , supra note 80, at 291-93.
86 OWENS , supra note 80, at 288.
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WE MUST BE HUNTERS OF MEANING
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that we can never separate what we perceive from the prototypical images we bring to the process of perception. How do we
expose the trope of identity from behind the screen of prototypical—and tropological —images of race. How do we enter
discourse, much less challenge power relationships when before we write, before we stand up to speak, these caricatured
images of racial identity proceed us as much as they proceeded
Cinque. Henry Louis Gates poses the question eloquently: “Can
writing, the very difference it makes and marks, mask the
blackness of the face that addresses the text of Western letters,
in a voice that speaks English, in an idiom that contains an
irreducible element of cultural difference that shall always
separate the white voice from the black.”87
I wonder.
87 HENRY LOUIS G ATES, Writing, Race, and the Difference It Makes, in LOOSE
CANONS 67 (1992).
FREEDOM AND CONSTRAINT IN ADJUDICATION:
A LOOK THROUGH THE LENS OF
COGNITIVE PSYCHOLOGY∗
Dan Simon†
INTRODUCTION
One of the most apparent benefits of A Clearing In The
Forest: Law, Life, and Mind is the wealth of insights that
emerge from its novel introduction of cognitive science as the
prism through which to analyze law. This tour de force of the
interrelationship between human cognition and the legal system settles and redefines some old questions, as it spurs new
ones. Throughout the book, Steven Winter presses the vital
and oft-ignored point that law is, and cannot be anything but,
the creation of human minds; legal materials do not answer
legal questions, people do.1 To better understand the legal system, we are advised to relax the conventional fascination with
what the law is or should be, and start examining more seriously (inter alia, empirically) how we do what we do when we
engage in legal thinking. This is a shift in focus away from legal and theoretical metastructures (or the lack thereof) to the
cognitive and cultural infrastructures that facilitate the creation and operation of law.2
∗
©2002 Dan Simon. All Rights Reserved.
† Associate Professor, University of Southern California Law School. I thank
the participants of this conference for their helpful comments. Thanks go also to Ron
Garet, Keith Holyoak, Tom Lyon, and Dan Krawczyk, to my research assistants Dave
Shraga and Daniel Weinstein, and to the diligent staff at the library of USC Law
School. This research was supported by NSF grants SES-0080424 and SES-0080375.
1 STEVEN L. WINTER, A CLEARING IN THE FOREST: LAW , LIFE , AND MIND 153,
317 (2001).
2 Id. at 3, 11.
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A Clearing In The Forest devotes special attention to the
question of freedom and constraint in adjudication, offering
both critical and constructive headways in this perennially befuddling conundrum. Foremost, the cognitive perspective demonstrates the infeasibility of strong forms of rationality that
dominate much of legal thinking. Legal reasoning cannot be
objective, literal, linear, propositional or hierarchical, nor can it
be the product of top-down reasoning. This “rationalist
model”3—the book’s principal, but by no means only, foil—does
not capture the way the mind works and it does not correspond
to the types of legal questions that warrant serious attention.
However, Winter insists, repudiating the conventional model of
rationality is no reason to endorse its antithesis, radical indeterminacy. Thus Winter criticizes the “excluded middle” in legal scholarship,4 and attempts to pour content into this void.
His project aspires to free legal scholarship from the deadlock
of objectivist and subjectivist claims, striving instead towards
an understanding of law as a relatively regular, systematic
and, in some senses, predictable social practice. Judged from
this third position, legal reasoning is viewed as neither an instantiation of rationalism nor as an utter failure to measure up
to that untenable standard. Indeed, critical legal scholarship
fares no better under Winter than does Langdellian formalism.
In chapter 6 of A Clearing In The Forest, Winter offers a
re-conception of the debate over freedom and constraint in adjudication. He discusses a Supreme Court opinion in which the
majority concludes that a string of precedent “speaks with one
voice” while the dissent insists that the conclusion mischaracterizes the law.5 Winter criticizes these types of all-or-nothing
clashes as a malady of the judicial culture, a distortion borne
by the adherence to the model of rationalism. He argues that
this seemingly irreconcilable indeterminacy can be viewed as
more orderly and predictable through the lens of idealized cognitive models grounded in an experientially meaningful gestalt.6 While I disagree with Winter’s conceptualization of the
3
Id. at xiv, 43.
Id. at 158.
5 The case discussed is Lassiter v. Dep’t of Soc. Servs., 425 U.S. 18 (1980). The
case pertains to the right to appointed counsel in proceedings to terminate parental
rights.
6 WINTER, supra note 1, at 140-44.
4
2002]
THE LENS OF COGNITIVE PSYCHOLOGY
1099
debate and the corresponding application of cognitive research,
one cannot overstate the value of showing that freedom and
constraint are not essential characteristics of the legal materials. The debate is better understood once we incorporate the
implicit models of human cognition and cast it as a lack of fit
between the “professed and experienced”7 accounts of the judicial process. As Winter correctly observes, legal reasoning is
unavoidably influenced by the structure and functioning of the
mind: “because law is a product of human minds, it displays all
the regularities both of the structure and of contextdependence predicted by cognitive theory.”8
In this Article, I follow Winter’s endeavor of identifying
the imprints the cognitive system leaves on legal reasoning.
This approach should be distinguished from a familiar view in
legal scholarship that places a premium on the actors’ internal
accounts of their performance rather than on external observations. For example, H.L.A. Hart contests that it is only from
the internal perspective of the judge that one can comprehend
the judicial practice. The external perspective precludes a true
understanding of the “whole distinctive style of human
thought, speech and action” involved in the practice.9 Along
similar lines, Ronald Dworkin insists that a valid account must
be constructed entirely from within the internal perspective of
law, based on “the truth of certain propositions that are given
sense only by and within the practice.”10 Like the perspective
7
Id. at 165.
Id. at 314.
9 Hart points out that one can observe a practice from the outside, as in
watching a traffic light changing colors and patterns of traffic flow, or one can participate in the practice from within, sitting behind the driving wheel and reacting to traffic light signals out of a sense of conformity and obligation to the rules of the road.
Hart depicts the external view as one that is
like the view of one who, having observed the working of a traffic signal in a busy street for some time, limits himself to saying that when
the light turns red there is a high probability that the traffic will stop.
He treats the light merely as a natural sign tha t people will behave in
certain ways, as clouds are a sign that rain will come. In so doing he
will miss out a whole dimension of the social life of those whom he is
watching, since for them the red light is not merely a sign that others
will stop: they look upon it as a signal for them to stop, and so a reason for stopping inconformity to rules which make stopping when the
light is red a standard of behaviour and an obligation.
H.L.A. HART, THE CONCEPT OF LAW 89-90 (2d ed. 1994) (emphasis omitted).
10 RONALD DWORKIN, LAW ’S EMPIRE 13, 14 (1986).
8
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adopted in A Clearing In The Forest, the research reported
here is decidedly inconsistent with this view. It focuses on the
decision-maker’s mental processes and examines them through
the lens of cognitive psychology.
The first part of the Article is primarily expository. It
identifies two accounts of a legal question decided by a court:
the one observed by an onlooker and the other conveyed by the
judges through the narratives of the opinion. I characterize the
former as openness and the latter as closure.
The second part of the Article offers an empirical explanation of the closure professed in judicial opinions. I agree with
Winter that legal materials are mentally represented in a cognitive model that ultimately directs the decision in the case.
Winter portrays a supple cognitive system that can embody
any number of cognitive mechanisms, including basic-level
categorization, conceptual metaphor, metonymy, image schemas, idealized cognitive models and radial categories.11
Missing from his account, however, are the processes or
mechanisms by which multiple, conflicting, and ambiguous
arguments are integrated into discrete models. I present experimental work in cognitive psychology that addresses this
missing link. The results of this research manifest general cognitive phenome na that have important implications for judicial
reasoning. Most notable is the observed bi -directional reasoning processes that tend to impose coherence on the mental representation of the task, so that while the legal materials do in
fact influence the choice of the verdict, coherence-driven processes generate global pressures that apply back onto the legal
materials thus creating coherence with the emerging verdict.
In other words, the cognitive mechanisms operate to create a
lopsided view of the case that provides stronger argumentative
support than the legal materials would otherwise provide. As a
result, judges genuinely report a sense of closure that seems
spurious to the
critic. In the third part of the Article I will briefly discuss some
important issues that emerge from the experimental findings.
11
WINTER, supra note 1, at 6.
2002]
I.
THE LENS OF COGNITIVE PSYCHOLOGY
1101
IDENTIFYING FREEDOM AND CONSTRAINT
This part provides a descriptive framework intended to
offer a particular vantage point of the debate over freedom and
constraint in adjudication. The framework is based on a close
and detailed examination of the arguments that constitute the
opinions.12 The purpose of this micro-analysis is to provide two
accounts of an appellate legal case: the first demonstrates the
existence and extent of the contrariness inherent in appellate
cases, that is, the openness of the legal materials; the second
demonstrates the absolute lack of contrariness conveyed in the
opinions, in other words, the strong sense of closure professed
by judges. Closure is manifested by the uniform and abundant
argumentative support for the chosen decision, in the sense of
inevitability of the outcome, the strong confidence in the outcome and, as discussed below, in the implicit sense of unidirectionality—that is, that the inferences flow exclusively from the
legal materials towards the judicial conclusion. In other words,
unidirectionality implies that the decision is determined by the
materials, and the decision has no effect on the way the legal
materials are selected, interpreted, or applied. I suggest that
the discrepancy between the accounts of openness and closure
is key to the proposed understanding of the freedom and constraint debate.
The case that will serve as an example is Rogers v. Te nnessee, recently decided by the U.S. Supreme Court.13 The case
concerned the conviction of the petitioner for second degree
murder for stabbing a person with a butcher knife. Following
12 It should be noted that this analysis does not depend on the assumption
that the written judicial opinion is (or should be) an actual account of the mental processes involved in reaching the decision. Over and above presenting the legal arguments
that support the decision, opinions are written also to persuade readers, co-opt other
judges into joining the decision, develop legal doctrine, and establish judicial reputations. I have argued elsewhere that, however imperfect, judicial opinions provide an
adequate and rich source of information for the purpose of this kind of analysis. See
Dan Simon, A Psychological Model of Judicial Reasoning, 30 RUTGERS L.J. 1, 34-38
(1998) [hereinafter Psychological Model].
13 532 U.S. 451 (2001). It is important to note that the following analysis can
be made of virtually any appellate case. Rogers is a convenient example because of its
relative simplicity and brevity. This case is also suitable for the current purposes in
that it cuts across the paradigmatic ideological line that divides the Court. The obse rvations made from this case are typically more pronounced in longer and more complex
cases. For a similar analysis of a slightly longer case of Ratzlaf v. U.S., see Simon,
Psychological Model, supra note 12, at 62-72.
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surgery, the victim fell into a prolonged coma and died fifteen
months later from a kidney infection, a common complication
for comatose patients. Rogers appealed his conviction, arguing
that under Tennessee common law, a murder charge cannot be
sustained if the victim does not die within a year and a day
from the time of the assault. Affirming the conviction, the Supreme Court of Tennessee abolished the “year and a day” rule
over Rogers’ claim that this abolition infringed upon due process and violated the Ex Post Facto clauses of state and federal
constitutions. Affirming the state court’s decision, Justice
O’Connor was joined by Chief Justice Rehnquist, and by Justices Kennedy, Ginsburg, and Souter. The principal dissent
was written by Justice Scalia, joined by Justices Stevens and
Thomas. The dissent was joined in part also by Justice Breyer.
A.
Openness
The first observation concerns the extent of conflict and
ambiguity that pervade the legal materials discussed in this
case. The decision revolved around five principal issues:
whether the Ex Post Facto doctrine is separable from due process; whether the Ex Post Facto prohibition is limited only to
“unexpected and indefensible” changes; whether the Ex Post
Facto prohibition is applicable to changes by the judiciary;
whether the “year and a day” rule was valid law in Tennessee;
and whether appellant Rogers was actually deprived of fair
warning. Each of these five issues had some inferential implication for the outcome of the decision. As depicted in Figure
1,14 every one of these issues contains two opposing propositions, each of which supports either one of the decisions.
14 In these diagrams, each boxed statement represents a proposition; solid arrows represent positive inferences; dashed arrows denote contradictory propositions.
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For example, the proposition “Ex Post Facto prohibition is not
applicable to courts” has a supportive implication for the
decision to affirm Rogers’ conviction, whereas the contradictory
proposition “Ex Post Facto prohibition is applicable to courts”
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has a supportive implication for overturning the conviction.15
To be sure, each of the five conclusions depicted in Figure 1 is based on a more detailed set of arguments. Figure 2
depicts the important parts of chains of argumentation that are
presented in both the majority and the dissenting opinion with
respect to one of the five issues—the applicability of the Ex
Post Facto prohibition to courts. The chain on the left part of
the diagram contains some of the arguments made by Justice
O’Connor in support of the proposition that the prohibition
does not apply to courts, and by implication, that Rogers’ conviction should be affirmed.16 The chain on the right side of the
chart presents the dissenting justices’ central arguments in
support of the proposition that the prohibition is indeed applicable to courts, which in turn, also supports the conclusion to
overturn Tennessee’s judgment.17
The contrariness between the two opinions pervades a
wide range of issues, including numerous weighty ones that
extend well beyond the particular case. Amongst other points
of disagreement, the opinions offer discrepant readings of the
history of common law jurisprudence,18 and they differ also on
the correct reading of the constitutional language —where one
15
It is important to appreciate the centrality of the two decision alternatives.
The five issues are weakly related to one another, or not directly related at all. However, they are all connected indirectly through their implicational links with either one
of the central decision alternatives.
16 Rogers, 532 U.S. at 455-59.
17 These diagrams include most, but not all, of the arguments that are included in the respective opinions. It is important to acknowledge that there is no precise way to dissect a case and to distinguish the various components. Alternative ways
will always be possible; they should not, however, deviate substantially from mapping
presented here.
18 Justice Scalia offers a detailed historical analysis of the status of common
law adjudication in the time of the framing, leading to the conclusion that courts were
not perceived then as being capable of “changing” the law. Rogers, 532 U.S. at 472-77.
Justice O’Connor’s historical conclusion, on the other hand, is that due process did not
prohibit judicial evolution at the time of the framing any more than it does so today.
Id. at 462. Justice Scalia’s historical analysis is too intricate and detailed to be included in the diagram.
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opinion sees circumvention of the constitution, the other sees
consistency with it.19 The opinions also reach contradic19 Justice O’Connor points out that because the Constitution explicitly applies
the Ex Post Facto prohibition only to legislatures, extending it to courts would amount
to a circumvention of the constitutional language. Id. at 460. Justice Scalia, on the
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tory
conclusions on the institutional differences between courts and
legislatures;20 on the reading of a crucial statement in the central precedent of Bouie v. City of Columbia as either ratio decidenci or as dicta;21 and on the appropriateness of evolutionary
progress through retroactive change in common law adjudication.22
Similarly, Figure 3 depicts the chains of argumentation
pertaining to another one of the five issues—whether appellant
Rogers was actually deprived of fair warning. The chain on the
left contains most of the arguments made in Justice O’Connor’s
majority opinion while the opposite chain contains arguments
made by the dissenting justices in support of overturning Te nnessee’s judgment.23
Here, too, the diagram conveys distinct conflict and contradiction. Justice O’Connor follows the Tennessee court’s observation that the “day and a year rule” (abbreviated in the
diagrams as the “Rule”) had been abolished in the “vast majority” of states that had addressed it.24 Commenting that common law courts frequently look to the decisions of other
other hand, explains that such an extension would be consistent with the Constitution;
given the historical argument just mentioned, the omission as irrelevant to the current
issue. Id. at 477.
20 The majority emphasizes the differences between courts and legislatures in
the context of changing law, suggesting that courts have less opportunity to abuse
their powers. Id. at 460-61. The dissent finds no difference between the institutions
and suggests that the powers of courts should be limited more than that of legislatures.
Id. at 478.
21 The dissent insists the precedent of Bouie v. City of Columbia, 378 U.S. 347
(1964), explicitly restricted Ex Post Facto changes by courts, whereas the majority
justices found this statement to be mere dicta. Rogers, 532 U.S. at 459, 469.
22 Rogers, 532 U.S. at 460. Justice Scalia criticizes the majority for failing to
distinguish between applying the common law to new factual situations and changing
the law itself. He also points out that even in civil cases changing the rules retroactively is extremely rare. Id. at 471.
23 Id. at 460-64.
24 Id. at 463.
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jurisdictions in determining the fate of their own common
law,25 Justice O’Connor concludes that the Rule’s sweeping
25
Id. at 464.
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erosion is “surely relevant to whether the abolition of the rule
in a particular case can be said to be unexpected and indefensible.”26 Displaying skills of a devoted legal Realist, Justice
Scalia mocks the majority for the way the inter-jurisdictional
comparison was framed. He questions whether it should not
count in the petitioner’s favor that some states chose not to
address the Rule, some states addressed it but elected not to
change it, some states changed it legislatively,
and yet others changed it prospectively.27 Commenting that
people need not apprise themselves of the status of the common
law in all fifty states in order to ensure that their conduct is
legal, Justice Scalia finds this comparative analysis irrelevant.28 The majority opinion justifies the abolition of the “year
and a day” rule in that it is an arcane and outdated legal principle.29 In response, Justice Scalia reminds the Court that
there are many valid provisions of criminal law that are
couched in arcane terms.30 Justice Scalia also characterizes the
Rule as an actual element of the crime,31 whereas Justice
O’Connor points out that it was ne ver specified in the Tennessee criminal code and that it was not really law at the time
Rogers committed the crime.32
In addition to the contrary propositions found in the two
issues already discussed above, the opinions also reveal wide
gaps in interpretations on a relevant body of precedent;33 the
relationship between due process and the Ex Post Facto prohibition;34 the principal elements of the doctrine governing the
prohibition of retroactive change;35 the precedential status of
the “year and a day” rule in Tennessee;36 and—absent any
26
Rogers, 532 U.S. at 464.
Id. at 479.
28 Id.
29 Id. at 463.
30 Id. at 479.
31 Rogers, 532 U.S at 468.
32 Id. at 466.
33 Compare Rogers, 532 U.S. at 458-59, with Rogers, 532 U.S. 469-70 (Scalia,
J., dissenting).
34 Id.
35 Compare Rogers, 532 U.S. at 457, 461, with Rogers, 532 U.S. 469-70 (Scalia,
J., dissenting).
36 Compare Rogers, 532 U.S. at 466, with Rogers, 532 U.S. 469, 480 (Scalia, J.,
dissenting).
27
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mention of the Bush v. Gore37 decision rendered four months
earlier—the validity of a state court’s interpretation of its state
law.38
To sum up the first observation, real conflict and contradiction pervade the legal question decided in this case. On
every turn, one finds inconsistent and even contradictory understandings of the law, all of which seem somewhat plausible
in their own right.
B.
Professed Closure
The second observation concerns the remarkable sense
of closure conveyed in the opinions. As already seen from Figures 2 and 3, each of the opinions endorses arrays of arguments (in psychological terms, “inferences”) all of which support the respective result, and rejects or ignores all other arguments that support the opposite decision.39 The sheer number of arguments incorporated in the opinions and the uniformity of support they lend to the respective decisions is astounding. As depicted in Figure 2, the majority’s conclusion that Ex
Post Facto prohibitions are inapplicable to courts is supported
by all of the ten arguments that pertain to this issue, whereas
the opposite conclusion is supported by all eight arguments
offered in the dissenters’ opinion.40 The arguments supplied in
each opinion are distinctly inconsistent with those supplied by
the other, and there are no less than five direct contradictions
(denoted by the dashed arrows) between the two sets. Similarly, Figure 3 displays eight arguments offered by the majority and thirteen arguments offered by the dissent,
again, all providing uniform support for the respective conclusion.
Recall that these two figures capture only two out of the
37 531
U.S. 98 (2001).
Compare Rogers, 532 U.S. at 465-66, with Rogers, 532 U.S. at 469, 480
(Scalia, J., dissenting).
39 The fact that the justices disagree on virtually every issue raised in the
opinions does not mean that they agreed about nothing. One of the conventions of legal
argument is not to dwell on points that are in agreement. Still, the range of disagreement is broad and deep.
40 There is more than one way to count the arguments. While objective measures are unavailable, they are essential for the current discussion.
38
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five issues discussed in the case. The other three issues reveal
similar patterns of reasoning. Based on a conservative count,
the majority opinion—holding a mere seven pages in the Supreme Court Reporter—includes no less than thirty-seven arguments and twenty citations to case law that provide the argumentative basis for the five basic conclusions that ultimately
support the respective decision. The most stark fact is that
every one of the inferences supports the respective decisions.
The opinion also repudiates, rejects or ignores virtually every
one of the arguments made by the dissenters. In a similar fashion, the dissenting opinion presents a compelling composition—
at least thirty arguments and three cites to precedents41—
every one of which supports the respective decision.42
The incompatibility of the opinions is not lost on the
Justices. Rejecting the dissent’s conclusion of a due process
violation, the majority emphatically states that there is “nothing” to suggest that this occurred in this case.43 What the majority portrays as a routine decision that brings the common
law into conformity with “logic and common sense,”44 the dissent criticizes as a conclusion that no reasonable person would
imagine.45 The dissent also characterizes the decision as “fundamentally unfair,” a violation of “one of the most widely held
value-judgments in the entire history of human thought,”46 and
contrary to “the first principles of the social compact, and to
every principle of social legislation.”47 While the majority touts
the decision as an instantiation of good policy, the dissent fears
that it could open the floodgates by validating “the retroactive
creation of many new crimes.”48
41 The dissent holds some eight pages in the Supreme Court Reporter, three of
which are devoted exclusively to the historical analysis. The historical analysis has not
been included in this discussion.
42 It is true that the number of arguments (or, inferences) identified here is
most likely larger than the number of arguments that were actually considered by the
justices as part of their decision-making process. Judges tend to “pad” or otherwise
embellish the written opinion after having made up their minds. This suggests that the
numbers noted here are inflated in relation to the arguments that “actually” counted.
43 Rogers, 532 U.S. at 467.
44 Id. at 462.
45 Id. at 478, 467 (Scalia, J., dissenting).
46 Id.
at 468 (Scalia, J., dissenting) (quoting JEROME
HALL,
G ENERAL PRINCIPLES OF CRIMINAL LAW 59 (1960)).
47 Id. at 478 (Scalia, J., dissenting) (quoting THE FEDERALIST No. 44,
282 (James Madison)).
48 Rogers, 532 U.S. at 480 (Scalia, J., dissenting).
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The professed closure, then, conveys a strong sense of
constraint. The sheer quantity and perfect alignment of the
arguments in support of the chosen decision, coupled with the
implicit or explicit rejection of the arguments supporting the
alternative decision, do indeed make the decision seem obviously correct, even inevitable.
C.
Openness v. Closure
In sum, the legal issues involved in Rogers v. Tennessee
harbor a considerable degree of openness, yet this openness is
entirely absent from the opinions.49 This discrepancy, I suggest, lies at the heart of the contentious debate about freedom
and constraint, and it is a likely source for the critical energy
driving the controversy surrounding this jurisprudential question. Critics are jarred, correctly I believe, by the coexistence of
openness and closure. How is it possible, one might well wonder, that judges report being so strongly constrained by the
legal materials when this professed inevitability dissipates—
indeed, is turned on its head—as soon as one turns the page (or
shifts the glance to the other side of the diagram) and notices
that the opposite opinion reports inevitability and constraint
based on an equally compelling array of contradictory arguments. Furthermore, how is it possible that every single one of
the arguments cited in each opinion is taken to support the
corresponding decision? When making decisions in our personal lives, we should be so lucky to have thirty arguments line
up in support of one course of action with no good reason opposing it. Upon close review of the professed closure, one sees that
there is no scheme of principle underlying the alignments of
arguments; rather, they appear to be an ad hoc assortment of
propositions bound only by the superficial feature that they
happen to lend argumentative support to the same outcome in
a specific case. Indeed, the sense is that something is amiss in
the constraint judges report: it seems that the professed constraints are somehow imposed upon the legal materials.
This suspicion has been exaggerated, if not misinter49 There is nothing unique in this regard about Rogers v. Tennessee. Virtually
every non-unanimously decided appellate case contains a high degree of openness
while the opinions convey a distinct sense of closure.
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preted, by the judiciary’s critics. First, critics tend to charge
that to some degree at least, judges are conscious of their misrepresentation.50 I argue below for an alternative understanding of the professed constraint, based on the observation that
closure is imposed by the cognitive system and that judges are
not aware of this phenomenon. Second, some critics charge that
since legal questions like Rogers v. Tennessee are so fraught
with gaps and ambiguities, judges are free to decide whatever
they like. This, I believe, is an overstatement of judicial freedom. Rather than concluding that the range of choices is indefinite or even large, the more sustainable inference is that
there is much contradiction among the few (usually two) plausibly available alternatives.51 Thus, the observation of wide
openness should be taken to stand only for the claim that there
is considerable room for judicial discretion in choosing between
the two alternative decisions ultimately available for consideration.52
The explanation offered here is that professed constraint is a phenomenon of the cognitive processes that make
such decision making tasks feasible. However brief and
straightforward by comparison to most Supreme Court cases,
Rogers contains a fair degree of complexity. It requires evaluating and integrating five different and incommensurable issues,
each of which contains conflict and ambiguity. This is a daunting task for any computational system. The human cognitive
system should be appreciated for its capability to engage in
such tasks and bring them to conclusion; however, it must also
be appreciated that the process does not occur by the grace of
an invisible mind. Rather, it requires arduous processing by
cognitive mechanisms, and these processes leave their imprints
50
For more on these phenomenological aspects, see infra Part III. B.
This view, rather than unfettered discretion, is the more powerful of the
Realists critiques. See Gregory Keating, Fidelity and Pre-Existing Law and the Legitimacy of Legal Decision, 69 NOTRE DAME L. REV . 1, 51 (1993); Joseph W. Singer, Legal
Realism Now, 76 CAL. L. REV . 465, 467-75 (1988). Similarly, Richard Posner explains
that legal materials that do not lean so strongly in one direction so as to make one
decision unreasonable, “merely narrow the range of permissible decision, leaving open
an area within which the judge must perforce attempt to decide the case in accordance
with sound policy.” RICHARD A. POSNER, PROBLEMS WITH JURISPRUDENCE 131 (1990).
52 In other words, the term indeterminacy is better understood as a form of
underdeterminacy. The taxonomy of indeterminacy and underdeterminacy is borrowed
from Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54
U. CHI. L. REV . 473 (1987).
51
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on the result. The most notable phenomenon is that during the
process, the cognitive system dynamically changes the evaluations of the arguments leading towards a strong endorsement
of one set of arguments and a rejection of the competing set.
These changes are the cause for the strong dominance that
emerges at the end of the decision.
In psychological terms, the observations of closure are
captured by the term coherence, that is, a mental state in
which concepts that “go together” are similarly activated. Thus,
a coherent state is one in which the arguments that support
the chosen conclusion are strongly endorsed while those that
support the rejected decision receive weak or negative endorsement. As used here, coherence is a positive term that describes the relationship amongst parts of a set, rather than as
a desideratum of a jurisprudential theory.53 The phenomenon
of coherence, I would argue, plays an important role both in the
way judges make legal decisions and in the way their work is
understood by their audiences—proponents and critics alike.
II.
EMPIRICAL SUBSTANTIATION OF COHERENT EFFECTS
In this part of the Article I will describe a series of experiments in cognitive psychology performed by Keith Holyoak
and myself.54 The experiments were designed to examine the
process that governs mental tasks that require
integrating multiple, ambiguous, and conflicting components
into discrete choices.
A.
Theoretical Background: Connectionist Representations
and Constraint Satisfaction Mechanisms
Before presenting the experimentation, it would be
helpful to spell out the theoretical underpinning of this project.
53 Cf. DWORKIN, supra note 10, at 236-37; Rolf Sartorious, Social Policy and
Judicial Legislation, 8 AM . PHILOSOPHICAL Q. 151 (1971).
54 See Keith. J. Holyoak & Dan Simon, Bidirectional Reasoning in Decision
Making by Constraint Satisfaction, 128 J. EXP. PSYCHOL. GEN. 3 (1999); Dan Simon et
al., The Emergence of Coherence Over the Course of Making a Decision, 27 J. OF EXP.
PSYCHOL.—LEARNING, MEMORY AND COGNITION 1250 (2001) [hereinafter Emergence of
Coherence].
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The research reported here is theoretically based on connectionist systems for the cognitive representation of the tasks and
on constraint satisfaction mechanisms for their processing.55
These theories, deemed the new version of Gestalt theory,56 are
characterized by their fluidity, flexibility, and context sensitivity. These properties enable the connectionist framework to
realistically capture the processes by which people perform a
variety of complex mental tasks. Constraint satisfaction models have strong parallels with the family of theories of cognitive
consistency,57 which were developed in social psychology under
the Gestalt influence.58 The interactive activation model of letter and word perception59 and subsequent
computational
constraint satisfaction models
developed by Holyoak and Thagard60 provide the basis for the
cognitive research presented below.
The representation of a complex task, such as deciding a
legal dispute, can be imagined as an intricate electrical network, in which numerous facts, values, principles, and concepts
are represented as elements, or no des. This representation is
determined by the rich and detailed background store of
knowledge about one’s legal, social, and conceptual worlds.
55 For an excellent review of these concepts, see Stephen J. Read et al., Connectionism, Parallel Constraint Satisfaction Processes and Gestalt Principles: (Re)
Introducing Cognitive Dynamics to Social Psychology, 1 PERSONALITY & SOC. PSYCHOL.
REV ., 26-53 (1997).
56 See Steven Palmer, Gestalt Psychology Redux, in SPEAKING MINDS :
INTERVIEWS WITH TWENTY EMINENT COGNITIVE SCIENTISTS 157 (Peter Baumgartner &
Sabine Payr eds., 1995).
57 Cognitive consistency theories, which were applied to attitude and belief revision, include balance theory, see Fritz Heider, Attitudes and Cognitive Organization,
21 J. OF PSYCHOL., 107-111 (1946); FRITZ HEIDER, THE PSYCHOLOGY OF
INTERPERSONAL RELATIONS (1958); cognitive dissonance theory, see LEON FESTINGER,
A THEORY OF COGNITIVE DISSONANCE (1957); and symbolic psycho-logic, see Robert P.
Abelson & Milton Rosenberg, Symbolic psycho-logic: A model of Attitudinal Cognition,
3 BEHAV . SCI., 1-8 (1958).
58 For a critical historical discussion of cognitive consistency theories, see Dan
Simon & Keith J. Holyoak, Structural Dynamics of Cognition: From Consistency Theories to Constraint Satisfaction, ____ PERSONALITY & SOC. PSYCHOL. REV . ____ (forthcoming 2002).
59 J. L. McClelland, & D. E. Rumelhart, An Interactive Model of Context Effects in Letter Perception: I. An Account of Basic Findings, 88 PSYCHOL. REV. 375-407
(1981).
60 See Keith J. Holyoak & Paul Thagard, Analogical Mapping by Constraint
Satisfaction, 13 COG. SCI . 295-355 (1989); Paul Thagard, Explanatory Coherence, 12
BEHAV . & BRAIN SCI . 435-67 (1989).
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Each element begins with an initial activation, that corresponds to the degree of the respective element’s acceptability,
in other words, the strength of the respective argument represented by these elements. Activation levels can be positive or
negative and they vary in intensity. Elements are connected to
other elements by inferential links. Links can be either positive
or negative, denoting whether the connected elements support
or contradict one another. The strength of the links varies according to the nature of the association between the elements.
Thus, every linked element stands for an inferential relationship. At the central junctions of the network are a pair of vying
alternatives (for convenience, assume only two alternatives).
Option A is supported by some of the elements (a1, a 2,…an), and
some elements (b1, b2,…bn) support the opposite option B. In all
but the simplest of decisions, no one element is independently
capable of determining the outcome of the process. Each inference is better viewed as a “constraint” on the system; the inferences constrain other inferences and are constrained by them
in return.61
It is not difficult to see how a legal controversy can be
represented as a connectionist network. Each one of the plausible arguments presented to the judge can be viewed as a constraint on the network. Numerous arguments lend argumentative support through chains of inference to either one of the
alternatives. In the Rogers case, for example, the proposition
that Bouie’s restriction of judicial change was mere dicta lends
argumentative support to the majority’s decision, while the
proposition that it was ratio decidenci lends support to the dissent’s conclusion, and both propositions inhibit one another.
Likewise, the proposition that Rogers’ conduct was criminal at
the time it was committed supports affirming the conviction,
while the proposition that the year and a day rule was an element of the crime supports the dissent, and both propositions
negatively constrain one another. The daunting task of the
cognitive system, then, is to process this complex and conflictladen task in a way that will yield a discrete choice between
the two vying verdicts.
Constraint satisfaction mechanisms operate through a
61 Note that the term “constraint” as used in the context of constraint satisfaction mechanisms is conceptually dissimilar from the formulation of freedom and constraint as used in the debate about the judicial function.
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process of cross-activation of the elements. Each element induces the activation of all other elements to which it is connected. The cross-activations depend on the elements’ relative
initial levels of activation, and on the strength and sign of the
link that connects them. Supportive elements excite one another, whereas contradictory elements inhibit each other. Since
each element is typically connected to a number of elements,
activation spreads through adjacent elements and thus permeates the cognitive structure. As the process progresses, elements are influenced by other elements in parallel, resulting in
changes in the levels of their activation, which in turn lead to
slightly different cross-activations. Over time, elements that
are not supported or are suppressed by other elements wane,
and those that are supported become more active.
Ultimately, these repeated interactions asymptote at an
equilibrium of maximal satisfaction, given the initial constraints. At this point of equilibrium, one subset of elements,
say a1, a 2,…an, becomes highly activated and the other subset is
inhibited. A state in which positively associated elements share
similar levels of acceptability—with “winning” elements being
positively activated and “losing” elements being negatively activated—amounts to a state of coherence. It is of crucial importance that since coherence is not spontaneously extant in the
initial representation of a difficult decision, cognitive work
must be performed to attain it. Thus, constraint satisfaction
mechanisms impose a coherence-maximizing order on the sets.
Cognitive forces push backwards, so to speak, from the global
level towards the individual elements, forcing them to change
towards a state of coherence. A central tenet of this cognitive
paradigm is that the attainment of coherence entails
a reconstruction of the initial representation, a shift from a
state of openness to one of closure.62
One way to explain the tendency towards coherence is
that it serves the simplification motive—a ubiquitous feature of
the cognitive system of promoting cognitive economy. Structuring complex cognitive sets into tightly-bound, coherent representations serves to reduce the quantity and complexity of the
information involved in thought processes. Coherent structures
62 See Barbara A. Spellman et al., A Coherence Model of Cognitive Consistency: Dynamics of Attitude Change During the Persian Gulf War, 49 J. OF SOC.
ISSUES 147-65 (1993).
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are likely to be easiest to process, memorize, and communicate
to others.63 Indeed, our experiments made direct findings to
this effect.64
B.
The Coherence Experiments – Quest v. Smith
1. Method
The experiments were designed to examine the cognitive processing of a complicated decision that contains a high
level of conflict and ambiguity. Participants in these experiments were asked to evaluate a set of arguments that share no
apparent relationship, first in isolation, and later in the context of a legal case. The first phase consisted of a dozen vignettes, each of which was followed by a statement that could
be inferred from the text. Participants were asked to rate their
agreement with each of these seemingly unrelated inferences,
using an 11-point scale ranging from -5 (“definitely disagree”)
to + 5 (“definitely agree”), with a rating of 0 indicating neutrality. For example, participants were given a technical definition
of a telephone system and asked to what extent the Internet
resembled a telephone system; in a separate vignette, they
were given a definition of a newspaper and were asked the extent to which the Internet resembled a newspaper.65 Participants were told they were not expected to have any expert
63
See, e.g., Steven Neube rg & Jason Newsom, Personal Need for Structure:
Individual Differences in the Desire for Simple Structures, 64 J. PERSONALITY & SOC.
PSYCHOL. 113, 113-14 (1993). In this regard, the tendency towards coherence seems to
serve a similar function to the cognitive feature of categorization, by which people
divide the world in a way that maximizes intra-category similarity and minimizes
inter-category similarity. See Edward Smith, Concepts and Reasoning, in AN
INVITATION TO COGNITIVE SCIENCE : THINKING 3 (Edward Smith & Daniel N. Osherson
eds., 2d ed. 1995); see also Eleanor Rosch, Principles of Categorization, in COGNITION
AND CATEGORIZATION 27, 28 (Eleanor Rosch & Barbara L. Lloyd eds., 1978).
64 We found that coherence is imposed not only when participants engage in a
decision-making task, but also when they process a case for the sake of mere memorization, learning, and preparation for communicating it to a third party. See Simon et
al., Emergence of Coherence, supra note 54.
65 A telephone system was defined as “a network of interconnected lines used
to transmit and receive voice or data from one extension to one or more other exte nsions.” A newspaper was defined as “any publication intended for the distribution and
dissemination of news, facts or opinions to broad audiences.”
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knowledge, but were asked simply to use common sense in
making their ratings. This first phase was completed before the
participants were informed about the ensuing legal task.
After completing a distracter task, the second phase
was administered. Participants were presented with a fictitious
civil suit filed by a software company, Quest, against one of its
investors, Jack Smith. The evidence, which was not in dispute,
was that Quest’s financial situation had been deteriorating for
some time and its management was having difficulty in coping
with the company’s troubles. Smith, a dissatisfied shareholder,
posted a message that contained negative assertions about
Quest and its prospects for recovery on an electronic bulletin
board that was directed at investors. Shortly thereafter,
Quest’s stock price plummeted and the company went bankrupt. It was later revealed that the company had been secretly
developing a new product that could have saved the company.
Quest was suing Smith for libel, claiming that his message
caused the collapse of the company.
The case was designed to resemble the argumentative
structure of a relatively uncomplicated Supreme Court case
with six separate issues in dispute. Three issues involved matters of fact: Quest argued that Smith’s negative assertions
were untruthful, whereas Smith claimed they were all true;
Quest asserted that the message caused the company’s downfall, whereas Smith claimed that its collapse was caused by its
mismanagement; Quest claimed that Smith’s action was malevolent, whereas Smith claimed he aimed only to protect other
innocent investors. The remaining three points of contention
involved matters of law and legal policy: Quest argued that as
a matter of public policy, it is in society’s interest to regulate
speech over the Internet, whereas Smith argued that society
would benefit from free speech over the Internet; Quest
claimed that in posting the message, Smith had violated a
company bylaw requiring prior notification of management;
Smith maintained that he had complied with the bylaw. On the
last issue, participants were informed that as a matter of law,
statements published in a newspaper are normally subject to
libel law, whereas utterances expressed over a telephone are
normally immune from liability for libel. The plaintiff argued
that the Internet is analogous to a newspaper, whereas Smith
argued that it is more like a telephone system. The parties
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used the same legal definitions of newspaper and telephone
system as used in the vignettes.66 In all, the case materials
were designed to present sufficient ambiguity so as to enable
plausible arguments to be made by both parties on each of the
issues. The six points of dispute and their relationship to the
alternative verdicts are depicted in Figure 4.
Participants were given as much time as they liked to
read the case. They were then asked to render a verdict and to
rate their confidence that they had made the best possible verdict on a 5-point scale ranging from 1 (“low confidence”) to 5
(“high confidence”). Finally, participants completed the final
post-test measurement in which they were asked to rate their
agreement with each one of the arguments made by the parties. An important aspect of the experimental design was that
the legal arguments were essentially identical in form and
wording as those used in the previous measure of the vignettes,
except that they were now embedded in the legal case.
66
See supra note 65.
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2. Results67
Participants were about evenly divided in their verdicts,
with twenty-six deciding in favor of the plaintiff Quest, and
twenty-two deciding in favor of the defendant Smith. Our first
theoretical observation concerned the levels of confidence
participants reported in their verdicts. One might have expected that given the complexity and ambiguity that pervaded
the case (as evidenced by their evaluations at the vignette
phase, as discussed below), the participants would encounter
difficulty in deciding the case, and that they would report low
levels of confidence. Yet, as seen in Figure 5, the distribution of
reported confidence (along a scale ranging from maximal confidence in one verdict to maximal confidence in the other) follows
a distinct bi-modal, rather than a normal dispersion. Regard67 Presented here are results from the first experiment, in which forty-eight
people participated. These results have been obtained consistently in a number of
variations of this experiment that have been run since, with a total of over 300 participants. See Simon et al., Emergence of Coherence, supra note 54.
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less of which verdict they chose, the participants were highly
confident that they had reached the best possible decision. Seventy-five percent of participants indicated that they had
maximal (5) or next-to-maximal (4) confidence in their verdicts;
conversely, only five percent indicated they had minimal (1) or
next-to-minimal (2) confidence. This combination of ambiguity
and high confidence
in decisions is consistent with constraint-satisfaction models of
decision making, which tend to resolve ambiguous situations
by allowing one coherent set of beliefs to become highly activated, while the other set becomes more inhibited.
The second question we addressed was whether the
process of reaching a verdict was accompanied by a change in
participants’ assessments of the six points of dispute involved
in the case. Conventional theories of reasoning would predict
that people’s evaluations of arguments would not change in
any systematic way from one measurement to the next. In contrast, constraint satisfaction models of decision making predict
that an emerging decision will be accompanied by a general
shift toward a coherent position across all the points of dispute.
In other words, evaluations of the issues undergo change from
the initial, spontaneous state that is coherent with neither decision, towards a state of coherence with the emerging decision.
Figures 6 and 7 present the mean evaluations of the arguments separately for the participants who decided in favor of
Smith and those who decided for Quest, respectively. Figure 6
shows a pattern of change in the evaluations that occurred between the vignette phase and the legal case: the arguments
that support the preferred verdict (in favor of Smith) became
stronger (mean agreement increasing from +1.32 to +1.9) and
the arguments that supported the rejected verdict weakened
(mean agreement decreasing from
+0.8 to –0.66). Thus, by the time the participants have reached
a verdict, the two argument sets are spread apart; the arguments that support a verdict for Smith dominate the arguments that support Quest’s position. This dominance makes for
an easy and confident decision in the defendant’s favor.
Similar changes are found with participants who decided for Quest. Figure 7 shows the same pattern of the shift in
evaluations towards coherence with the pro-Quest verdict.
Here too, relative to the fairly close evaluation of the two sets
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of arguments at the vignette phase, by the conclusion of the
legal decision, the arguments supporting the chosen verdict are
deemed stronger (mean agreement increasing from +1.68 to
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2002]
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+2.46) and those supporting the rejected verdict are suppressed
(mean agreement decreasing from +0.95 to -0.23).68 The
skewed inferences translate into firm dominance of the verdict
in favor of plaintiff, accompanied by high levels of confidence.
68 Although these analyses reveal a clear shift in participants’ assessments of
the six points of dispute in the direction of their verdict, they do not suffice to establish
that individual participants reached a broadly coherent position across the disputed
points. It remains possible that these mean effects were caused by a single argument
rather than by imposition of coherence on the entire sets of arguments. However, if a
constraint-satisfaction process was used to reach a decision, then individual participants would be expected to shift their assessments of most or all of the disputed points
in the direction of their eventual verdict.
For this purpose, we also performed a correlational analysis of all of the twelve
arguments and the eventual verdicts. We predicted that on the first measurement,
participants’ assessments of the six positions would not constrain one another, and
hence would tend to be uncorrelated. Once the points are presented in the context of
the case, however, a constraint network would be created, the effect of which will be to
generate positive correlations among the disputed points, and between each point and
the verdict. This is the pattern we observed. In the first measurement, we found very
little correlation among the disputed points and verdict—only two of the twenty-one
correlations were significantly positive, and several were negative. This further de monstrates that the materials created a genuine sense of complexity and ambiguity. In
contrast, in the second measurement, all but one of the correlations were significantly
positive, including all six correlations between disputed points and the verdict; the
non-significant correlation was also positive.
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To obtain a more detailed view of the coherence driven
changes, one can observe the shift in the evaluations of the two
analogy items: the similarity of the Internet to a telephone system (thus invoking a precedent that supports Smith’s case) and
to a newspaper (precedent cited by Quest). Figure 8 shows that
at the vignette phase, most participants agreed with both
analogies to approximately the same degree, and the
evaluation was relatively positive (all within the range of +0.82
to +1.12 on a scale ranging from –5 to +5). However, when the
same evaluations are made in the context of the case, participants’ agreement with the analogies shifts in a predictable pattern: participants who decide in favor of Quest come to agree
much stronger with analogizing the Internet to a newspaper
and adopt a negative attitude towards the analogy to a telephone system. Conversely, participants who decided in favor of
Smith displayed a slight increase in the analogy to a telephone
system and a significant decrease in agreement with the analogy to a newspaper.
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The third question we addressed concerned the participants’ metacognition, specifically whether they were aware of
these coherence-driven changes. Previous research on attitude
change in social psychology has demonstrated that people have
poor awareness of changes in their attitudes and beliefs. This
conclusion is based on the finding that participants are generally incapable of remembering the original belief or attitude,
thinking instead that the ones they hold at the end of the process are the same as the ones they initially held.69 This finding
was borne out by our results too. In
69 Participants who are confronted with their original positions tend to be
genuinely surprised. In some cases, they adamantly deny the occurrence of any change.
See George R. Goethals & Richard F. Reckman, The Perception of Consistency in Attitudes, 9 J. OF EXPER. SOC. PSYCHOL. 491-501 (1973). Findings to this effect were first
made by Asch. See Solomon Asch, Studies in the Principles of Judgments and Attitudes: II. Determination of Judgments by Grouped and by Ego Standards, 12 J. SOC.
PSYCHOL. 433, 438-39 (1940), and have been replicated in the work of Daryl Bem &
Keith McConnell, Testing the Self-Perception Explanation of Dissonance Phenomena:
On the Salience of Premanipulation Attitudes, 14 J. PERSONALITY & SOC. PSYCHOL. 23,
30 (1970); Michael Ross & Ronald F. Shulman, Increasing the Salience of Initial Attitudes: Dissonance Versus Self-Perception Theory, 28 J. PERSONALITY & SOC. PSYCHOL.
138, 142 (1973); and Dennis Wixon & James Laird, Awareness and Attitude Change in
the Forced-Compliance Paradigm: The Importance of When, 34 J. PERSONALITY & SOC.
PSYCHOL. 376, 382 (1976).
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some conditions, after participants completed the task of making the decision, they were asked to recall the ratings that they
had given on the initial test in response to the vignettes.70 We
found that the recalled evaluations were somewhere between
the evaluations on the vignettes and the evaluations made at
the end of the process; the best single predictor of the recalled
evaluations was those made at the end of the legal case, rather
than the initial ratings.71
This finding supports the belief that people tend to perceive relative constancy in their cognitive states; they believe
that the attitudes they ho ld at the end of the task were the
same ones they held throughout the entire process. This phenomenology of constancy serves to minimize or even preclude a
recognition that the positions underwent change on their way
to the firm and virtually uniform endorsement of subset of arguments.72
Two additional points about this research program are
noteworthy. First, our evidence suggests that the coherence
maximizing functions actually play an important part in driving the process, rather than being merely ex post consequences
of it.73 Second, coherence effects are not limited to legal tasks of
this nature. The same overall effects have been found in a
broad range of cognitive tasks.74
70 Specifically, the instructions stated, “For each question, your goal is to state
the rating that you gave on the earlier test. Note that you should NOT give the rating
you might now believe is correct (since your opinions might have changed). Rather, you
should try your best to remember what rating you gave previously, and give that same
rating again.”
71 See Holyoak & Simon, supra note 54.
72 See Timothy D. Wilson & Nancy Brekke, Mental Contamination and Me ntal Correction: Unwanted Influences on Judgments and Evaluations, 116 PSYCHOL.
BULL. 117 (1994).
73 This finding is a departure from cognitive dissonance theory. See Simon et
al., Emergence of Coherence, supra note 54.
74 Similar findings of constraint satisfaction processes have been observed in
the making of a job choice decision in a Multi Attribute Utility decision paradigm, Dan
Simon et al., Making Multi Attribute Decisions by Constraint Satisfaction, presented at
Meeting of Society For Judgment And Decision Making (Oct. 2000); making social
judgments about the fate of an interpersonal relationship, C. Snow, D. Simon, & S.
Read, Social Judgment by Constraint Satisfaction; (work in progress, on file with author); and mock criminal decision tasks that require the integration of a number of
pieces of circumstantial evidence, D. Simon, C. Snow, & S. Read, Constructing Facts by
Constraint Satisfaction, Address before the Convention of American Psychological
Association (Aug. 2001).
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DISCUSSION
In this Article I have offered a way both to conceive and
understand the debate over freedom and constraint in adjudication. The key to the proposed conception is the discrepancy
between the openness that is apparent in the legal materials
and the judicial claim of being constrained by them, as manifested in the example of Rogers v. Tennessee. Central to the
proposed understanding of the debate is the recognition that
closure is, to a large degree, a natural outcome of the cognitive
process involved in decision making; indeed, it is inherent to
the mechanisms that enable the decision.
A basic claim of this Article has been that the experimental results provide insight into a better understanding of
freedom and constraint in judicial reasoning. As described
above, the coherence professed in the Rogers opinions is quite
implausible. The five topics discussed in the case—the separ ability of the Ex Post Facto doctrine from due process; the scope
of the Ex Post Facto prohibition; the applicability of the Ex
Post Facto prohibition to the judiciary; the status of the “year
and a day” rule in Tennessee; and the fairness of the warning
awarded to appellant Rogers—are essentially separate legal
questions. For the less than naïve reader, it seems striking
that both opinions claim that all five questions support the respective decisions; it is much harder to accept that every one of
the dozens of arguments aligns perfectly to support the corresponding decisions. Implicit in the judicial opinions is the claim
that the endorsed arguments consist of accurate, correct, and
objective readings of the legal materials, rather than ad hoc
judgments made to suit the case at hand. However suspicious
this portrayal might appear, it is difficult to devise an empirical method capable of directly validating or refuting this crucial feature of the judicial function. The controlled environment
of a psychological experiment, on the other hand, can provide
some insight into this question.
It cannot be taken for granted that experimental findings are automatically applicable to the actual practice of judicial decision making. Indeed, one might reject the applicability
of these general models of cognition to the judicial setting and
adhere instead to an approach that presumes the autonomous
nature of legal decision making. This, of course, lies at the
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heart of the internal perspective towards judicial reasoning.75
By the terms of this approach, any external position is required
first to lift the onus and demonstrate that it is superior to the
internal perspective. But this default position is, of course, contestable. One could well argue that given the generality of the
cognitive processes discussed here, the burden should be on
those who claim that the mental processes employed in the judicial context are unique.
I propose that the cognitive psychology presented here
generally succeeds in capturing some important features of
judging. The research program of coherence driven decisionmaking addresses the very kind of tasks that judges face: making discrete choices between competing courses of action that
are influenced by a complex multitude of ambiguous inferences. The fact that these findings have been replicated successfully in a range of cognitive tasks,76 gives good reason to
believe that it captures general and basic aspects of this type of
decision making process. It is almost too obvious to mention
Robert Cover’s reminder that judges, after all, are “quite like
the rest of us.”77 While there is no doubt that the judicial practice entails a great deal of discipline -specific expertise,78 it is
not at all obvious that the underlying cognitive processes are
any different. The reasoning processes of the jurist, John
Dewey argued, are similar to those of the engineer, banker,
farmer, and merchant.79 As Richard Posner notes, “there is no
distinctive methodology of legal reasoning.”80 I have elsewhere
75
See supra notes 9, 10.
See supra note 74.
77 Robert Cover, The Supreme Court, 1982 Term: Forward: Nomos
and Narrative, 97 HARV . L. REV . 4, 67 (1983). See also LEARNED HAND, How Far Is a
Judge Free in Rendering a Decision?, in THE SPIRIT O F LIBERTY 103, 107
(1960). Morris Cohen explained: “we must not forget that actual law is a human
product—made and administered by judges who are not free from human
limitations in intelligence and goodwill.” MORRIS R. COHEN, LAW AND SOCIAL
O RDER: ESSAYS IN LEGAL PHILOSOPHY 337 (1933).
78 As Gary Blasi suggests in his important discussion of legal expertise, legal
experts have advantages in both the quantity of knowledge they hold and their organization of that knowledge. Experts are better than novices in their perception and
memory of patterns and structures, and they can use their superior capabilities of
“forward” reasoning to solve problems faster. See Gary L. Blasi, What Lawyers Know:
Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. LEGAL
EDUC. 313 (1995).
79 See John Dewey, Logical Method and Law , 10 CORNELL L.Q. 17, 18 (1924).
80 See Richard A. Posner, The Jurisprudence of Skepticism, 86 MICH. L. REV .
76
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pointed out that many of the cognitive phenomena discussed
here can be found in the introspective writings of legal thinkers
such as Cardozo, Holmes, Posner, Hand, and Llewellyn.81 The
applicability of this psychological the ory to the judicial practice
is further confirmed, albeit indirectly, from its correspondence
to the actual behavior of judges.
The participants in the experimental case of Quest reported coherence that is not unlike the state of closure found in
judicial opinions. They strongly endorsed the arguments that
supported their respective decisions and rejected the arguments that were consistent with the rejected position. The
main advantage of the experimental design is that it also provides the same participants’ evaluation of virtually the same
arguments before they became involved in deciding the legal
case. Not surprisingly, no coherence is observed at that spontaneous stage. At that point, the arguments provided mixed
support for both decisions. By the end of the decision making
process, however, participants report distinct coherence. In
other words, the participants’ evaluations of the arguments
changed from incoherence to a final state of coherence; a state
in which one decision dominates the other, resulting in a confident choice. The best explanation for this shift is that it is the
imprint of the coherence-driven cognitive processes that make
the decision possible. It follows that the tendency towards closure is a general cognitive feature, not a particular quirk of the
judicial profession, though I suggest below that it is compounded with features that are specific to the legal culture and
particularly to the judicial function.82 In this final part of the
Article I offer preliminary discussions about three aspects of
the experimental findings that are especially significant for
legal theory.
A.
Bi-Directional Reasoning
The observed shifts towards greater coherence with the
eventual verdict manifest the principal phenomenon associated
with Gestalt theory and its progeny, constraint satisfaction
827, 859 (1988).
81 See Psychological Model, supra note 12, at 102-21.
82 See infra Part III. C.
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theories. Structural pressures spread throughout the network,
forcing all the elements towards a point of equilibrium at
which the arguments cohere with the chosen decision. These
shifts, borne by a global coherenc e with the emerging result,
are what give the reasoning process its bi-directional character.
The decision is presumably driven by the inferences made from
the materials, but the materials, in turn, are changed by the
coherence-driven mechanisms. As a result, the materials lend
the decision far greater argumentative support than they
would have had absent these changes. This mental state of exaggerated support is then reflected in the sense of closure presented in the judicial opinion. I suggest that the source of the
critics’ discontent is the claim of exaggerated closure.
From a normative perspective, this criticism is quite
justified. Theories of reasoning in both law and psychology
have been heavily influenced by a number of assumptions derived from formal accounts of deductive logic.83 A central principle of these models is that the flow of inferences is exclusively
unidirectional. This assumption can be traced to the logic of
deductive argument, in which the task is to infer conclusions
from premises, while the premises themselves are to be accepted as binding. Unidirectionality rules out “reverse” inferences in which conclusions have any effect on the evaluation of
the premises. Violations of this assumption are generally
viewed as signs of the frailty of human reasoning or of unprincipled decision-making; in the legal context, this amounts to a
violation of an avowed tenet of judicial reasoning. Yet, to some
degree, reverse influences are inherent to the processing constraint satisfaction mechanisms.
Constraint satisfaction mechanisms bare a resemblance
to the mechanism of reflective equilibrium that is central to
John Rawls’ Theory of Justice.84 In searching for an interpretation of the initial situation that accommodates one’s reasoned
judgment, Rawls suggests working “from both ends,” gradually
83
See Ruggero J. Aldisert, Logic For Lawyers: A Guide to Clear Legal Thinking (3d ed. 1977); Evans, J. St. B. T., Bias in Human Reasoning: Causes and Consequences (1989); L. J. Rips, The Psychology of Proof: Deductive Reasoning in Human
Thinking (1994).
84 John Rawls, A Theory of Justice (2d ed. 1999).
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bringing both the initial condition and the judgment derived
from it into harmony.85 At the end of the process, the justification of a conception of justice is a matter of the “mutual support of many considerations, of everything fitting together into
one coherent view.”86 Gestaltian dynamics are observed also in
Frank Michelman’s view of a “two way traffic” flow in the relationship between moral theory and legal thought.87 The empirical findings made in the coherence experiments seem quite
consistent with these philosophical theories.
It must be acknowledged, however, that while reflective
equilibrium might be regarded as an accurate account of decision making and a desirable methodology for resolving questions of moral philosophy, its suitability as a theory of judging
is less than obvious. The strength and integrity of reflective
equilibrium are in its forthright acknowledgment of its inherent bi-directionality. As Rawls explains, the process is as much
about justifying one’s convictions of social justice as it is about
conceptualizing the original position.88 This avowed bidirectionality is patently inconsistent with the current conve ntions of judicial reasoning. Whether it can be conceptually
made to fit into the judicial function is a question left for further examination.
B.
Judicial Phenomenology
As discussed above, the coherence experimentation suggests that constraint satisfaction mechanisms operate absent
85
Rawls explains:
By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles that match our considered judgments duly
pruned and adjusted. This state of affairs I refer to as reflective equ ilibrium.
RAWLS, supra note 84, at 18.
86 Id. at 19.
87 See Frank I. Michelman, Legalism and Humankind, in THE G OOD LIFE AND
THE HUMAN G OOD 190 (Elen Frankel Paul et al. eds., 1992). Michelman suggests the
“two way traffic” models apply also to the relationship between high-level prescription
and specific understandings of human nature. For another application of similar notions, see Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional
Interpretation, 100 HARV . L. REV . 1189 (1987).
88 RAWLS, supra note 84, at 17.
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conscious control and without awareness. Specifically, people
do not notice that their evaluations of the materials change
throughout the process from an initial state of conflict and ambiguity towards a final state of coherence and certainty. As
stated above, these findings are consistent with previous research on attitude-change in social psychology.89 They are consistent also with a recent body of research that shows that
higher level mental processes—including goal pursuit, judgment, and interpersonal behavior—can occur in the absence of
conscious choice, deliberation, or guidance.90 This lack of
awareness suggests that, from a phenomenological perspective,
people’s reports of closure are largely genuine.
This point is of particular importance for an understanding not only of the judicial function, but also of the judiciary’s critics. It suggests that the professed dominance of the
chosen verdict is not necessarily contrived or otherwise disingenuous; it can be assumed that in some —perhaps most —
situations, judges describe the arguments as compelling because that is the way they actually perceive the materials at
the end of the decision-making process. Sensitivity to the
judges’ subjective experience thus puts into question one of the
most persistent and acerbic criticisms of judging. The dubiousness of the professed closure in light of the apparent openness
need not lead to the conclusion of judicial bad faith; it can be
better understood as a phenomenologically genuine modification of the materials. In this context, I am in complete agreement with Winter’s effort to fill in the excluded middle.91 While
the judicial account of closure is largely incorrect, judges are
not bad faith actors. To criticize the judicial function, one need
to examine the phenomenology of judging in light of what the
research teache s about the consciousness of mental processing.
C.
Confidence, Credibility, and Persuasion
One possible conclusion from the research is that the
very features of constraint satisfaction processes that make
them an effective way of executing the decision-making task,
89
See supra note 69 and accompanying text.
For a review, see John A. Bargh & Melissa J. Ferguson, Beyond Behaviorism: On the Automaticity of Higher Mental Processes, 126 PSYCHOL. BULL. 925 (2000).
91 WINTER, supra note 1, at 158.
90
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might hinder the subsequent task of communicating the decision to other audiences. In other words, the concern is that the
internal experience of dominance and the ensuing confidence
could be unpersuasive to third parties.92 As it turns out, this
concern has little effect outside the limited circle of judicial
critics, as evidenced, inter alia, by the prevalence and persistence of this style of reasoning. The legal profession as a whole,
not to mention the broader citizenry, show no aversion to the
judicial claims to closure. Most readers of judicial opinions are
apparently willing to accept the professed constraint and inevitability even though it is quite apparent that the legal materials do not compel the chosen decision. They are willing to accept it even in the face of a dissenting opinion that is diametrically opposed on virtually every argument, and professes to be
inevitably constrained by the same legal materials.
There is preliminary empirical evidence that people in
general are not par ticularly insistent on well-reasoned elaborations, and that they even display a preference for one-sided
arguments of complex issues.93 Thus it is quite possible that
the judicial style of closure has persisted because the imprints
of the judges’ cognitive processes are compatible with the inclinations of their audiences. Indeed, there might be more than a
mere coincidence here. Given the central role played by judicial
reasoning in forging the argumentative conventions of the legal
culture,94 it should not be surprising that the legal community
has come to perceive closure as the normal and proper style of
judicial argument. Indeed, the occasional admissions of open92
On the important connection between the cognitive processes and their persuasiveness, see WINTER, supra note 1, at 152-53.
93 In an experiment by Jonathan Baron, participants were presented with
texts containing arguments supporting different positions on the topic of abortion.
Some of the texts contained only arguments supporting one side of the issue, while
other texts contained two-sided arguments. The participants were asked to “evaluate
the thinking” of the person who wrote those arguments. Participants were specifically
admonished to focus on the quality of the reasoning. The interesting finding was that
participants gave significantly higher rating to texts containing one-sided arguments
than to those that offered arguments supporting both sides of the issue. This finding
was true regardless of the participants’ own opinions on the topic. See Jonathan Baron,
Myside Bias in Thinking About Abortion, 7 THINKING AND REASONING 221-35 (1995).
94 On the centrality of the judicial opinion in the development of legal discourse, see James Boyd White, Rhetoric and Law: The Arts of Cultural and Communal
Life, in HERACLES’ BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW 110
(1985); JAMES BOYD WHITE , JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND
LEGAL CRITICISM 101-02 (1990).
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ness in an opinion seem to be met with overt dissatisfaction,95
whereas criticism of closure is rarely found outside the limited
circle of critical academics.96 It is quite plausible, then, that the
95 For example, in Denver Area Educational Telecommunications Consortium,
Inc. v. FCC, 518 U.S. 727 (1996), Justice Breyer concluded that none of the available
paradigmatic standards of free speech—broadcast, common carrier, or bookstore—
seemed to fit the case of a local cable television system. Id. at 741-42. Noting the rapid
changes taking place in the world of communications, Breyer stated that it would be
“unwise and unnecessary definitively to pick one analogy or one specific set of words,”
id. at 742, and proceeded to decide the case on narrower grounds. The interesting point
here is that this admission of openness evoked reactions from his brethren justices and
legal commentators. His position was congratulated by three justices (Souter, Stevens,
and O’Connor), see id. at 768, 777, 779-80, but criticized by Justices Kennedy and
Ginsburg for being standard-less, for losing sight with the doctrine—in short, for being
“adrift.” Id. at 780-81. All this could have been prevented, these Justices admonish,
had the court had “the discipline” to adhere more closely to existing doctrinal propositions. Id. at 780. This frank, and rather mild, judicial statement by Justice Breyer
sparked an article in the New York Times, entitled When a Justice Suffers From Indecision. The article included a comment by Floyd Abrams, a leading First Amendment
practitioner, who found the decision “disturbing.” Abrams explained: “[W]hen the
Court deliberately avoids the use of legal doctrine, it means you don’t know what the
law is.” See Linda Greenhouse, When a Justice Suffers From Indecision, N.Y. TIMES ,
July 14, 1996, at D5. Similar criticism was made by the former general counsel to the
Federal Communications Commissioner, Bruce Fein. Writing for the American Lawyer
News Service, Fein stated: “Only a judge whose mental faculties have fossilized could
not smuggle in personal free speech predilections under Breyer’s non-standard standard.” TEX. LAW ., July 22, 1996, at 25.
A similar response followed a recent case in which the Delaware Chancery
Court issued an unusual order forcing one company to purchase its merger partner for
a mere $3 billion. Explaining the decision in this high stake case, Judge Leo Strine Jr.
admitted to have been “confessedly torn” and uncertain about a number of issues involved. One legal observer expressed concern to the Wall Street Journal over the decision “because equivocating in writing doesn’t inspire confidence.” See Robin Sidel,
Deals & Deal Makers: Leo Strine Issues Rulings, and Entertains His Audiences, as
Judge on Takeover Case, WALL STREET J., June 26, 2001, at C1.
96 To be sure, there must also be instances of the opposite criticism. I have
come across one such example. A report by the Chicago Council of Lawyers reviewing
members of the bar’s opinions of the Court of Appeals of the Seventh Circuit expresses
serious criticism of one of the Court’s judges, John L. Coffey. One of the central criticisms is that the Judge’s opinions are “almost invariably written forcefully in favor of a
particular result and they also typically treat that result as being clear and beyond
dispute. . . . Judge Coffey’s opinions rarely acknowledge serious factual or legal uncertainties, however. These problems are exacerbated by Judge Coffey’s tendency to go too
far in attempting to prove that a given result is the right one for every conceivable
reason.” See Chicago Council of Lawyers, Evaluation of the United States Court of
Appeals For the Seventh Circuit, 43 DE PAUL L. REV . 673, 732 (1994). It should be noted
that in this case, the council expressed concerns also with the apparent influence of
Judge Coffey’s “personal values and biases” on his performance as well as with his poor
interpersonal relations. Id. at 734. It is not obvious that the criticism of the Judge’s
style would have been made had the council not had substantive complaints against
him.
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imprints of the cognitive process influence not only the way
opinions are written, but also the way in which we generally
perform legal argument.97
CONCLUSION AND DIRECTIONS FOR FUTURE RESEARCH
The findings and conclusions presented in this Article
might be somewhat disconcerting, even for the critical observer
who agrees that excessive closure is hardly a desirable style of
judicial reasoning.98 Given that coherence effects occur absent
conscious control and without awareness, recasting the jurisprudential debate as hinging on cognitive psychological phenomena might invite a pessimistic response. This depiction
seems to leave little prospect for reform.
It must be emphasized, however, that the cognitive
phenomena discussed here are not invariant nor completely
insular. Gestaltian psychologists have long insisted that me ntal processing is always sensitive to environmental contexts, or
the psychological fields, within which the behavior is performed.99 Indeed, cognitive phenomena vary across cultures
and contexts.100 Thus, judicial coherence is a function not only
of the basic cognitive mechanisms and of a number of taskrelated characteristics—including the need to make binary
judgments101 and the desire to terminate the state of indeci97
I have elsewhere discussed the problems that are caused by this discursive
style. See, Psychological Model, supra note 12, at 127-34.
98 I have elsewhere argued that excessive closure has a corrosive effect on the
judicial decision making process in that it endorses too much and criticizes too much; it
obfuscates rather than clarifies difficult legal questions; it dampens the tendency to
fully explore the issues at stake; and it might also have an adverse effect on the type of
people who join and excel on the bench. See Psychological Model, supra note 12, at 12733.
99 See Kurt Lewin, The Dynamic Theory of Personality (1935).
100 See e.g., Steven Heine & Darrin Lehman, Culture, Dissonance, and SelfAffirmation, 23 PERSONALITY & SOC. PSYCHOL. BULL. 389 (1997); see also Kaiping Peng
& Richard E. Nisbett, Culture, Dialectics, and Reasoning About Contradiction, 54
AMERICAN PSYCHOLOGIST 741-54 (1999).
101 Judges highlight the general fact that their task is “to decide, not to debate.” HAND, supra note 77 at 131. Jerome Frank stated that legal argument is affected
by the fact that “lawyers, more than most men, are compelled to reconcile incompatibles.” JEROME FRANK, MODERN MIND, 33 (1930).
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sion102—it is sensitive also to the legal culture and to judicial
role expectations. In the current legal atmosphere, coherence
seems to be exacerbated by the belief that closure is broadly
seen as a factor that enhances the acceptability of the decision
and promotes the institutional legitimacy of the court.103 This,
however, need not be the case. One can imagine a different legal culture that would be conducive to a somewhat different
style of reasoning.104 For its part, cognitive psychology should
facilitate reform by providing a richer understanding of the
coherence effects, specifically, by identifying the conditions
that would enable judges to be more responsive to both the
freedom and the constraint involved in adjudication.
102 Posner speaks of judges’ aversion to wallowing in uncertainty and regrets.
Following Pierce, he states “people hate being in a state of doubt and will do whatever
is necessary to move from doubt to belief.” Posner, supra note 80, at 873. On the effect
of tension on decision making, see IRVING JANIS & LEON MANN, DECISION MAKING: A
PSYCHOLOGICAL ANALYSIS OF CONFLICT, CHOICE , AND COMMITMENT 45-54 (1976).
103 For example, Posner suggests that, like all other people, judges want “to
diffuse responsibility for their unpopular, controversial, or simply most consequential
actions, and they do this by persuading themselves that their decisions are dictated by
law, rather than the result of choice.” Posner, supra note 80, at 873.
104 I have offered a preliminary sketch of one possible cultural alternative. See
Psychological Model, supra note 12, at 137-41.
WHAT IT REALLY MEANS TO SAY “LAW IS
POLITICS”: POLITICAL HISTORY AND LEGAL
ARGUMENT IN BUSH v. GORE∗
Peter Gabel†
INTRODUCTION
In the early afternoon of December 8, 2000—five weeks
into the national debate about who had won the presidential
election and four days before the United States Supreme Court
settled the matter1—San Francisco’s 24 Divisidero bus was
making its way along its cross-town route. On the surface,
everything seemed normal on that bus—the passengers
isolated in their passive roles, staring blankly straight ahead
or looking aimlessly out of their windows, each avoiding eye
contact with the other, proceeding along on the conveyor belt of
social alienation that has imprisoned so many of us so much of
the time for the last twenty years.
Then suddenly a big guy in a brown leather jacket got
on the bus at Haight Street and shouted, “The Florida
∗
©2002 Peter Gabel. All Rights Reserved.
† Peter Gabel is a law professor at New College Law School, a founder of the
Critical Legal Studies movement, and author of THE BANK TELLER AND O THER ESSAYS
ON THE POLITICS OF MEANING (2000). An earlier version of this paper was presented at
a panel of the Law and Interpretation Section of the Association of American Law
Schools held in San Francisco, California in January, 2001. The panel was organized to
discuss Steven L. Winter’s then forthcoming publication of A Clearing in the Forest:
Law, Life, and Mind. Brooklyn Law School Professor Gary Minda was Chair of the
Law and Interpretation Section at the time.
1 Bush v. Gore, 531 U.S. 98 (2000) (holding that standardless manual recounts
violated the Equal Protection Clause of the Fourteenth Amendment).
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Supreme Court decided for Gore 4–3!” 2 Instantly, people leaped
out of their seats, threw their arms around each other and
began dancing for joy, talking to each other and speculating
with new hope that perhaps the forces trying to stop the
Florida vote-count could be defeated. Eventually, everyone
calmed down and took their seats, but they sat closer to each
other than they had before and continued to talk, to connect,
about the election.
Now that we are sealed in the Bush presidency, it is
difficult to remember that in the six weeks between the first
Tuesday in November and December 12, 2000, Something
Happened.3 The chaos of Election Night, the wrong calls of the
networks, Gore’s calling Bush to concede and then calling him
back to retract the concession as last-minute Florida vote totals
were phoned in to him in his car, Bush’s all too human “Do
what you gotta do” reply oddly undermining the soft-toned halo
with which the media had just presidentialized his televised
likeness as it sought to elevate him from mere personhood to
George Walker Bush, Forty-Third President of the United
States, and then the bafflement of the experts about what was
to happen next and the inability of the television anchors to
anchor anything—all of this accidentally but decisively
disrupted the coherence of what was supposed to be an
institutionalized political ritual of which we the people were
supposed to be passive, numbly enthralled spectators, just as
we had been of the debates and the political ads and the
scripted role-behavior of the candidates leading up to the
election. And with the dissolution of the object comes the
dissolution of the subject—the inability of the election to unfold
as “watched democracy,” as a numerical activity of “counting to
a result” that is the only unity that the common product of
isolated and detached voters can have, suddenly and
spontaneously released us en masse from our reciprocal
disconnection as detached spectators and hurled us into a kind
of disorganized and exciting engagement with each other.
Rather than being an external and alien process in which each
2 Gore v. Harris, 772 So. 2d 1243 (Fla. 2000) (holding that Gore satisfied his
burden of proof with respect to the Miami-Dade County Canvassing Board’s failure to
tabulate, and therefore ordered a hand recount of the 9,000 ballots in Miami-Dade
County).
3 See JOSEPH HELLER, SOMETHING HAPPENED (1974).
2002]
BUSH v. GORE
1143
of us watches who “the others” elect, with each of us being both
observer and “one of the others” in our capacity as voters, the
election suddenly became real because we became real. We
suddenly became The People.
Today, so many months and so much history later, it is
difficult to remember that at that moment, right below the
surface, a majority of Americans really cared about the
outcome of the election and could have been mobilized to insist
that their democratic wish be respected. But that didn’t
happen. Instead, in part because of what Al Gore and his
lawyers did, in part because of the success of twenty years of a
conservative assault on our collective hopes and our
willingness to believe in the possibility of a new and more
connected social order, we succumbed in a resigned and
depressive way to an outcome which was neither legitimate nor
desired.
Understanding how we got into this mess is an urgent
task if we are ever to rekindle hope for social change. As the
media bows to Bush and the narrow parameters of the current
conservative world-view, we have an obligation to not let the
embers of our collective hope be extinguished. We need to
understand exactly how we allowed ourselves to be
disempowered, how we allowed the spirit expressed on that bus
to disappear from public life and from our collective memory of
what was really possible. That’s why it’s important to go back
and understand the lost opportunity that was Bush v. Gore.4
Most Americans know that there was something wrong
with what the Court did in Bush v. Gore,5 the Supreme Court
decision awarding the presidential election to George Bush.
They know that we are supposed to be living in a democracy
and that it just can’t have been legally justified for the Court to
have jumped in and peremptorily declared the winner before
every reasonable effort had been made to count every vote in
every instance where the intent of the voter could reasonably
be determined. This widespread sense that the Court majority
somehow abused its authority was intensified by the manner in
which the Court intervened in the process—overturning the
Florida Supreme Court’s first seemingly reasonable and brief
4
5
531 U.S. 98.
Id.
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extension of the certification deadline on the basis of some
rarified legal objection that nobody could understand,6 and
then a week later blocking a statewide manual recount of
machine-rejected ballots on the basis of a completely different
legal objection not even mentioned the first time they tried to
stop the count from proceeding.7 You didn’t need to be a legal
scholar to know that Justices Rehnquist, Thomas, Scalia,
O’Connor, and Kennedy wanted to stop that vote-count and
were intent on finding a legal justification for doing so no
matter what. It is in fact almost impossible to reconcile the two
Court interventions with each other or to find any legal
authority for the election-terminating aspect of the final
decision.8
Yet the meaning of what was “political” about Bush v.
Gore is not that the Supreme Court failed to follow something
called “the rule of law” that is not political. On the contrary. By
going so far beyond the legitimate limits of constitutional
interpretation, the Court made transparent what is usually
mystified—the political nature of all legal reasoning. The
political choices made by the Court were possible because Gore
and his legal team chose to frame the issues in ways that
reinforced a conservative political climate which had been
building for the past thirty years. If we ever hope to move
beyond that triumph of political conservatism, we need to fully
understand how it has become embodied in law and how it
manifests in politics. A perfect place to begin is to see how this
conservatism shaped Gore’s legal strategy and guaranteed its
ineffectiveness—and why Gore and others around him couldn’t
understand how self-defeating that strategy was.
I.
VOTING R IGHTS, NOT STATES ’ R IGHTS
The core of the legal position chosen by Gore and his
lawyers was their decision to base their argument for a manual
recount in Florida on “states’ rights” rather than on “voting
6 Bush
v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000).
See generally Bush v. Gore, 531 U.S. 98.
8 See Bush v. Gore, 531 U.S. at 123. (Stevens, Ginsburg, & Breyer, J.J.,
dissenting).
7
2002]
BUSH v. GORE
1145
rights.”9 From election night on, it was clear that Gore had won
the popular vote by about 500,000 votes, a margin far greater
than Kennedy’s victory over Nixon in 1960 and greater than
Nixon’s victory over Humphrey in 1968. Gore had gained this
popular democratic majority through the efforts of blacks,
women, and working people who had come out to vote in large
numbers between 5 p.m. and 8 p.m. all across the country.
These constituencies had all won the right to vote through long
and difficult struggles over the past 200 years. They did so in
the name of the expansion of the ideal of popular democracy as
the very foundation of what it means to be an American.
Whatever criticisms and even cynicism these constituencies
feel toward the American political system, if they share an
idealistic belief about anything in their identification with
being an American, it is that they’ve got the right to vote, that
they fought for it, and that it’s sacred.
Although the text of the Constitution itself does not
guarantee the right to vote, the Fourteenth Amendment,10 the
Fifteenth Amendment,11 the Nineteenth Amendment,12 and the
Twenty-Fourth Amendment,13 as well as a long line of
venerated Supreme Court cases interpreting them,14 all affirm
that the right to vote is the nation’s most sacred political value.
Even though the electoral college has retained its place as the
means for selecting the president—a power granted to it in the
eighteenth century when none of Gore’s core constituencies had
yet won the right to vote and when states had no obligation to
(and sometimes did not) hold popular elections for president—
the movement of the last 200 years has unquestionably been
toward the expansion of popular democracy carried out by
universal suffrage as the basis of political legitimacy.
Against this backdrop, it seems clear that Gore’s legal
argument for supporting the Florida Supreme Court’s decision
to allow a manual recount, both in the first and second of his
9 See Brief for Respondent at 43-50, Bush v. Gore, 531 U.S. 98 (2000) (No. 00949) [hereinafter Brief for Respondent].
10 U.S. CONST. amend. XIV.
11 U.S. CONST. amend. XV.
12 U.S. CONST. amend. XIX.
13 U.S. CONST. amend. XXIV.
14 See, e.g., Oregon v. Mitchell, 400 U.S. 112 (1970) (and cases cited therein).
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U.S. Supreme Court appeals,15 should have been that the
constitutional right to vote, and to have one’s vote counted, is
more important than more-or-less arbitrary state deadlines.
The central argument of Lawrence Tribe and David Boies
should have been to uphold the Florida Supreme Court on the
grounds that their interpretation of conflicting Florida state
laws—allowing the manual recounts called for in one statute
over another statute imposing a deadline on submitting
certified vote totals that would have made the manual recounts
impossible—reflected not only a normal and inevitable
responsibility of a state Supreme Court to resolve conflicts in
state legislation, but also a responsibility that the Florida
Court carried out in a manner consistent with the highest
value of the Constitution of the United States—namely, that in
a national presidential election especially, the right to vote and
to have one’s vote counted must take precedence over
certification deadlines that have little practical or moral
significance. 16
This approach would have aligned Gore’s political and
moral claims with his legal claim and mobilized the
constituencies that made up his popular majority. Gore would
have been speaking before the Court in support of the
universal voting rights of all of us in a democracy, including
those of us in the other forty-nine states, rather than making
an amoral argument in support of the right of the State of
Florida to not be bound by any such compelling universal
ethical claim. If he had done this, he would have spoken, for
example, for me, one of millions of Nader supporters who voted
for Gore at the last minute to keep Bush out of the White
15 See Bush v. Gore, 531 U.S. at 98; see also Bush v. Palm Beach County
Canvassing Bd., 531 U.S. at 70.
16 In failing to assert the centrality of the Constitutional right to vote in
supporting the Florida Supreme Court’s interpretation of state law, rejecting even the
existence of a federal question and defending only the appropriateness of that Court’s
reliance on Florida’s state -based right to vote in resolving the statutory conflict, the
Gore argument presented an image of the U.S. Supreme Court as powerless to
authoritatively declare the substantive moral correctness of the Gore position. Thus
had the Florida Supreme Court decided for Bush, Gore’s stance would have left the
U.S. Supreme Court powerless to reverse on the basis of the moral pre-eminence of the
constitutional right to vote. The mobilized political moment required Gore to affirm the
Court’s Constitutional authority to decide for him in the name of democracy and to
make a “call” upon the moral and legal responsibility of the Justices to do so. See infra
text accompanying notes 27-29.
2002]
BUSH v. GORE
1147
House. He would have acknowledged my stake, as a California
Gore voter, in whether the manual recount in Florida took
place. This was the time to act—at a moment when the right to
vote had a genuinely utopian, Walt Whitmanesque, democratic
resonance—when the whole country was on the edge of its seat
over a matter suddenly filled with vital political and moral
American importance.
Had Gore argued for voting rights instead of states’
rights, he would have put the Supreme Court in the position of
saying to Gore vo ters across the country, “No, you don’t have
the right to vote” because of some technical rule (whether that
rule was Katherine Harris’s deadlines or obscure federal
statutory provisions). If Gore had argued for voting rights, the
Court’s reliance on technicalities would have been accorded
little legitimacy in the face of everyone’s common sense
assumption that in electing a president, the right to vote
should trump such trivialities.
But it didn’t happen. Instead, something quite silly
happened—namely, that with the entire country focused on
what would be said before the Supreme Court, Gore’s lawyers
said something that nobody could understand. At the very
moment when the simplest of arguments would have mobilized
and united Gore’s national base, his lawyers took a position
before the Court that excluded all non-Florida voters, and was
in any case incomprehensible to anyone except the lawyer/law professor talking heads trying in vain to explain eighteenthand nineteenth-century technicalities to a baffled population
who thought this was about the right to vote.
Why? The answer to this question is the answer to the
election itself, to why the Court thought it could get involved,
why it did, and why it correctly sensed it could get away with
even contradictory and irrational decisions to put the wrong
man in office.
The answer is that over the course of the last twenty
years, beginning with the collapse of the social movements of
the 1960s and the election of Ronald Reagan, the Right has
successfully and gradually capitalized on the doubt pervading
the forces of social transformation in such a way as to make
people lose faith in the existence of a hopeful and idealistic
universal public sphere in which there is a “We”—an activist
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and more-or-less united public community—struggling for a
better world against the fearful forces of the status quo.
II.
THE REAGAN REVOLUTION
The heart of the Reagan Revolution was a sort of
snapping or reversal of the public energy that had given rise to
the Labor movement of the 1930s, the New Deal, and the
multiple and overlapping movements of the 1960s (including
the civil rights movement, the student/anti-war movement, the
women’s movement, the gay-and-lesbian movement, and
multiple other transformative efforts). Although all of these
movements continue to have positive effects on the larger
society, in their universal “movement” dimension they had
begun by the late 1970s to be pervaded by what I would call
ontological doubt—by a rotating loss of faith or confidence in
their capacity to fundamentally transform the world. The
dynamics that brought about this worldwide loss of confidence
are complex, and I have explored them elsewhere.17 But
conservatives in America, who had begun to really organize
against the ideas—all of the ideas—of the Left following the
defeat of Barry Goldwater in 1964, were able to seize on this
collective doubt and turn it decisively to their advantage. To
use a simple but compelling Freudian metaphor, they were
able to turn the wrath of the cultural superego against the
communal longings of the id.
In the public political sphere, their Revolution found its
leader in the benign authoritarianism of Ronald Reagan who,
in 1980, was able to unify two idealistic images to forge a new
national and international hegemonic base. One was the
utopian image of the nuclear family, immortalized in the
historical sense of the word in Reagan’s “Morning in America”
ad that showed a mother holding her newborn baby and
promising a restoration of the ideal love that conservatives
associate with the family as the only safe location of social
trust. The other was a declaration of ideological war against
the Evil Empire, which in a formal sense referred to the Soviet
17 See Peter Gabel, How the Left Was Lost: A Eulogy for the Sixties, in PETER
G ABEL, THE BANK TELLER AND O THER ESSAYS ON THE POLITICS OF MEANING 78-82
(2000).
2002]
BUSH v. GORE
1149
Union but symbolically referred to the totality of the
movements of the Left as the source of chaos, division, and
profound psychic danger.
In the legislative sphere, the Revolution took the form of
a new and intense opposition to the entitlement programs,
whose expansion had begun with the triumph of the New Deal
in the 1930s and had continued with the vast expansion of civil
rights and social welfare programs born of the movements of
the 1960s. Government as a carrier of collective hope and care
was replaced by the “army of faceless bureaucrats” from whose
coercive power “we” longed to be free again by “getting the
government off our backs.”
But it is in the legal sphere that we find the seeds of
Bush v. Gore. While Reagan’s election and persona represented
the hot moment in which the energy that was the Sixties was
reversed, the long-term legitimacy of Reagan’s revolution
required a much more drawn-out process of converting the
initial hot political moment into a passively accepted legal
order. This, in turn, required the gradual dismantling of the
political assumptions that had for fifty years supported the
progressive ideals of the activist New Deal state and replacing
them with new conservative assumptions about the nature of
“our constitutional democracy” and the meaning of “the rule of
law” as seen through the lens of the new conservative
worldview. Beginning in the late 1970s with the replacement of
the Warren Court by the Burger Court, this shift in legal
paradigm was gradually implemented over a period of more
than twenty years through three principal doctrinal strategies.
The first of these was the resurgence of “the
jurisprudence of original intention” as central to the process of
constitutional interpretation. When I attended law school in
the years 1969 through 1972, lip service was always given to
ascertaining the intent of the framers when interpreting the
meaning of the Constitution, but the dominant consensus was
that the intent-of-the-framers’ view had long since given way to
the idea that the Constitution was an “evolving document” that
ought to reflect the progressive values inherent in the nation’s
developing conception of political morality. That the Commerce
Clause and the Equal Protection and Due Process Clauses
should be interpreted to require, or at least permit, collective
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governmental intervention in the service of a new, universally
accepted conception of social justice was more or less taken for
granted as the basis for requiring (or at least upholding)
legislatively-enacted progressive governmental action. But
following Reagan’s election in 1980 and continuing with
greater conviction after his re-election in 1984, conservatives—
such as then-Attorney General Ed Meese and neo-conservative
legal intellectuals throughout the legal academy and within
the now established post-Goldwater think tanks like the
Heritage Foundation, Stanford’s Hoover Institute, and the
American Enterprise Institute—decisively challenged this
liberal orthodoxy, insisting instead that it was the Original
Intent of the Founding Fathers, and not the views of random
contemporary judges “applying their own moral opinions,” that
should guide the interpretive process.
The effect of this largely successful shift to Original
Intent theory was to invoke the great Image of Paternal
Authority to deny the existence of a universally shared,
progressive public sphere that provided a political basis for
left-liberal constitutional interpretation. Never mind that the
drafters of the Constitution were mainly a group of twenty and
thirty-year-olds whose consciousness was shaped in and by the
eighteenth century; they were the “Founding Fathers” whose
sanctity and eternal prescience could be resuscitated with such
force that Reagan could openly ridicule anyone who spoke the
“L-word” (“liberal,” for those of you too young to remember) in
support of the constitutionality of liberal entitlement programs
or in support of, say, the public right of workers to picket on
now properly re-privatized property of the owners of malls and
shopping centers.
The second major shift in legal theory and doctrine
occurred in the realm of so-called private law with the rise of
the Law and Econo mics movement, providing a new rationale
for limits on judicial and legislative decision making. Against
the progressive claims emerging from the social political
movements of the 1930s and the 1960s that human beings are
bound together by communal, moral, and ethical values that
must be central to the development of our legal culture, the
Law and Economics movement emerged from the ascendant
conservative intelligentsia. It has sought to empty legal
2002]
BUSH v. GORE
1151
doctrine of socially-binding moral content and aspirations by
reinstating the primacy of the freedom of the isolated
individual, who must be free to do whatever he or she wants
unless he or she is paid for any legal constraints placed on that
freedom by the community (now reduced to a mere collection of
other isolated individuals).
Although the humanization of the image of the isolated
individual as “he or she” has had ideological power, its true
economic meaning has been to rationalize the unfettered
expansion of global corporate power by serving as a cultural
weapon in support of deregulation. And while in its technical
aspects the Law and Economics movement has had only a
limited direct effect on the discourse of judicial opinions (with
notable exceptions such as Judge Richard Posner of the
Seventh Circuit), it has become the dominant ideology in
American law schools; it has provided the ideological
foundation for near-universal pre-eminence of cost-benefit
analysis in corporate and legislative decision making; and it
has deeply influenced the increasing dissolution of the use of
moral discourse in common-law decision making in such
private law areas as contracts, torts, property, and
corporations. In the context of the gradual legalization of the
Reagan Revolution, it has contributed importantly to the
disintegration of popular belief in the existence of a legally
recognizable and public moral community by supporting the
image that, apart from the sanctity of the private family and
equally private religious affiliations, “we” are a nation of
individuals legally bound each to the other only by money, by
economic self-interest.
The third major doctrinal shift that has served to
gradually legalize the Reagan Revolution—and the one of most
direct relevance to understanding the Supreme Court’s
interpretive strategy in Bush v. Gore and to the political
capacity of the Court majority to decide the 2000 election in the
way that it did without a popular revolt—has been the rise of
the “new federalism.” Emerging originally in the jurisprudence
of the Burger Court in the late 1970s18 and with greater
18 I foretold the political meaning of the rise of the new federalism and its
relationship to “legalizing” the Reagan Revolution in The Mass Psychology of the New
Federalism: How the Burger Court’s Political Imagery Legitimizes the Privatization of
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confidence following Reagan’s first election, the new federalism
has been, at one level, simply a return to giving much greater
deferenc e to states’ rights in constitutional interpretation. But
in a deeper sense, the doctrine signaled a shift in the official
imagery within American legal culture of how “we” are
politically constituted as “a people” within the meaning of the
Constitution as an authoritative document, a shift to a kind of
eighteenth-century idea of the nation as a confederation of
sovereign and separate groupings (or states) who have
reluctantly granted limited powers to the whole (the federal
government).
Originally, of course, the states did emerge out of the
colonies as organic groups divided from one another by
geography, culture, religious conviction, economy, and even to
some extent language. As such, they were understandably
reluctant to subordinate their group integrity and sovereignty
to a remote national government—that is, a remote national
president, legislature, and court system—which, although in
principle “representative” in nature, might well come to use its
overarching power as the spokesperson for the United States to
threaten the moral authority and self-sovereignty of each state.
The role of the electoral college in selecting a national
president, with its allocation of two senatorial votes to each
state regardless of population and its guarantee of a
disproportionate voice in presidential selection to smaller
states, reflects precisely this concern (among other concerns,
including a fear of popular demo cracy) about the potential
“tyrannical” imposition of an alien national power upon the
sovereign states who were the source of that power.
But the rise of the new federalism over the last twenty
years has no authentic relationship to this historical reality of
eighteenth-century life. Virtually no one today feels
distinctively identified in the eighteenth-century sense with
Everyday Life, 52 GEO. WASH. L. REV 263 (1984), in which I wrote:
The Court’s aim is precisely to make the New Right constitutional . . .
by reconstituting the existing hierarchy- system within an imaginary
framework that conforms to a new ‘intent of the framers.’ For in the
long run it is only by transforming the recent wave of right-wing
activism into a passively accepted legal order that the new
conservatism can become a genuinely dominant ideology in the way
that democratic liberalism has been for most of our recent history.
Id. at 270 (emphasis in the original).
2002]
BUSH v. GORE
1153
the state as one’s organic group. On the contrary, the political
history of the last 200 years has been the growing association
of democracy with belonging to one nation, to one culturally
diverse but nevertheless economically, politically, and
culturally integrated group called the United States of
America.
Wars,
technology,
geographical
mobility,
immigration, the socio-economic development of an integrated
capitalist market following increasingly uniform legal rules
and norms, the development of national social movements
transcending regions as well as states, and many other
historical influences have forged a new and concrete historical
reality that has decisively subordinated the state as the locus
of group-identity and belonging to our national identity, to
“being an American.”
Thus we invest far more meaning in national elections
than state elections and attribute far greater emotional and
political importance to American citizenship than to often
transient state citizenship. It would be absurd to claim that the
core meaning of participation in our constitutional democracy
today derives from our connection with the state-based
identifications underlying the confederation-based conception
of strictly limited federal power of 1789.
The rise of a new federalism which rests on this claim of
state-based identifications as the basis of constitutional
democracy must therefore be understood as a largely successful
attempt to resuscitate the image of 1789 federalism and to
imbue the image with the same mystique of cultural authority
that has been projected onto the Founding Fathers and the
search for their Original Intent. These images draw their
fantasy power from the rituals of our social conditioning since
childhood, from the pledge of allegiance to the venerated
annual telling of our origin story in childhood civics and
American history classes, to the sanctified repetition of the
names of the Founding Fathers (the side flap of my cereal box
once boasted, “TOTAL™ brings you Founding Father James
Madison”), to the awe and sense of idolatry attached to the
Constitution itself as a hallowed document in a glass case
whose ideas are somehow “above” those of us mere mortals who
have followed those who penned them.
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If we recall that what we are analyzing here is the
legalization of a conservative revolution designed to reverse
actual flesh-and-blood social movements aiming to give
fundamentally new meanings to who “we” are, new meanings
to the “constitution” of our political and moral bond, the use of
authoritative cultural images that we have all been
conditioned to feel we are supposed to invest with “belief” is the
legal analogue to Reagan’s “Morning in America” ad. In the
context of the Reagan Revolution and its aftermath, these
authoritative and reassuring images seized upon the
anxiety that had come to pervade a real world beset
by political/moral/cultural/generational/economic/racial/sexual
conflict, especially as collective doubt came to corrode the
idealism of the movement that had both generated this conflict
through its transformative impulse and vision and given the
movement in all its diversity its transcendent and hopeful
unity. Because of their power in our shared cultural memory,
these images can be and were appealed to in order to persuade
“Americans” to come home.
In sum, the common aim of the resuscitation of Original
Intent theory, the Law and Economics movement, and the new
federalism has been to employ authoritative group fantasies
about the origins of Ame rica (as the political group to which we
each belong) in the service of erasing the constitutional
legitimacy of a universal public sphere that leaders like Martin
Luther King Jr. and the social movements of the 1930s and
1960s claimed was the very essence of true “constitutional”
politics. It was in that universal public sphere that moral
questions about our common group life were and are contested.
By mobilizing millions of people in the name of “We the
People,” social change movements became the living
embodime nts of democratic ideals as they physically and
spiritually occupied this public sphere and challenged the
political legitimacy of existing arrangements and constitutional
doctrines by seeking to give them a new and progressive moral
content.
2002]
III.
BUSH v. GORE
1155
THE COLLAPSE OF SOCIALISM
In its temporarily successful effort to reverse that
energy, the central element of the conservative legal strategy
has been to close down that public sphere. The core image of
America projected by the new conservative legal order is that of
an individualistic society characterized by a private sphere
driven by material self-interest and a de-politicized public
sphere comprised of morally unconnected and passive citizens,
obedient and deferential to the strict authority of their
Fathers. The significance of the “legal” character of this image
is that calling it “Law” makes it “binding” on our collective
national consciousness. Its gradual internalization has
legitimized the privatization of American culture post-1980
and has contributed decisively to confirming the collective
doubt to which I referred earlier, the sense that if you get
involved and go out into public claiming your democratic
authority to change the world, no one will be there for you
because there is no longer any “there” there, no longer any
“constitutional space” where Martin Luther King Jr. and
millions of other Americans once stood.
To this legal history one other central fact must be
added, an event that cleared the field for the more or less
unchecked development of this conservative world view. That
event was the collapse of the Soviet Union and socialism as an
idea. For 150 years, the idea of socialism had been the
dominant worldwide metaphor for the possibility of a
fundamentally different world based on community rather
than self-interest and the separation of self and other. Every
progressive social movement of the twentieth century in some
way defined itself in relation to the idea of socialism because
however much labor or women or the 1960s counter-culture or
environmentalists or any progressive person agreed or
disagreed with the specific tenets of Marx, socialism’s basic
affirmation that the world could and should be based on social
conne ction and egalitarian community provided a crucial link
between any particular progressive reform within the “whole
world” of capitalism and the possibility of a radically different
universal social vision and “whole world” toward which
particular limited reforms were aiming.
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In addition, the fact that the Soviet Union and the
socialist bloc actually existed and had been able to mount a
protracted long-term challenge to the capitalist ethos all over
the world provided the idea of socialism with at least some
embodied reality, however distorted, anti-democratic, and even
brutal that reality was in its existing incarnation. As events
have shown since the collapse of the Soviet Union in 1989, even
the modern Democratic Party had depended since its origins in
the New Deal on being able to define itself as the alternative,
liberal-democratic path to the humane social vision to which
socialism aspired. Without the moral ideal of community that
socialism as a metaphor had come to stand for, and without
being able to make the claim that it offers the gradual
democratic path toward that ideal that is the correct
alternative to totalitarianism, the Democratic Party has no
anchoring moral world view to distinguish itself from the
Republican’s whole-hearted embrace of capitalist selfinterest—except to appear to be the party of half-hearted
capitalist self-interest, which is hardly the basis of a
compelling moral and political vision that one can expect
people to follow.
After Stalinism, Mao’s cultural revolution, the Khmer
Rouge, and the direct experience that millions of people had of
the unsafe group dynamics that undermined the (otherwise
wonderful, hopeful!) 1960s, nobody could believe any longer
that seizing economic and political power from private
individuals on behalf of the collective through some apocalyptic
revolution could possibly lead to something better than the
lives we lead now, however isolated, alienated, and
meaningless they often are. So by the early 1980s, the socialist
idea had lost its capacity to serve as the unifying
communitarian counter-vision that had made the Left a
powerful and morally compelling force, and when the principal
embodiments of “really existing socialism” vanished from the
earth in 1989, the ideology of individualism appeared to have
“won.” The effect of this was both to give increased legitimacy
to capitalism’s economic, cultural, and political expansion on
an increasingly global level and to greatly weaken the ability of
the longing for community (a longing which exists in everyone)
to even be seen or heard by the other, much less to be
2002]
BUSH v. GORE
1157
mobilized into a movement based on that longing that could
enter public space and make moral claims on behalf of a
universal, transformative alternative to an apparently
vindicated conservative worldview.
The void left by the collapse of socialism as the
dominant political metaphor for community intensified the
ability of the American conservative legal intelligentsia to
carry out its doctrinal disintegration of the constitutionallybinding public morality that the progressive movements of the
1930s and 1960s had fought for. There is no better testament
to the effectiveness of their effort to gradually convert the
Reagan Revolution into a new legal order supported by a new
and widely accepted conservative “common sense” than the
inability of Bill Clinton to make his long presidency stand for
anything. Elected and enormously popular precisely because of
his ability to recognize and validate our universal longing for
community, a capacity that arose in significant part from the
effect on him of the civil rights and other movements of his
youth, Clinton was forced to rely throughout his presidency on
personal charisma and polling data that demonstrated his
“private” popularity among otherwise disconnected individual
voters to enable him to survive politically in a public sphere
totally dominated by his conservative opponents.
Bill Clinton embodied hope, idealism, and communal
aspirations—as the cliché goes, “he made you feel cared
about”—but he could not speak for this ideal and aspiration in
the name of a coherent moral and political vision. That is why
the Right was able to crush his initially popular call for
universal health care; he had no coherent social vision with
which to fight for it in a public sphere now dominated by an
individualist political world view, a worldview which the
Clintons ended up deferring to by basing their legislative
strategy on seeking support from the American Medical
Association, the private insurance companies, and amoral,
implausible claims of cost-efficiency.
Although things might have been different if Clinton
had been able to imagine a new, emerging, spiritual-ecological communal successor to the now-defeated Left and liberal
materialist alternatives, he was, in the end, able to do no more
than to cut his party’s losses by rejecting the failed communal
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metaphors of the past (“the era of big government is over”). In
an act of true political schizophrenia, he used his personal
capacity to evoke warmth and idealistic hope in the service of
expanding the globalization of capital and international trade
agreements, like NAFTA, that consolidated the power of
international, private corporate power. In response to the
uninterrupted progress of the conservative ascendancy in the
social, political, and legal sphere, he consistently took positions
that actually accepted the conservative viewpoint and merely
sought to restrain its influence, defending affirmative action,
for example, with such morally toothless slogans as “mend it,
don’t end it,” and signing the Republican welfare-reform bill in
return for temporary concessions by the Right to ease their
assault on remaining elementary legal protections for labor
and the environment.
Increasingly during the course of his eight years in
office, he was reduced to defining his legacy as “having
presided ove r the greatest economic expansion in history,” an
expansion that demonstrated America’s ability under his
leadership to “compete and win in the world market.” Taken as
a whole, this record actually strengthened public acceptance of
the continuing normalization of the Reagan Revolution,
precisely because it showed that even a popular liberal
Democrat seemed to accept the inevitability of its basic tenets,
and even measured his own success by conservative “free
market” criteria.
IV.
THE WEIGHT OF H ISTORY
By the time of the 2000 presidential election, the
Democratic Party no longer felt capable of even appealing to its
own constituencies on the basis of a progressive social vision.
Having been forced to kneel at the Republican altar for so long,
even former participants in the movements of the 1960s like
Bill and Hillary Clinton abandoned the transformative
convictions that had shaped them (and that were still visible in
both of them as late as 1992), not because they no longer cared,
but because they had nothing to say, no way to translate their
social idealism into a new political idea.
2002]
BUSH v. GORE
1159
Non-movement liberals like Al Gore, who were
influenced by the 1960s but remained fundamentally loyal to
mainstream political values, more fully retreated to the halfhearted conservative worldview. So 2000 found Gore running a
presidential campaign that was merely a pragmatic “less bad
than Bush” laundry-list of disconnected, centrist proposals, like
prescription drug benefits for the elderly, increasing
standardized testing to prepare the work force for the new
global marketplace (but requiring fewer such tests than Bush),
and touting “cost-effectiveness” and a greater ability to
correctly “add up the numbers” as the basis for distinguishing
his Social Security and Medicare proposals from those of Bush.
Behind the moral impotence of the Gore campaign was
a now thoroughly conditioned acceptance that whatever
transformative political ideals once defined his own life
personally and the convictions of his party were now
irrelevant. These ideals could no longer move “We the People”
to leave their private houses and private self-interested
concerns and enter the public sphere to provide a popular base
for a contagious and winning campaign. As a result of this long
process of devolution that I have described and the popular
internalization of a politically passive, conservative political
worldview, Gore rightly understood that while he might win
the election by a lesser-of-two-evils campaign if he could get his
already organized constituencies to get out and vote, he could
not rely on anyone to be there for him if he invoked F.D.R.,
Martin Luther King Jr., and the great egalitarian and
communal traditions of his party’s past.
Thus when the amazing occurred on Election Day and
woke up the American electorate from the now thoroughly
legitimated and seemingly inevitable prisons of their private
and isolated routines, Gore was ill-prepared to mobilize a
suddenly intensely politicized national community. Like
someone who hasn’t gone to the gym for twenty years and is
then suddenly expected to be in shape, Gore and his advisors
were themselves so demobilized by twenty years of political
and moral inactivity that they were incapable of grasping the
opportunity that the accident of the election results and the
ensuing six-week national debate about the meaning of
democracy had handed to them. All over the country, friends
were talking intensely on the phone and strangers were talking
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intensely on street corners about Florida and the right to vote
and Katherine Harris’s attempts to stop the vote count. Highschool and college students actually focused for the first time in
their lives on the electoral college and its ability to trump the
popular vote, intensely discussing and struggling to
understand the seemingly anti-democratic justifications for it.
Within a matter of days, a constitutional democracy
that had come to see itself as but a collection of privatized,
passive, and disconnected individuals suddenly emerged into a
fledgling, but genuine, political community hurled into common
public engagement by the threat that even the right to vote—
the very foundation of American democracy won across
centuries through an intense moral struggle and at the cost of
many lives—might be denied in determining the outcome of a
national presidential election whose democratic legitimacy is
supposedly entirely based on it. Within a few days after
November 7, and for a period lasting almost six weeks,
Americans were galvanized by the one moral imperative and
shared moral bond that even the most conservative
government could not take away from them—the shared moral
certainty that their government’s legitimacy rests on the will of
the people. While the act of voting every two or four years can
often seem to the isolated individual like the most minuscule
act of public self-assertion, the idea that the right to vote could
be taken away was a challenge to the deeply held moral ideal
of democratic self-determination. During the period from
November 7 until December 12, when the Supreme Court
ended the matter, the challenge to that moral ideal was
sufficient to allow the false “we” of a deferential and isolated
people to begin to emerge into a real “we”—an active, collective
presence ready to demand its sovereign birthright.
If we now see this dramatic period following November
7 in the historical context that I have described, we can
understand the collective “political unconscious” underlying
this drama as a struggle between conflicting impulses existing
within each individual and the national community as a whole.
One was the fearful impulse that had sought for twenty years
to block the desire for social connection and for a just,
egalitarian, and erotic community from again becoming a
public force. The other was the utopian democratic impulse—
2002]
BUSH v. GORE
1161
the Walt Whitman impulse in “I Hear America Singing”—that
was accidentally and spontaneously released by the closeness
of the election and the controversy about how it would be
resolved.
The fearful impulse was reflected in the frantic efforts
by Katherine Harris, James Baker, and others to stop the
Florida vote count immediately by strictly interpreting a trivial
deadline for certification and by constantly repeating to a
suddenly aroused and empowered national community the
mantra that “there had already been recount after recount” in
order to prevent the manual counting of uncounted votes. This
fearful impulse also was reflected in the panicky assertion by
some across the country, but especially those in the Bush
campaign, that “we’ve got to know who our president is.” I call
these “fearful impulses” because they were plainly irrational—
there was no pressing need to know the outcome; at stake was
the outcome of a national presidential election, the most
important single incarnation of our democratic process. In the
past Congress has counted state electoral votes received as late
as January 6 (the day of the counting).19 The Constitution and
federal law even provide for a custodial presidency by the
Speaker of the House if there is a delay beyond January 20 in
accurately determining a presidential election’s outcome.20
Florida’s certification deadline was obviously intended merely
to provide a uniform date to guide and coordinate in normal
circumstances a schedule for statewide counts, rather than
having some substantive importance that might justify
certifying an inaccurate result.
But it was the palpable pressing need to “know who our
president is” that best reveals the nature of the fear, a fear
analogous to, say, “not knowing who our Founding Fathers
are.” It was the fear that the closure and de-politicization of
public space that had been so central to the political imagery
underlying the new Right’s “constitutional interpretation”
would be threatened the longer that the absence of a
presidential authority figure left this public space open. This
was especially true because the spontaneous release of the
19 Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics,
110 YALE L.J. 1407, 1421 n.55 (2001).
20 3 U.S.C. § 19(a) (2000).
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right-to-vote popular democratic impulse was creating a sense
of passion and excitement with unknown consequences.
Without quickly “installing a president” and normalizing the
nation’s political structure, no one could be sure what would
bubble up in the vacuum. Thirteen-year-olds might start
asking their parents just what the point of this electoral college
is, and didn’t Gore win the popular vote, and how can
Katherine Harris claim to be objective when she was co-chair of
the Florida Bush for President Committee, and what about
those African Americans I heard were intimidated by the
police? The longer the political space remained opened, the
greater the risk to the legitimacy of a conservative world view
that for twenty years had relied on the passive acceptance of
paternal autho rity.
However, it was Gore, and not the Republicans, who
posed the greatest obstacle to the success of the popular
democratic impulse. Having long since left behind the days
when he liked to smoke pot, grew his hair long, and went off
with his girlfriend in a canoe on a 1960s-inspired journey in
search of the meaning of life, Gore had run a campaign that
remained well within the reigning conservative paradigm,
offering no progressive moral vision of any kind. That in itself
made it difficult to rally behind him in the post-election contest
as the idealistic champion of the people and of popular
democracy. But what made the situation worse was that he
had been so demobilized and co-opted by the devolution of
idealism of the previous twenty years that he himself did not
realize in the post-election period (and I’m sure could not
believe or trust) that the people who generated his substantial
popular vote majority were trying to cast off the enforced
isolation and political inertia of those twenty years and
mobilize to fight for him in the name of democracy, for the
right to vote. Most Americans thought the Republican efforts to
stop the recount were wrong, thought that Katherine Harris’s
repeated attempts to stop the count on the basis of a purported
objective and neutral exercise of her discretion were patently
absurd, and they believed that, with a fair and full count, Gore
had probably won.
But instead of emerging publicly and speaking
passionately on behalf of democracy to and for his own voters,
2002]
BUSH v. GORE
1163
a known majority of the country, Gore assumed the same
posture as Bush, behaving like a remote presidential
candidate, making occasional formal public statements at
which he took no questions, insisting that the vote-count
question was a legal matter to be handled by his lawyers and
the courts, and otherwise holing-up in the vice president’s
mansion and allowing rare photo-ops of family touch-football
games. Instead, he could have come out and thanked the
working people and women and minorities who had poured out
to vote for him after working all day in crucial cities like
Philadelphia and Los Angeles and Miami, exercising their
democratic right to vote for which men like Martin Luther
King Jr. fought and for which so many had lost their lives. Had
he linked their exercise of that right to his fight to have every
vote counted in Florida, Gore would have seized the high moral
ground, mobilized his constituencies, and thoroughly
discredited the efforts of James Baker and the Bush team to
use every method—including the threat of physical violence in
the case of the Republican-organized riot outside the Miami Dade county registrar’s office—to impede democracy’s most
sacred principle. He also would have made the Florida state
legislature’s threatened decision to simply appoint a slate of
Bush electors, irrespective of the outcome of the popular vote,
appear shamefully undemocratic, rather than being legitimate
as technically legal under Article II, Section 1 of the
Constitution.21 By opting instead to try to “act presidential”
and turn the whole matter over to highly paid lawyers, Gore
sacrificed his chance to seize the moral initiative on a matter
that he himself deeply believed in, and allowed the media to
characterize him as no different from Bush, with both sides
represented by an army of lawyers and both motivated simply
by their own self-interest. He also left his popular majority
rudderless while significantly marginalizing the political
importance of his substantial popular -vote victory. By failing to
21 U.S. CONST. art. II § I states:
Each state shall appoint, in such manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of
senators and representatives to which the State may be entitled in the
Congress: but no Senator or Representative, or person holding an
Office of trust or profit under the United States, shall be appointed an
elector.
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see that his true political community were the actual people
who had just voted for him, rather than the version of the
people represented in the image of constitutional democracy
prevailing in the now decisively dominant conservative world
view, he actually created the conditions that legitimized his
own defeat.
V.
WHO ARE “THE PEOPLE”?
This last point deserves emphasis and provides us with
the most important lesson to be drawn from the 2000 election
regarding the relationship between politics and law. When the
United States Supreme Court made its first intervention in
deciding the outcome of the election by taking certiorari in
Bush v. Palm Beach County,22 it informed the lawyers for both
sides that it wanted them to address the question of whether
the Florida Supreme Court’s first decision to extend the time
for the initial recount through the Thanksgiving weekend
violated either Article II, Section 1 of the U.S. Constitution or
the series of federal statutes in Title 3 of the U.S. Code
governing the federal certification of state electors to the
electoral college.23 That request indicated that the Court
majority intended to evaluate the legality of the Florida court’s
decision by measuring it against a version of how “the people”
were “constituted” according to political values prevailing
between 100 and 200 years ago.
In doing so, the Court was calculating, consciously or
unconsciously, that the American people of today, who had just
voted in a democratic election for the nation’s highest office
and had elected one candidate by a 500,000-vote majority,
would nonetheless accept the le gitimacy of a decision by the
Court to decide the election in favor of the other candidate
based on its interpretation of a version of the democratic will of
the American people drawn from the legal materials of a much
earlier and very different time. For example, the dates in the
federal statutory provisions regarding certification of state
electors, one of which the Court eventually used to award the
presidency to Bush without allowing completion of the Florida
22 Bush
23 Bush
v. Palm Beach County Canvassing Bd., 531 U.S. 1004 (2000).
v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000).
2002]
BUSH v. GORE
1165
vote-count, were based on how long it would take to deliver
lists of electors from the several states by horseback to
Washington D.C.24 Similarly, the political values shaping the
version of “the people” reflected in Article II Section 1—the
basis for the Court’s unanimous reversal of the Florida
Supreme Court in the first case25 and the concurring opinion by
Justices Scalia, Thomas, and Rehnquist in the second case26—
would have denied the right to vote to a very large percentage
of Gore’s voters.
The only reason that the Court majority felt they could
take the risk of intervening on this basis was that they
guessed, at the time of their first intervention, that they could
use their fetishized legal authority as the supreme interpreters
of the Intent of the Founding Fathers to superimpose their
eighteenth-century version of the people on the people
themselves, even though the real human beings comprising the
people as a living, democratic, national community had just
spoken. From the standpoint of any present-day understanding
of the political meaning of popular democracy, it was ridiculous
to assert that the Florida Supreme Court was prohibited from
allowing a few extra days to obtain an accurate vote-count that
would determine the outcome of a national election. Of course
it was permissible, and even essential out of respect for the will
of voters nationwide, to extend a more-or-less arbitrary
counting deadline to figure out, in accordance with the
statutorily expressed policy of the Florida legislature, which
candidate the people of Florida had really voted for. Yet by
channeling the political meaning of constitutional democracy
into a legal framework drawn from an era when some states
did not even allow popular votes in presidential elections, and
by then commandingly posing supposedly knotty and abstract
legal que stions that “smuggled in” these antiquated political
assumptions while appearing to be both rational and complex
from a legal point of view, the Court majority guessed it could
use its twenty years of accumulated conservative cultural
capital to “awe” the people into another, imaginary, political
24 Larry Lipman, Challenge Planned to Electoral College Congress to Make
Count Official Today , ATLANTA J. & CONST., Jan. 6, 2001, at A3.
25 Bush v. Palm Beach County Canvassing Bd., 531 U.S. at 76.
26 Bush v. Gore, 531 U.S. at 112.
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world. Because the Supreme Court’s authority is precisely to
declare what political world is also the legal world, its opinion
would be accepted as binding on the community as a whole.
Had Gore and his liberal lawyers been able to see and
trust the reality of his own national democratic base—by
speaking before the Court for them on the basis of the
universal moral ideals of the present day embodied in the right
of everyone to vote, and emphasizing in the name of leaders
like Martin Luther King Jr. precisely the overturning of states’
rights restrictions on that highest of democratic values that
had marked the Court’s jurisprudence since at least the Civil
War—he might have mobilized his really-existing People in a
way that would have overwhelmed the images of the “people”
relied on by Bush and the Court majority. Against him, Gore,
would have had the twenty years of loss of faith that would
have made it difficult for his popular majority to believe there
was still a hopeful public space to emerge into, and he would
have had the media, which until such a popular democratic
reality succeeded in emerging, would have projected the
inevitability of the Court’s image of Authority to speak for the
People (consider the media’s fascination with the awesome
architecture of the Supreme Court’s chamber, the fact that we
the people were going to be “allowed” for the first time to hear
their allegedly devastating questioning of the lawyers, and the
frantic scramble to get seats for the oral arguments in which
the Great Ones would appear in their full regalia, emerging
from their secret and sanctified private chambers where their
supposedly majestic conversations about the nature of our
constitutional democracy occur, conversations which the
average persons actually constituting that democracy could
certainly not understand). Overcoming the cultural power of
these images would have been difficult; so long as the postelection contest remained mainly a media event in which
people could only connect as a people by watching television,
these images provided powerful psychological support for the
twenty-years-in-the-making closure and even erasure of the
popular -democratic space that the Gore majority would have to
reclaim. But had he and Lawrence Tribe and David Boies stood
up boldly in the name of Martin Luther King Jr. on behalf of
the right to vote, I think the Gore forces would have succeeded
2002]
BUSH v. GORE
1167
in allowing the present reality of the people to defeat the longdead version of the people on which the Bush forces and the
Court’s conservative majority depended.
But instead of standing up for voting rights, Gore and
his lawyers meekly pleaded for states’ rights,27 the traditional
Republican metaphor that has been used for centuries to deny
working people, women, and African Americans the right to
vote. Of course, in their public statements outside the legal
sphere, Gore and his spokespeople did invoke the right to vote
as the basis for their call for a full and fair Florida vote count.28
But by severing this political claim from their legal claim, they
decisively undermined their ability to claim that the right to
vote was not just their view of the right principle to be
followed, but was also the universally binding moral ideal that
the Court was obligated to recognize as binding upon a
national community founded upon the will of the people.
So enveloped were Gore and his lawyers in their own
belief in the power of the conservative worldview, so weakened
was their conviction that there really was a People out here to
support their own political viewpoint, that they allowed
themselves to think that they had to argue from a position of
weakness: to cling to the hope that by dutifully framing their
legal argument in the antiquated version of the People that the
Court majority had for so long successfully been constructing,
they might have a chance of pleading with either Kennedy or
O’Connor to vote with them and thus eke out a five-to-four
victory on states’ rights grounds. By doing so, they effectively
limited the meaning of the legal debate to morally trivial,
technical legal questions affecting only Floridians, and
dissolved the emerging unity of their own national democratic
base by depriving us of our ability to claim constitutional
legitimacy—in the name of our own national democratic
majority—to demand that the Florida vote count proceed.29
Once Gore and his lawyers deferred in this way to the
conservative worldview and its version of who the People were,
we were lost. Ironically, by the time the Court finally ended the
27 Brief
for Respondent, supra note 9, at 50.
Vice President Al Gore, News Conference on Florida Election Lawsuit (Nov.
28, 2000), transcript available at http://www.pbs.org/newshour/bb/election/julydec00/fl_11-28.html.
29 See Bush v. Gore, 531 U.S at 98.
28
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election in its second decision on December 12, 2000, 30 the
Court itself had to bow to the national popular pressure that
had built up on its own on behalf of the pre-eminence of the
right to vote over the six-week period of nationwide political
debate and shifted its rationale from their initial strict reading
of Article II, Section 1, to a rationale based on equal protection
theory.31 Undoubtedly, the Court majority knew that the two
Court decisions read together were incoherent and
unsupportable. But they also knew that there was no longer
any possibility of a unified public majority empowered by a
publicly articulated sense of constitutional entitlement that
could do anything about it.
Even if Gore could not have changed the outcome of the
Court decisions and of the election itself by uniting his political
and legal claim under the transcendent banner of voting rights,
he would, by doing so, have posed a powerful challenge with
significant popular support to the long conservative assault on
the very existence of a socially-connected, national community
demanding legal recognition in the name of the highest of
democratic values. Instead of the political demobilization and
universal isolation that envelops and separates us from each
other today, we and they would know that we exist, that we
claim to be legitimately “constituted,” and that by quite a large
margin we had and have the votes.
30
31
Id.
Id. at 103-10.
WHEN SELF-GOVERNANCE IS A GAME ∗
Steven L. Winter †
No. 6: “It looks like a unanimous majority. . . .”
No. 2: “Exactly. That’s what’s worrying me. Very bad for morale.
Some of these good people don’t seem to appreciate the value of free
elections. They think it’s a game. . . .” 1
I.
SORE LOSERMAN
I expect that everyone has an iconic memory, image, or
picture from the extraordinary five -week period following the
2000 presidential election. The image that stands out for me is
that of the “Sore-Loserman” placard which started popping up
above crowds of Republican demonstrators in Florida toward
the end of the second week of the post-election contest.2 I like a
good pun, and the sign struck me as clever. Not only did it
mimic in color and script the design of the Gore-Lieberman
banners of the campaign, but the pun made vivid what had
previously been only implicit in the rhetoric of Bush campaign
officials.3 These signs—and, later, T-shirts—showed up with
increasing frequency over the next two weeks. One often heard
much the same sentiment in the everyday debates that characterized the period. One email from a colleague analogized the
∗
©2002 Steven L. Winter. All Rights Reserved.
† Professor of Law, Brooklyn Law School. This work was supported by a summer research grant from the Brooklyn Law School.
1 “Free for All,” The Prisoner (Episode Four, originally aired October
29, 1967)
2 See David Barstow, Voting Battle Threatens Florida’s Uneasy Truce Between
Political Parties, N.Y. TIMES , Nov. 20, 2000, at A15.
3 Frank Bruni & Jim Yardley, Bush Aides, Casting Gore Camp as Sore Losers,
Plot Next Steps, N.Y. TIMES , Nov. 10, 2000, at A28 (“Mr. Bush’s advisers . . . came to a
news conference here armed with voter registration statistics, visual aids and pointed
implications that Vice President Al Gore and his allies were acting like sore losers.”).
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Democrats’ post-election challenge to the Mets trying to reopen
the World Series because of a bad call by an umpire or on the
ground that the lights were too dim at one of the night games.
The analogy struck me as terribly inapt. Surely, I replied, there is a difference between a sports contest—even one
so important as the World Series—and the solemn exercise of
the franchise in a presidential election. True, the World Series
is not without consequence: The emotional stakes for the fans
are high and the financial stakes for the players and their
teams are both real and substantial. But it is still a game,
and—while its rewards ought to be dispensed fairly according
to the rules—there is no substantive moral, ethical, or political
value to the rules in-and-of themselves. With or without the
ground -rule double, the designated hitter, or the infield fly
rule,4 baseball would still be a fair contest. Without the ground
rules provided by the First Amendment, in contrast, no election
could be deemed fair. Elections, it should have gone without
saying, are different because they do have a moral point: They
are about democracy and self-rule.5 We hold elections to register the will of the governed (as best we can) in choosing (as best
we can) how we shall be governed and by whom. The content of
the rules matter—that is, they have an ethical dimension—
precisely because they may conduce to results that reflect either more or less well the will of the people and, therefore, render the resulting government more or less legitimate.
We can highlight the difference between games and
elections by considering some salient differences in their rules.
Both games and elections have rules that regulate who is eligible to participate and how errors are to be ascertained and corrected. But we would neither expect nor tolerate the same sort
of rules in both contexts. Because competitive games are
played to win, we characteristically expect—and always tolerate—meritocratic selection procedures. Professional sports
4 See Aside, The Common Law Origins of the Infield Fly Rule, 123 U. PA. L.
REV . 1474 (1975).
5 When the manual recount in one Florida county found 320 ballots
that hadn’t been processed by the machines at all, yielding a net gain for Bush of fiftytwo votes, one Democrat observed: “This is a good example of why you ought to have a
hand count. . . . This is not a game of up and down at any moment. This is a matter of a
very, very important franchise.” Somini Sengupta, Volusia County Workers Race the
Clock to Hand-Count Votes, N.Y. TIMES, Nov. 13, 2000, at A9.
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WHEN SELF-GOVERNANCE IS A GAME
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teams pay top dollar to get the most able players; if there is a
draft, they are expected to select the best available players in
the pool. Even in choosing up sides on the playground, it is
common (though certainly not mandatory) for the respective
captains to choose players on the basis of ability rather than
friendship. Meritocratic participation rules for elections, in
contrast, are today considered objectionable. Once common restrictions on the franchise such as poll taxes, literacy tests, and
property requirements have been repudiated on largely egalitarian grounds.6 So, too, meritocratic qualifications for candidates—that is, qualifications other than the standard citize nship, age, and residency requirements—would be invalid under
the Equal Protection Clause or First Amendment.7 Conversely,
we tolerate much more arbitrary and unreliable errorcorrection mechanisms in games than in elections. In baseball,
for example, the umpire’s call will stand even when the instant
replay has conclusively shown it to be wrong. But, every state
provides for some form of recount in a close election; thirty-five
states require the courts to give effect to the intent of the voter
if it is at all discernable from the ballot.8
One would have thought all this perfectly obvious but
for the course of the 2000 presidential contest and the muted
reaction to its resolution. The rhetoric of the period reveals
that, for many Americans, it was the game metaphor—and not
the substantive values of democracy and self-governance—that
structured how they perceived, understood, and evaluated the
election process. The game metaphor, in other words, did not
just characterize how they talked about the post-election process, it animated their normative judgments. And, as we shall
6 See Kramer v. Union Sch. Dist., 395 U.S. 621 (1969); Harper v. Virginia Bd.
of Elections, 383 U.S. 663 (1966); Katzenbach v. Morgan, 384 U.S. 641 (1966). As Dean
Kronman explains, classical republicanism, assumed that
a person’s capacity for self - rule depends on fixed attributes like sex
and intelligence in such an obvious, regular, and important way that
these may themselves be used as criteria for determining who shall be
allowed to participate in the political life of their community. Like
nearly everyone else today, the new republicans reject this assumption
and the inegalitarian implications that flow from it.
ANTHONY T. K RONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION
37 (1993).
7 See Lubin v. Panish, 415 U.S. 709 (1974) (equal protection); Powell v.
McCormack, 395 U.S. 486 (1969); Williams v. Rhodes, 393 U.S. 23, 41 (1968) (Harlan,
J., concurring) (First Amendment).
8 Bush v. Gore, 531 U.S. 98, 124 n.2 (2000) (Stevens, J., dissenting).
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see, this was true not just for ordinary Americans, but also for
respected political commentators, distinguished legal scholars,
and several members of the Supreme Court majority in Bush v.
Gore.9
To be clear, I am not making a monistic causal claim,
but an ontological one—i.e., that the game metaphor shaped,
structured, and animated how many Americans understood
and evaluated the post-election process.10 My purpose is not so
much to explain the outcome of the post-election contest as it is
to expose some fundamental and disturbing fault lines that run
through the very heart of contemporary American democracy.
There were, of course, many reasons for the failure of
the Democrats’ competing rhetoric insisting on a “full, fair and
accurate count.” For one thing, the Gore campaign was unconscionably late in coming to it—focusing in the early days on the
butterfly ballot in Palm Beach County and the unwitting Buchanan votes that it produced.11 Gore, moreover, waited much
too long before personally making the case for a full and fair
count to the American people. Most devastating of all was the
fact that the Democrats’ insistence that every vote count was
belied by their decision to seek recounts only in counties with
Democratic majorities.12 So, too, there were other reasons for
9
Id. at 111 (Rehnquist, C.J., concurring).
Here, we see the problem with the conventional academic practice of
distinction drawing: Obviously, the claim that the game metaphor predisposed the
relevant actors toward a particular outcome (the ontological claim) is a claim that the
game metaphor was a contributing cause of the outcome of the post-election contest.
Thus, the distinction between an ontological claim and a causal one is not an all-ornothing distinction on the model of P and not-P, but merely a matter of degree.
11 The 2000 Election: Statements by Daley and Christopher on Their Findings
on the Florida Vote, N.Y. TIMES , Nov. 9, 2000, at A29. In fact, a subsequent study of the
Florida ballots commissioned by a consortium of news media found that the butterfly
ballot did cost Gore the election. Five thousand, three hundred and ten Palm Beach
County voters voted for both Gore and Buchanan and 2600 voted for Bush and a se cond presidential candidate, which would have yielded a net gain for Gore of 2710
votes—far in excess of the 537 vote margin by which Bush carried Florida. Ford Fassenden & John M. Broder, Study of Disputed Florida Ballots Finds Justices Did Not
Cast Deciding Vote, N.Y. TIMES , Nov. 12, 2001, at A1, A16.
12 On November 14th, a New York Times/CBS News poll found that “50 percent of the respondents said they thought the Gore campaign was challenging the
result in Florida because they disliked the outcome; only 37 percent thought it was
doing so because it thought the election may have been conducted unfairly in some
jurisdictions in the state.” R.W. Apple, Motivation: Behind a “Noble Toga” Find Naked
Ambitions, N.Y. TIMES , Nov. 14, 2000, at A23.
Ironically, a subsequent study of the Florida ballots commissioned by a consortium of news media found that a recount of the four majority-Democratic counties
10
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WHEN SELF-GOVERNANCE IS A GAME
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the quiescence of the American public and its acquiescence in
the Supreme Court’s resolution of the contest. For one thing,
the Gore team had no endgame: A prolonged contest would
most probably have thrown the election to the Republicancontrolled House where Bush would almost certainly have won.
In addition, the relentlessly centrist campaigns run by both
candidates no doubt left many Americans with the dispiriting—though (sadly) mistaken—impression that it didn’t matter
who was selected given that there seemed little difference between the candidates on most issues.
But, however feckless the Democrats and however uninspiring the campaign, the electorate still had every reason to
insist that the presidency is not the World Series and that the
post-election contest ought to be resolved in a way that accords
with core democratic values. After all, we hold elections to ascertain the will of the voters not the sportsmanship of the candidates or the preferences of our Supreme Court Justices.13
So, the question remains: Why, despite what would
seem to be its obvious normative inappropriateness, was the
game metaphor so powerful? I take up this question in the sections that follow. I first examine the rhetoric of the postelection period. I show how the game metaphor works and explore its operation in the rhetoric and decisions of the postelection contest. I then take up the question of why the game
metaphor should be so compelling in this context. This discuswould not have altered the outcome of the election, but that a statewide recount would
have regardless of what standard was used to evaluate the ballots. Fassenden &
Broder, supra note 11, at A16.
13 In a similar vein, consider the post hoc rationalization—commonly heard
since the September 11th attacks—captured by the following exchange:
Rob Schneider: I hate to tell you the truth. The truth is the military is
much happier having . . .
Carol Whitney: Oh, absolutely!
Schneider : . . . President Bush.
Whitney: . . . and Rumsfeld.
Schneider : Believe me! Believe me! . . .
Bill Maher : Okay. Yeah.
Jeffery Toobin: The military are patriotic Americans who support their
country, I think regardless of who the political leadership is.
Whitney: But, they prefer . . .
Toobin: Well that’s right, “they prefer.” But, you know what? It’s not
up to the military. It’s up to the voters. And the voters decide who the
President is.
Politically Incorrect (ABC television broadcast, Nov. 29, 2001).
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sion will yield some rather distressing conclusions about the
state of our contemporary “democratic” society and a radical
recommendation about what we might do about it.
II.
THE GAME IS AFOOT
The game metaphor emerged in public discourse the
morning after the election. Commenting on the discrepancy
between the popular vote and the projected winner of the Electoral College, a Republican supporter admonished: “If you don’t
want to follow the rules, don’t play the game.”14 In a letter to
the Editor of the New York Times written the following day,
another Republican supporter argued that: “Both candidates
knew the rules ahead of time. . . . They both knew they needed
electoral votes; that’s how they played the game. You can’t
change the rules during the game.”15 That same day, the Times
reported that the Gore team hoped that the Vice President’s
return to Washington from his campaign headquarters in
Nashville would allow him “to maintain some distance from the
escalating political battle and any public perception that he is
not prepared to abide by the rules of the game.”16 The following
14 Jodi Wilgoren, Dead Center: Eternal Spotlight Yields to Infernal Wait, N.Y.
TIMES, Nov. 9, 2000, at B4.
15 James W. Sampair, Jr., In Palm Beach County, Crucible of an Election, N.Y.
TIMES, Nov. 10, 2000, at A32. Judge Posner makes the same point in his recent book on
the election.
Shortly before the election it was believed that Bush might gain a
popular vote majority and that Gore a majority of the electoral votes.
If that was Bush’s perception, he must have redoubled his ef forts to
win electoral votes, and the popular vote be damned. To call the winner of the popular vote for President the “real” winner, to accord constitutional status to the winner of the popular vote, and to question
the legitimacy of the candidate who won the electoral vote and so became President are further examples of changing the rules of the game
after the game has been played.
RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE
CONSTITUTION, AND THE COURTS 225 (2000).
16 Katharine Q. Seelye, The Vice President: Gore Withdraws From the Field as
Aides Prepare for Battle, N.Y. TIMES, Nov. 10, 2000, at A29. The article also reports
Gore aides as observing that the fact that their candidate had won the popular vote
allowed him to “demand an accurate count without appearing to be, in the words of one
adviser, ‘a cranky spoilsport.’ ” Id.
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WHEN SELF-GOVERNANCE IS A GAME
1177
Sunday, the Times summed up the national mood this way:
Americans do not like ties. Virtually none of the sports that dominate national life allow them. If it takes overtime, a penalty kick, a
sudden death playoff or extra innings, everyone expects a winner
and everyone knows that the Mets and the Yankees cannot both be
World Series champs.
So it is perhaps no surprise that the political system seems
challenged by an election that is as close as it ever comes to a tie,
and whose outcome may take time to determine and never be resolved with scientific certainty. 17
Clearly, the game metaphor was in play (pun intended) even
before the subje ct of hand recounts, hanging chads, and how
best to discern the intent of the voters had come to dominate
the public discourse.
The Republicans filed suit November 11th, seeking to
enjoin manual recounts. The suit, filed just as hand counts
were beginning in Palm Beach County, alleged (among other
things) that the standards for ascertaining the intent of the
voters would be applied differently in different counties in violation of the Equal Protection Clause.18 Initially, the Palm
Beach County board of elections counted only those ballots containing chads with at least two detached corners.19 After rulings in several of the Democrats’ state court challenges, the
Palm Beach and Broward boards decided to count as well
chads that were merely indented and not perforated (so-called
dimpled or pregnant chads).20 It was at this point that the
game metaphor became the linchpin of the Republicans’ rhetorical strategy. For the next several days, Republicans repeatedly accused the Democrats of changing the rules in the middle
of the game in order to manufacture additional votes for
17 Todd S. Purdum, The System: National Psyche Hates a Game No One Wins,
N.Y. TIMES , Nov. 12, 2000, §1, p 1.
18 David Firestone & Michael Cooper, Bush Sues to Halt Hand Recount in
Florida: Palm Beach Tally Starts as G.O.P. Cites Risk of Flaws in Process, N.Y. TIMES ,
Nov. 12, 2000, at A1.
19 Rick Bragg, Palm Beach County: At Long Last, Army of Volunteers Gets Its
Orders to Begin Recount, N.Y. TIMES, Nov. 17, 2000, at A29.
20 Kevin Sack, Palm Beach County; Key Recount Waits Again For Approval
From Court, N.Y. TIMES, Nov. 16, 2000, at A31; Dana Canedy & David Gonzalez, Broward County: Judge Leaves Chads, Dimpled or Otherwise, to Discretion of Recount
Team, N.Y. TIMES, Nov. 18, 2000, at A15; Don Van Natta, Jr., Recounts Drag On: Court
Battle Lines Are Drawn, N.Y. TIMES , Nov. 20, 2000, at A1.
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Gore.21
Not surprisingly, the truth was more complicated. The
decision of the Broward board was by unanimous vote of its
two Democratic and one Republican members.22 The change in
the Palm Beach policy was pursuant to court order.23 Nevertheless, the charge stuck. When the Florida Supreme Court extended the deadline for hand recounts, the sense of a partisan
breach of the ground rules was exacerbated. Republican
spokesman James Baker declared: “It is simply not fair, ladies
and gentlemen, to change the rules, either in the middle of the
game or after the game has been played.”24 The Indianapolis
Star complained: “In poker, if a player declares deuces wild
after the cards are dealt and bets are placed, it’s no longer a
fair game. It’s a rip-off.”25
This sentiment was so strongly and widely held that, at
oral argument before the Supreme Court, Laurence Tribe chose
to address it first:
I think I would want to note at the outset that the alleged dueprocess violation, which keeps popping up and then
disappearing, . . . is really not before the Court, and for understandable reasons, because although it is part of the popular culture to talk about
how unfair it is to change the rules of the game, I think that misses
the point when the game is over . . . in a kind of photo-finish. . . . A
21 Canedy & Gonzalez, supra note 20, at A15; Van Natta, supra note 20, at A1;
Robin Toner, The Conservatives: From the Anti-Gore Right, A Battle Cry of ‘Stop,
Thief!’, N.Y. TIMES , Nov. 26, 2000, A37 (“The conservative message these days is simple and laced with the anger of eight long years out of the White House: the Democrats
are trying to steal this election, they say. They’re trying to hold on, to change the rules
of the game, to thwart the will of the people.”).
22 Van Natta, supra note 20, at A1 (“The board, made up of two Democrats
and a Republican, voted unanimously to consider dimpled or one-corner chads, the tiny
pieces of paper that are normally dislodged from punch cards when a voter makes a
choice. . . . Previously, the board had counted only chads with two or more corners
punched through as votes.”).
23 Sack, supra note 20, at A31. See also Ford Fessenden & Christopher Drew,
The Voting Cards: Chads Have Their Place in Annals of the Law, N.Y. TIMES, Nov. 16,
2000, at A32 (reporting similar rulings by courts in Alaska, Illinois, Massachusetts,
and South Dakota).
24 Baker’s Response to Ruling, N.Y. TIMES, Nov. 22, 2000, at A24. See also
Frank Bruni, The Reaction: Bush Camp, Outraged, Vows to Seek Recourse to Ruling,
N.Y. TIMES , Nov. 22, 2000, at A1.
25 Felicity Barringer, The Reaction: Editorials Blend Bitterness and Calls for
Common Sense, N.Y. TIMES, Nov. 24, 2000, at A42.
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manual recount, sometimes taking more time, . . . would be rather
like looking more closely at the film of a photo finish.
It’s nothing extraordinary. It’s not like suddenly moving
Heartbreak Hill or adding a mile or subtracting a mile from a marathon. 26
This argument is revealing for at least three reasons. First, it
acknowledges how much the game metaphor dominated public
opinion. So much so, in fact, that though Tribe dismisses the
legal relevance of the sentiment he nevertheless feels constrained to respond to it. Second, though Tribe shrewdly tries
to turn the metaphor to his advantage, he does so only at the
expense of confirming it—a form of what, in the book I refer to
as “antinomal capture.”27 For, in using the “photo finish” and
“marathon” tropes, Tribe is invoking the metaphor in its purest, most conventional, most prototypical form: It is, after all, a
presidential race in which competing candidates run for office.
Tribe extends the conventional metaphor by modeling other
aspects from the source domain of races to elaborate conceptions not part of the metaphor’s standard stock of entailments:
This race, he says, is the exceptional case; it is like a photo finish; if the race is too close to call, then some special mechanism—obviously requiring additional time —will be needed to
decide it.
Third, and this follows closely from the previous point,
Tribe’s argument underscores how deeply entrenched the game
metaphor really is. Not only does Tribe employ it in its most
prototypical form, but he pays a particularly steep price for
doing so. For, though Tribe is conscious and careful about how
he extends the metaphor, he cannot control its implications
once invoked. Onc e invoked, the metaphor inevitably and unconsciously prompts all of its more prototypical entailments.
Both the image of a photo finish and the trope of adding (or
subtracting) a mile from the course of a marathon imply a race
with a definite and determinate end. And that, precisely, is
what the recount and ensuing litigation was obviously not providing. From all outward appearances—the lawyers, the
26
Contesting the Vote: A Transcript of Arguments in the Supreme Court over
the Florida Recount, N.Y. TIMES , Dec. 2, 2000, at A12.
27 STEVEN L. WINTER, A CLEARING IN THE FOREST: LAW , LIFE , AND MIND 11
(2001) (“[M]ore often than not, the price of opposition is that one is defined precisely by
what one most vehemently rejects.”).
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spokespersons and spin doctors, the handlers and political ops,
the press coverage and public attention—the race was still very
much on.28
We are now in a position to make our first pass at the
question raised at the outset: Why did the game rhetoric seem
to have greater resonance than arguments premised directly on
substantive democratic values? One reason is that the game
metaphor is constitutive of our very concept of elections. This is
manifest in the conventional linguistic construction of an election as a race in which the candidates run for office. By the
same token, we speak of dark horse and stalking horse candidates. And a political race is constantly handicapped by public
opinion polls so we can determine at any moment who is
ahead. The game metaphor can also be seen in such iconographic representations as the 1876 political cartoon by Thomas Nast entitled “A National Game that Is Played Out.” (Figure 1.) We can test this conclusion further by considering the
overall shape of the game metaphor and then seeing how its
entailments are reflected in American political culture, generally, and in the post-election discourse, in particular.
The classic, still influential study of play is Johan Huizinga’s Homo Ludens .29 Huizinga describes play—more specifically, agonistic games (i.e., games involving a contest against
an opponent)—as characterized by five, overlapping elements.
First, play is voluntary; as Roger Caillois observes, compelled
play loses its spontaneous devotion and becomes
28 Indeed, while the case wound its way through the Florida courts, David
Boies said: “You don’t call the end of the game after the first inning or the second inning”—leading the Times to conclude “that the 2000 campaign is now in a litigation
phase that may not end soon.” William Glabers, On the Law: A Method to the Logic of
the Court Rulings, N.Y. TIMES, Nov. 18, 2000, at A13.
29 JOHAN HUIZINGA, HOMO LUDENS : A STUDY OF THE PLAY ELEMENT IN
CULTURE (1950) (original Swiss publication in 1944). Huizinga’s study, with its emphasis on agonistic forms of play, has been criticized as parochially Western and masculine. See BRIAN SUTTON-SMITH, THE AMBIGUITY OF PLAY 79-80 (1997). See also discussion infra text accompanying nn. 89-91.
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WHEN SELF-GOVERNANCE IS A GAME
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Figure 1: Thomas Nast, A National Game that is Played Out
(1876).
drudgery.30 “Only when play is a recognized cultural function,”
Huizinga adds, “is it bound up with notions of obligation and
duty.”31
Second, play defines its own, specialized domain: “It is
rather a stepping out of ‘real’ life into a temporary sphere with
30
31
ROGER CAILLOIS , MAN, PLAY, AND G AMES 6 (Meyer Barash trans., 1961).
HUIZINGA, supra note 29, at 8.
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a disposition all its own. . . . It interpolates itself as a temporary activity satisfying in itself and ending there.”32 Third, and
relatedly, play is distinct in location and duration: “It is ‘played
out’ within certain limits of time and place. It contains its own
course and meaning.”33 Play thus constituted immediately assumes a fixed, repeatable form—it becomes a game —typically
with an internal structure that is itself characterized by “repetition and alternation.”34 This formal quality of games, Arthur
Leff explains, also has substantive implications: “The players
in any game are treated for purposes of the game as formally
identical. They have each the same access to the field and the
mechanisms of play, and the same formal entitlements (if not
simultaneously, then at least in equal succession).”35
Fourth, the special temporal and spatial domain of the
game is characterized by “an absolute and peculiar order.”36 In
Huizinga’s words, play “creates order, is order. Into an imperfect world and into the confusion of life it brings a temporary, a
limited perfection. The least deviation from it ‘spoils the game’.
. . .” 37 The virtual identity between a game and the formal order of its rules is what accounts for two of the most distinctive,
otherwise paradoxical qualities of games: that the rules of the
game are essentially arbitrary and, at the same time, utterly
authoritative.38 Within the fixed space or given time of the
game, the confusion and chaos of the real world is replaced “by
precise, arbitrary, unexceptionable rules that must be accepted
as such.”39 The spoilsport who withdraws from the game or denounces the rules as absurd is, therefore, worse than the cheat.
The cheat may violate the rules, but at least pretends publicly
to respect them. The spoilsport, in contrast, “shatters the playworld” by revealing its “relativity and fragility.”40 Caillois
elaborates: “The game is ruined by the nihilist” because “his
arguments are irrefutable. The game has no other but an in32
Id. at 8-9.
Id. at 9.
34 Id. at 9-10.
35 Arthur A. Leff, Law and, 87 Y ALE L.J. 989, 999-1000 (1978).
36 HUIZINGA, supra note 29, at 10.
37 Id.
38 “All play has its rules. They determine what ‘holds’ in the temporary world
circumscribed by play. The rules of a game are absolutely binding and allow no doubt.”
Id. at 11.
39 CAILLOIS , supra note 30, at 7 (emphasis added).
40 HUIZINGA, supra note 29, at 10.
33
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WHEN SELF-GOVERNANCE IS A GAME
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trinsic meaning. That is why its rules are imperative and absolute, beyond discussion. There is no reason for their being as
they are, rather than otherwise.”41
Fifth, and finally, play has a necessary element of tension or doubt. Huizinga explains:
Tension means uncertainty, chanciness; a striving to decide the issue and so end it. The player wants something to “go”, to “come off”;
he wants to “succeed” by his own exertions. . . . It is this element of
tension and solution that governs all solitary games of skill and application such as puzzles. . . . Though play as such is outside the
range of good and bad, the element of tension imparts to it a certain
ethical value in so far as it means a testing of the player’s prowess:
his courage, tenacity, resources. . . . 42
For this tension to persist, Caillois says: “Doubt must
remain until the end, and hinges upon the denouement.”43 Leff
explains: “The most significant thing about games, therefore, is
that they have a resolution. . . . A game is an activity in terms
of which you can know with some precision what you did and
how you came out.”44
Surely you recognize in this description all the major
features of American elections, in general, and of last year’s
post-election political rhetoric, in particular.45 In our country,
voting is certainly bound up with notions of civic duty. But,
unlike many Western European democracies, we staunchly
resist the idea that voting should be made compulsory. Unlike
parliamentary systems, our elections are at repeated, fixed intervals. We expect election decisions to be made on a particular
day and in an all-or-nothing fashion: For us, there is no waiting
period during which the winning party puts together a coalition to form a government. American elections are winnertake-all affairs, no matter how close the vote; few, indeed, are
the electoral schemes that smack of any form of proportional
representation.46 And presidential races, at least, are about
41
CAILLOIS , supra note 30, at 7.
HUIZINGA, supra note 29, at 10-11.
43 CAILLOIS , supra note 30, at 7.
44 Leff, supra note 35, at 1000.
45 Lest you think that I have made any of this up or that the definition is in
any way tailored to the election context, let me remind you that Huizinga, who was
German-Swiss, wrote in 1944; that Caillois, who was French, wrote in 1960; and that
Leff was writing about adjudication.
46 The principal exceptions are the two states (Maine and Nebraska) that, by
42
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prowess and tenacity: It is a staple of American politics that a
presidential candidate must have the proverbial “fire in the
belly.”
More interesting for our purposes are the decisions, arguments, and exhortation of the post-election period in which
the impress of this conventional conception of games is clearly
reflected. Some cases, such as the “Sore-Loserman” reference
and the “can’t change the rules in the middle of the game” refrain, are sufficiently obvious that they do not require discussion (though I shall have more to say on the latter in a moment). Others, though more marginal to the public discourse,
are nonetheless striking. One such example is Thomas Friedman’s Op-Ed column the morning of the final Supreme Court
decision in Bush v. Gore.47 Echoing Caillois’s observation that
“doubt must remain until the end,” Freedman argued that the
“fairest way to handle this too-close-to-call vote in Florida
would have been the one solution by which, if you adopted it,
you would not know who would win.”48 He encouraged the Supreme Court to adopt “a solution—a statewide hand recount by
a uniform standard—that would leave both Mr. Gore and Mr.
Bush with a sick feeling that once the recount has started they
don’t know who will win.”49 Only when the Court “has
re-established that sick feeling in both men” will it “have ensured a legitimate outcome and restored
the authority of this election to where it belongs—with ‘We the
people.’”50
Friedman’s argument is arresting in its insistence that
the adequacy of a remedy is to be measured by the sick feeling
it engenders in the candidates. At first blush, he seems quite
sensibly to be saying that a remedy which leaves the candidates in doubt is most likely to be a fair one.51 If neither side
statute, proportion their Electoral College votes. See Robert W. Bennett, Popular Election of the President Without a Constitutional Amendment, 4 G REEN BAG 2D 241, 241
(2001).
47 Thomas L. Friedman, Foreign Affairs: A Tally of Two Countries, N.Y.
TIMES, Dec. 12, 2000, at A33.
48 Id.
49 Id.
50 Id.
51 Friedman’s argument points out the bivalent nature of the game metaphor,
which has good entailments as well as bad. Because the focus of my argument has been
on the ways in which the game metaphor skewed the debate during the post-election
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can predict a win, then one can reasonably infer that the chosen remedy advantages neither candidate. But Friedman is
also saying something more and different. Earlier in the piece,
he discusses the substantive adequacy of the standard that
should be employed on any recount: “ ‘Any dimple will do’ is no
way to recount votes, and no recount of votes in an impossibly
close election is no way to win.” His proposal is “the sunshine
rule—that only punch ballots that are perforated so that you
can see light through them can be counted.”52 But, at the close
of the piece, he does not equate the democratic legitimacy of
the election with the fair and meticulous counting procedures
that he has just proposed. Rather, it is the restoration of tension and doubt—“when the court has re-established that sick
feeling in both men”53—that ensures a democratic and legitimate outcome. This is not a proposal to check more carefully
the outcome of a race already completed as in a photo finish,
but rather a bid to reinstate the tension and doubt of the competition itself. And, not coincidentally, it is a proposal that
would further test the mettle of the candidates—that is, their
courage, tenacity, sportsmanship, etc.
More interesting still are two sets of legal arguments
that, upon examination, depend upon the entailments of the
game metaphor. The per curium opinion in Bush v. Gore held
that, because the Florida Supreme Court had indicated “that
the Florida Legislature intended to obtain the safe-harbor
benefits of 3 U.S.C. § 5,” no remand to the Florida Supreme
Court for a further remedy was possible.54 Chief Justice
Rehnquist’s concurring opinion went further, arguing that Arcontest—supplanting the fundamental democratic values that should have informed
the outcome—some might conclude that the game metaphor (or metaphor, generally) is
inherently distorting. But that conclusion follows only upon discredited objectivist
assumptions about language as reference to a mind-independent reality that the metaphor could, then, “misrepresent.” Once we understand metaphor as constitutive of our
reality, the only relevant question is the pragmatic one whether the particular metaphor enables useful or harmful perceptions, insights, and actions. WINTER, supra note
27, at 65-67. Friedman’s argument—that a recount procedure that would engender a
“sick feeling” in the candidates would be a fair one—illustrates the positive value of the
game metaphor in structuring notions of “fair play.” See CAILLOIS, supra note 30, at 47
(“There is no better example of the civilizing role of play than the inhibitions it usually
places on natural avidity.”); HUIZINGA, supra note 29, at 207 (“There can be no doubt
that it is just this play-element that keeps parliamentary life healthy. . . .”).
52 Friedman, supra note 47.
53 Id.
54 Bush v. Gore, 531 U.S. at 111.
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ticle II constrained state judicial interpretation of state legislative action with respect to presidential elections.55 According to
the concurring opinion, the contest period provided by state
statute “necessarily terminates on the date set by 3 U.S.C. § 5
for concluding the State’s ‘final determination’ of election controversies.”56 Entirely absent from the opinion is any explanation of why the safe harbor provision provides a necessary terminus for the recount. Instead, we are offered the assertion
that: “Surely when the Florida Legislature empowered the
courts of the State to grant ‘appropriate’ relief, it must have
meant relief that would have become final by the cut-off date of
3 U.S.C. § 5.”57 Exactly why “it must have meant” a final cut-off
of December 12th is unclear. Neither the state legislature nor
the Florida Supreme Court in its prior interpretation of the
statute provided any indication of how one should handle the
trade-off between finality (as ensured by the safe harbor provision) and accuracy (as proposed by the statewide recount).
It is easy enough to explain this lapse cynically as nothing more than a result-oriented argument by the Court’s three
most conservative members. Personally, I am sympathetic to
that explanation though, for reasons I will explain in a moment, I cannot accept it as complete. Alternatively, one could
argue, as Judge Posner does, that the Court was right to let
considerations of finality dictate the result so as to avoid the
uncertainties of possibly throwing the election to the House.58
(I am, as yo u might imagine, less sympathetic to this one.) In
any event, there is nothing surprising in the Court raising concerns about finality five weeks after election day.
But, whether one is cynical or approving, there are two
problems with these result-oriented explanations. The first is
that the rhetoric of finality had been a staple of Republican
rhetoric from day one. The morning after the election Bush insisted that “the final vote count there shows that Secretary
Cheney and I have carried the State of Florida.”59 The next
day, his campaign chairman, Donald Evans, said that: “Our
55
Id. at 112-16 (Rehnquist, J., concurring).
Id. at 117.
57 Id. at 121 (emphasis added).
58 POSNER, supra note 15, at 143-60.
59 The 2000 Election: Bush’s View of the Election, N.Y. TIMES , Nov. 9, 2000, at
56
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democratic process calls for a vote on Election Day. It does not
call for us to continue voting until someone likes the outcome.”60 That Saturday, after the initial recount had been completed and the Republicans had filed suit to enjoin the manual
recount, James Baker urged “the Gore campaign to accept the
finality of the election” even though, as he noted, the absentee
votes had yet to be counted.61 Both Baker and others made frequent references to Presidents Nixon and Ford who chose to
concede close elections in 1960 and 1976, respectively, rather
than polarize the country by prolonging the contest.62
The second problem is the one I raise in the book under
the rubric of “law as persuasion.”63 As the plurality in Planned
Parenthood v. Casey64 so painfully recognized, judicial decisions
must at the least be “sufficiently plausible to be accepted by
the Nation”65 on the terms claimed for them, as grounded in
law, and “not as compromises with social and political pressures having, as such, no bearing on the principled choices that
the Court is obliged to make.”66 Even if we were to accept the
cynical account, there would remain the questions of how the
Justices came to make the characterizations they did and why
others might find those interpretations plausible. In other
words, as I argue in the book, the need to make judicial decisions credible operates as a constraint on what those positions
can reasonably be. And this constraint is operative regardless
of the judge’s result-orientation or political motivation.
Here, both problems point inexorably to the finality entailment of the game metaphor. A game, Huizinga admonishes
us, “proceeds within its own proper boundaries of time and
space according to fixed rules and in an orderly manner.”67 In60 “We Are Confident”: Statements by Officials of the Bush Campaign, N.Y.
TIMES, Nov. 10, 2000, at A28.
61 Counting the Vote: Baker Calls for “No Further Recounts,” N.Y. TIMES , Nov.
12, 2000, A24; see also The 2000 Election: Statements by Daley and Christopher on
Their Findings on the Florida Vote, N.Y. TIMES , Nov. 10, 2000, at A29 (reprinting
statement by Daley accusing the Republicans of “put[ting] a demand for finality ahead
of the pursuit of fairness”).
62 See, e.g., Firestone & Cooper, supra note 18; Walter A. McDougall, The
Slippery Statistics of the Popular Vote, N.Y. TIMES, Nov. 16, 2000, at A35 (Op-Ed).
63 WINTER, supra note 27, at 152-56, 309-31.
64 505 U.S. 833 (1992).
65 Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833, 865-66
(1992) (Opinion of O’Connor, Kennedy, & Souter, JJ.).
66 Id.
67 HUIZINGA, supra note 29, at 13; see also CAILLOIS , supra note 30, at 9 (ex-
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deed, as Leff says: “The most significant thing about games,
therefore, is that they have a resolution.”68 Finality, then, is
more than a pragmatic necessity of presidential elections—
though that it surely is. Finality is an expectation of the electorate; a rule of the game. A race is run and must be won. “It
ain’t over ‘til it’s over,” as the saying goes; but once it’s over we
are supposed to know who the winner is. Like a game, an election is an activity in which, to paraphrase Leff, you are supposed to know with some precision and immediacy how your
guy did and how things came out.
There is another legal argument that implicitly trades
on the expectations engendered by the game metaphor. It is
the claim, variously made, that only a properly marked ballot
is a “legal vote” and, therefore, that overvotes and dimpled
chads should not properly have been counted. The Florida
statutes contain no definition of a legal vote. Rather, the Florida Supreme Court defined a legal vote in terms of the stat utory provision which says that no vote is to be declared invalid
if there is “a clear indication on the ballot that the voter has
made a definitive choice as determined by the canvassing
board.”69 The per curiam decision declined to revisit this decision, finding instead that the recount did “not satisfy the
minimum requirement for non-arbitrary treatment of
voters. . . .”70
The concurring Justices, however, argued that the Florida Supreme Court’s definition of a legal vo te “departed from
the legislative scheme” in violation of Article II.71 Voters, they
argued, are instructed to take care to punch the ballot “clearly
and cleanly” and to make sure that “there are no chips left
hanging on the back of the card.”72 (Having voted in Florida for
many years, I can confidently say that that is good advice—
though I cannot recall ever seeing such instructions at my local
plaining that games are “circumscribed within limits of space and time, defined and
fixed in advance”).
68 Leff, supra note 35, at 1000.
69 FLA. STAT. ANN. § 101.5614(5) (West Supp. 2001).
70 Bush v. Gore, 531 U.S. at 105 (“For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had
the authority under the legislative scheme . . . to define what a legal vote is and to
mandate a manual recount. . . .”).
71 Id. at 118-19 (Rehnquist, C.J., concurring).
72 Id. at 119.
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polling place in Coral Gables.) For the concurring Justices,
there was no legal reason for a recount because there had been
no rejection of legal votes. The machines merely did what they
were supposed to do, counting only such ballots as were
“marked in the manner that these voting instructions explicitly
and prominently specify.”73
Judge Posner makes a more sophisticated variant of
this argument when he contends that:
A voting error is not a natural kind, like a star or a penguin or a
blade of grass, which are things that exists independently of human
cognition. A voting error is a legal category. The belief that it is possible without reference to law to determine who won the popular
vote in Florida is the most stubborn fallacy embraced by the critics
of the U.S. Supreme Court’s intervention to resolve the deadlock. 74
He then argues that a proper understanding and application of
the law suggests that Bush probably won a majority of the
popular vote in Florida.75 He concludes that the Florida Supreme Court not only “flouted,” but “butchered the state’s
election statute” in (among other things) ordering the recount
and allowing the counting of improperly marked ballots.76
Both these arguments are well within the range of respectable legal argumentation—normal science, as it were. The
concurring opinion’s argument that only a properly marked
ballot is a “legal vote” is a straightforward legal formalism. A
valid will needs two witnesses; a check must be signed; a chad
must be completely punched out. Posner’s argument is closely
73
Id.
POSNER, supra note 15, at 73-74.
75 See, e.g., id. at 15-16 (“The Democrats’ belief that Gore would probably have
won the popular vote in Florida had more counties used a more user-friendly voting
technology is not groundless, but it does not follow that he was the “real”—that is, the
legal—winner.”).
76 Id. at 159.
The Florida statute is vague. . . . All the statute says on this score is
that if the court finds that enough “legal votes” were rejected to
“change or place in doubt the result of the election,” it can “provide
any relief appropria te under such circumstances.” “Appropriate” is not
defined. . . . But even a term as vague as “appropriate” does not give a
court carte blanche.
Id. at 138.
74
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related, but takes a philosophically and jurisprudentially more
sophisticated form. Since the 1920s, it has been a staple of argument by legal academics on the left that things we take as
“givens” are not natural kinds but the social construction of
particular legal rules. The argument was initiated by the legal
realists,77 and more recently taken up and extended by feminist and critical legal scholars.78 Posner adapts this point to
conservative rhetorical ends, though that hardly detracts from
its cogency or validity.
Still, the argument is too clever by half. The problem is
that the social construction gambit which Posner invokes is the
engine of a critique that deconstructs all formalisms—including
such formalisms as “property,” “freedom of contract,” “gender
roles,” and “legal vote.” Thus, the legal realist critique was that
there could be no coherent notion of freedom of contract when
the previous distribution of legal entitlements always already
affected the relative bargaining positions of the parties. So, too,
feminist critical scholars have argued that one cannot defend
traditional gender roles on the ground that people choose them
when “the state is responsible for the background rules that
affect people’s domestic” choices.79 Posner’s argument is too
clever by half because he is invoking the social construction
point to justify what is, at base, the same formalism indulged
in by the concurring Justices.
One can readily concede both that a vote is not a natural kind like a star or a penguin and that one cannot determine
who won the popular vote in Florida without reference to law.
But that still does not tell us whether we should read that law
formalistically or realistically to accomplish its underlying
purpose. The Florida Supreme Court plainly did the latter. In
holding that a “legal vote” is any ballot that provides “a clear
indication of the intent of the voter,”80 the Florida court merely
77
See Robert Hale, Law Making by Unofficial Minorities, 20 COLUM . L. REV .
451, 452-53 (1920); Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8
(1927).
78 See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV . L. REV . 1685, 1748 (1976); Frances E. Olsen, The Family and the
Market: A Study of Ideology and Legal Reform, 96 HARV . L. REV . 1497, 1508-13 (1983).
See generally DUNCAN K ENNEDY, A CRITIQUE OF ADJUDICATION {fin de siècle} 246-63
(1997).
79 Frances Olsen, The Myth of State Intervention in the Family, 18 U. MICH.
J.L. REF. 835, 837 (1985).
80 Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1229 (Fla.
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sought “to reach the result that reflects the will of the voters,
whatever that might be.”81 Posner charges that “[w]hen the
Florida supreme court drew upon the ‘people power’ clause of
the state constitution to construe the state’s election code, it
was imposing its own populist values. . . .”82 But that’s hyperbole. The Florida court was just applying the fundamental democratic value that government should be by the actual will of
the people as best we can determine it, rather than by the will
of only those people who —like me—are meticulous about
punching out their chads.
The heart of Posner’s statutory reading is that the “intent of the voter” provision neither applies nor modifies the
provision that provides for a recount only when there has been
an “error in the tabulation of the vote.”83 In this, too, he echoes
the position of the concurring Justices.84 But the argument is
either circular or just another formalism because it too presupposes that one knows what a vote is. Since a vote is not a natural kind like a star or a penguin, we cannot determine whether
there is an error in the tabulation of the vote unless and until
we define the term “vote.” Once again, one can define a vote
either formalistically or realistically in light of its underlying
democratic purpose.
But Posner is no formalist, as even a cursory reading of
his Problems of Jurisprudence reveals.85 Posner is a pragmatist, which means amongst other things that he endorses judicial reasoning that is purposive and consequentialist. So we are
left with the questions broached earlier: How did Posner and
2000).
81
Id. at 1228.
POSNER, supra note 15, at 123.
83 Id. at 95-99.
84 Bush v. Gore, 531 U.S. at 119 (“No reasonable person would call it ‘an error
in the vote tabulation,’ FLA. STAT. § 102.166(5) (West 2000), or a ‘rejection of . . . legal
votes,’ FLA. STAT. § 102.168(3)(c) (West 2000), when electronic or electromechanical
equipment performs precisely in the manner designed, and fails to count those ballots
that are not marked in the manner that these voting instructions explicitly and prominently specify.”).
85 See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 40-41 (1990):
[T]oday when used pejoratively, “formalism” is more likely to refer to
an exaggerated belief in the transparency of statutory or constitutional language and hence in the possibility of definitively correct answers to difficult interpretive questions. . . . [It] spares the lawyer or
judge from a messy encounter with empirical reality.
82
Id.
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the concurring Justices come to make the characterizations
they did and why should they and others find those arguments
plausible?
Here, too, the answer is that the arguments trade on
the expectations engendered by the game metaphor. Games are
defined by the formal order of their rules—which are essentially arbitrary and, for that very reason, utterly authoritative.
You can’t ask why the Queen in chess can move in any direction; there’s no reason for it, that’s just the rule. In just the
same way, when the Florida court asks why it is that we count
votes and, then, takes that into account in deciding what constitutes a legal vote, Posner treats the question as out of
bounds; it seems obvious to him that the decision is a case of
the court imposing its own populist values. But it isn’t; it’s just
standard-order, purposive legal reasoning. It occurs every day
in law, and is ordinarily celebrated by a pragmatist like Posner. Thus, Posner has previously written that:
The contestability of legal rules stand in contrast to that of . . . the
rules of the game. . . . Although the rules of the game are changed
from time to time, it is unthinkable (in a “serious” game) to change
the rule during the game. . . . But legal rules do not so completely define the activities which they enable or facilitate that those activities
lose their purpose if the rules are changed while the activities are in
progress. A chess player who announces in the middle of the game
that he will not allow his rook to be captured by his opponent’s
queen, because queens have too much power in chess, might just as
well sweep all the pieces from the board; and it would not make the
slightest difference whether . . . the player waited until he lost the
game and then asked the umpire to order it replayed under rules reflecting a more equitable distribution of power among the pieces.
These sorts of appeals are allowed in law, however.86
In law, the refrain “you can’t change the rules in the middle of
the game” is always vulnerable to a normative challenge based
on a higher order principle implicit in the law itself. Posner’s
criticism loses track of the important truth that an election is
not a game. It is a legal process that we engage in for very important, very solemn, very democratic reasons.
86
Id. at 49-50. Cf. POSNER, supra note 15, at 225 (quoted supra note 15).
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AND ALL THE M EN AND WOMEN MERELY PLAYERS
Why, then, is our core concept of elections constituted
by our experience and understanding of games? And why, in
the final analysis, should our metaphorical understanding of
elections trump more fundamental values of democracy and
self-rule?
On Huizinga’s theory, the answer is straightforward.
Huizinga sees civilization as evolving through and elaborated
by play. “It does not come from play like a babe detaching itself
from the womb: it arises in and as play and never leaves it.”87
The game quality of American elections is, for Huizinga,
merely a commonplace.88
Long before the two-party system had reduced itself to two gigantic
teams whose political differences were hardly discernable to an outsider, electioneering in America had developed into a kind of national sport. The presidential election of 1840 set the pace for all
subsequent elections. The party calling itself Whig had an excellent
candidate, General Harrison of 1812 fame, but no platform. Fortune
gave them something infinitely better, a symbol on which they rode
to triumph: the log cabin which was the old warrior’s modest abode
during his retirement.89
Though Huizinga’s account has its attractions,90 it is
problematic in at least two ways. First, Huizinga’s concept of
play is, as Caillois first noted,91 much too narrow in its focus on
games with agonistic structure. There are other, familiar forms
of play—ring-around-the-rosie, the child’s game of “putting on
a show,” games of chance—common in our own culture. Huizinga’s account concentrates our attention on the obvious agonistic elements of American elections. But, there are other dimensions of play that, upon analysis, turn out to be equally
important in understanding the phenomenon of American elections. Second, it would seem difficult to root the game-concept
of elections in a foundational spirit of play when Huizinga himself argues that “the play-element in culture has been on the
87
HUIZINGA, supra note 29, at 173.
Id. at 207 (“We need hardly add that this play-factor is present in the whole
apparatus of elections.”).
89 Id.
90 If nothing else, it suggests something of the cognitive and historical depth
of the game-concept of elections.
91 CAILLOIS , supra note 30, at 3-5.
88
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wane ever since the 18th century. . . . Civilization to-day is no
longer played, and even when it still seems to play it is false
play.”92 Huizinga is particularly harsh on modern sports which,
on his view, have been transformed by systematization, regimentation, and professionalization. “Between them they push
sport further and further from the play-sphere proper until it
becomes a thing sui generis. . . .” 93 The same might well be
said of presidential campaigns, where the sports analogy is
particularly powerful.94
We can begin to address these shortcomings by considering the richer conceptual vocabulary offered by Caillois’s typology of play. Caillois identifies four categories of play that he
designates as agôn (i.e., conflict based), alea (i.e., governed by
chance), mimicry (i.e., forms of make believe), and ilinix (i.e.,
vertiginous or “limnal” forms of play such as whirling, roller
coaster rides, or Dionysian revelries such as
Mardi Gras and Carnival).95 Each of these forms of play is defined not by a structure, but an attitude:
the desire to win by one’s merit in regulated competition (agôn), the
submission of one’s will in favor of anxious and passive anticipation
of where the wheel will stop (alea), the desire to assume a strange
personality (mimicry), and, finally, the pursuit of vertigo (ilinix). In
agôn, the player relies only on himself and his utmost efforts; in
alea, he counts on everything except himself, submitting to the powers that elude him; in mimicry, he imagines that he is someone else,
and he invents an imaginary universe; in ilinix, he gratifies the desire to temporarily destroy his bodily equilibrium, escape the tyranny of his ordinary perception, and provoke the abdication of conscience. 96
Because each form of play manifests a different attitude, it also
represents a different character in the sense that it involves
92
Id. at 206.
Id. at 196-98.
94 See, e.g., Apple, supra note 12, at A23 (“[W]inning, as Vince Lombardi said
in another context, is not the main thing but the only thing.”); Eric Schmitt & Irvin
Molotsky, Congress: Joy and Bitterness, Along Party Lines, N.Y. TIMES , Dec. 13, 2000,
at A25 (“Senator Byron L. Dorgan, Democrat of North Dakota, agreed, saying, ‘If the
Supreme Court rules against Mr. Gore, I think it’s been game, set, match.’”); Purdum,
supra note 17 (quoted text accompanying note 17, supra).
95 CAILLOIS, supra note 30, at 44.
96 Id.
93
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particular beliefs, feelings, values, and behavioral dispositions.
Thus, for Caillois, “the destinies of cultures can be read in their
games. The preference for agôn, alea, mimicry, or ilinix helps
decide the future of civilization.”97
In his well-known Law and, Arthur Leff applied Caillois’s sociological theory to explain the structure of the American judicial trial.98 Leff argued that neither the adversary
structure nor the winner-take-all format of the trial seem particularly well suited to a procedure designed to elicit truth and
achieve justice.99 But, he concluded, they make perfect sense as
a product of larger cultural themes in which agonistic games
dominate daily life. Americans, Leff observed, are virtually obsessed with games: “they take part, either as participants or
spectators, in a vast array of activities they call ‘sports’ and
‘games.’ They have ‘baseball,’ ‘football,’ ‘basketball,’ ‘tennis,’
and ‘golf.’ They have ‘chess,’ ‘checkers,’ ‘bridge,’ and ‘Monopoly.’
And these lists hardly begin to exhaust the scope of the activity.”100 The trial, he concluded, is “an amphibian cultural artifact that embodies, simultaneously, at least two different social
mechanisms.”101 It is both a more-or-less effective solution to
the practical problem of determining “what happened” and, at
the same time, the enactment of a deeply held cultural aesthetic.102
The American obsession with games has, if anything,
increased since Leff wrote. Professional sports seasons have
been so far extended that we often seem to have football, baseball, basketball, and hockey all at the same time. Video and
computer games can be found in most every home —and in
multiple technological formats that include television consoles,
personal computers, and handhelds. While gambling in various
forms has always been with us, it is no longer the special
provence of Las Vegas or the neighborhood numbers racket.
97
Id. at 35.
Leff, supra note 35, at 998-1005.
99 Id . at 1004 (“It is, after all, inherently implausible that an epistemological
inquiry in the form of an agonistic game maximizes thoroughness and accuracy of
factual determination.”).
100 Id. at 998.
101 Id. at 1005.
102 See id. at 1003 (“[I]t is the nature of the game solution that it be, so to
speak, an aesthetic solution to a practical problem: one does something and can be seen
to do something that ‘fits’ the rule that gives it significance.”).
98
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Fabulous gambling casinos have now sprung up in Atlantic
City and on numerous Indian reservations. We have also seen
the explosion of state-run lotteries—often sold as a means of
financing local education. These government-run lotteries are
heavily promoted in television, radio, and billboard advertisements that multiply as the jackpots build. Drawings are covered live on the local news.
The saturation of American life by games and game
playing is hardly a surprise. After all, by mid-century, baseball
was firmly entrenched as the “national pastime”; it was a standard trope of World War II era movies that one could always
identify a German infiltrator by asking “Who won the World
Series?” In the post-war era, the simultaneous increase in leisure time (the forty-hour work week now a standard of American working life) and the advent of television (with its voracious appetite for programming) have fueled the further penetration of games—particularly professional sports, but also
game shows of many varieties—in American culture. More
surprising is the explosion of lotteries and gambling over the
last twenty-five years. A scant century ago, the idea that lotteries were a “widespread pestilence” justifying nearly universal
state prohibition as well as congressional action barring the
movement of lottery tickets in interstate commerce was simply
a truism of constitutional law.103 Today, one can scarcely find a
state that does not run a lottery.
There is another way in which the explosion of gambling seems—superficially, at least—to be at odds with American culture. The heart of the Huizinga-Caillois argument is
that the dominance of agonistic forms of play in Western culture conduces to competitive, meritocratic forms of social ordering in the economic, social, and political institutions of everyday life. Conversely, Caillois argues that societies which manifest a marked preference for alea, mimicry, or ilinix tend toward very different forms of social ordering.104 From this per103
Champion v. Ames, 188 U.S. 321, 357 (1903).
See CAILLOIS, supra note 30, at 83-86:
[I]f games are cultural factors and images, it follows that to a certain degree a civilization and its content may be characterized by its
games. They necessarily reflect its culture patterns and provide useful
indications as to the preferences, weakness, and strength of the given
society at a particular stage of its evolution. . . .
I do not mean to insinuate in any way that cultures are like games
104
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WHEN SELF-GOVERNANCE IS A GAME
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spective, the rise of institutionalized gambling appears at first
blush as an aberration in our market-based, highly competitive, careerist, work-oriented culture.
I do not want to make too much of this purported anomaly, for there are many ways in which the inconsistency is only
apparent. For one thing, the “get rich quick” impulse behind
the popularity of state-run lotteries is perfectly consonant with
the materialist values and “rags to riches” folk model (conve ntionally identified with the Horatio Alger story105) that characterize American culture. For another, there are innumerable
games from backgammon to Monopoly that combine agôn and
alea. Indeed, the combination of competition and chance is integral to the meaning and psychological resonance of the play
in which the player’s pleasure derives from having done as well as
possible in a situation not of his creation, the course of which he
alone can only partly control. Chance is represented in the resistance offered by nature, the external world, or the will of the gods to
his strength, skill, or knowledge. The game seems like the very image of life, yet an imaginary, ideal, ordered, separate, and limited
image.106
In this way, success in the game provides the psychological satisfaction of obstacles overcome and mimics for the player the
satisfaction from mastery that may elude him or her in real
life.
From a psychological point of view, in other words, play
serves a compensatory function. The psychological centrality of
games derives from their capacity to create order in a chaotic,
unpredictable, imperfect world. The precise, often arbitrary
rules of a game are comforting because they define time and
space, the permissible and impermissible, winners and losers.
and therefore also governed by agôn , alea, mimicry, and ilinix. . . .
However I also suspect that the principles of play, per sistent and
widespread mainsprings of human activity, . . . must markedly influence different types of society.
Id.
105 In popular culture, Horatio Alger is often mistaken for the hero of these
stories; in fact, Alger was the author of over forty novels and short stories with this
theme. See Steven L. Winter, The Cognitive Dimension of the Agôn Between Legal
Power and Narrative Meaning, 87 MICH. L. REV. 2225, 2268 (1989).
106 CAILLOIS, supra note 30, at 75. See also id. at 121 (“There is doubtless no
combination more inextricable than that of agôn and alea.”).
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Games provide structure, aesthetic order, and closure. Play, in
other words, provides respite from the conditions and uncertainties of ordinary life.
But, for play to work as escape from life’s pressures, it
must take a particular, psychologically resonant form: It must
mimic the life-world, and it must do so in a way that is both
psychologically “safe” and, at the same time, allows that world
to be mastered or overcome. In agonistic games, the players
rely on their merit in regulated competition governed by conditions of formal equality. Here, unlike life, it is only who you are
and not who you know that determines success. In games of
chance, the players submit to powers that elude them—
subsuming their will-to-power in anxious and passive anticipation of where the wheel will stop. In games of mimicry (i.e.,
play acting), the players imagine themselves as someone they
are not (but long to be), inventing and inhabiting an imaginary
proxy universe.
The need for this psychological compensation is intensified under the highly competitive conditions of late-capitalist
societies such as the United States.107 Modern society presents
itself as rewarding merit expressed under conditions of competitive equality. Nearly every aspect of the social and economic world is organized by competition in markets that are
presumptively open, fair, and governed only by merit.108 But,
there is inevitable discordance between expectation and reality. Everyone wants to be first; but, by definition, everyone
cannot be. “Daily competition is harsh and implacable as well
as monotonous and exhausting. It provides no diversion and
accumulates rancor. It abuses and discourages. . . .”109 Thus,
the injunction to “pull yourself up by your bootstraps” implies
to those who fall behind that they have only themselves to
blame. At the same time, the sheer complexity of late-capitalist
societies requires enormous endowments of social capital—the
107 By “late capitalism,” I refer to the social conditions and practices
characteristic of postmodernity in so -called “post-industrial” economies such as ours.
These practices and processes include techno-bureaucratic rationalization, commodification, consumerism, media saturation, and social fragmentation. See, e.g., Steven L.
Winter, For What It’s Worth, 26 LAW & SOC’Y REV . 789, 793-99, 811-12 (1992).
108 See CAILLOIS , supra note 30, at 114 (“modern society tends to enlarge the
domain of regulated competition, or merit, as the expense of birth and inheritance, or
chance, an evolution which is reasonable, just, and favorable to the most capable.”).
109 Id. at 119.
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WHEN SELF-GOVERNANCE IS A GAME
1199
right schools, the technical know-how—just to have a fair
chance to compete. Eligibility (i.e., formal equality) simply does
not suffice for meaningful participation in the rigors of real world social and economic contest.110 “Wealth, education, training, family background are all external and often decisive conditions which in practice may negate legal equality.”111 To
those without such advantages, it will often seem that success
is governed more by chance than by merit. And, in any event,
“Chance, like merit, selects only a favored few.”112
In this context, play assumes the starkly political functions of legitimation and pacification. For those with the physical skill to compete successfully, agonistic games like sports
provide an opportunity to triumph that might otherwise be absent from their day-to-day experiences in the economic and social sphere. Even when the player is not successful, the game
nevertheless provides the comfort and reassurance of regulated
competition under conditions of absolute formal equality—i.e.,
that the rules are fair and the playing field even.113 Thus fortified, the player can return to the larger arena of real-world
contest with the sense (or illusion) that things are as they
should be—i.e., that competition is fair and success still possible.
For those who cannot effectively compete, gambling and
other games of chance provide “a necessary compensation for
agôn. . . . Recourse to chance helps people tolerate competition
that is unfair or too rugged.”114 As in agonistic games, gam110 See id. at 112:
The equality of citizens is proclaimed, . . . [but i]nheritance continues
to weigh upon everybody like a mortgage that cannot be paid off—the
laws of chance that reflect the continuity of nature and the inertia of
society. . . . Laws and constitutions seek to establish a fair
balance. . . . However, it is obvious that the competitors are not equal in
opportunity to make a good start.
111 Id. at 112.
112 Id. at 120.
113 This will be true, moreover, whether the game is one of pure skill or one
that combines competition and chance. See Callois, supra note 30, at 74-75 (“In play
and games, agôn and alea are regulated.”).
114 Id. at 115; see also id. at 114:
[M]any people do not count on receiving much from personal merit
alone. They are well aware that others are abler, more skillful,
stronger, more intelligent, more hardworking, more ambitious, healthier, have a better memory, and are more pleasing or persuasive than
they are. . . . They therefore turn to chance, seeking a discriminatory
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bling and other games of chance provide formal equality; in
alea, Caillois observes, formal equality is all the more rigorous
for its mathematical precision.115 Games of chance are more
radically leveling—and, hence, yet more effective in their legitimating function: “[E]ven the least endowed . . . may be equal to
the most resourceful and perspicacious as a result of the miraculous blindness of a new kind of justice.”116
Much the same process is at work in the cult of celebrity
characteristic of contemporary mass culture. Caillois refers to
it as a form of “alienation,” arguing that this form of “identification constitutes one of the essential compensatory mechanisms of democratic society.”117 By identification with the
sports hero or movie star, ordinary citizens can share vicariously in the triumphs, adulation, and lavish lifestyle they could
never achieve themselves. (Hence, the appeal of such shows as
Lifestyles of the Rich and Famous.) It is a crucial part of this
compensatory process, however, that the fans be able to see
themselves in these proxies. This is what accounts for two of
the singular aspects of celebrity culture: (1) the mythos of the
rise from obscurity—the starlet discovered at the drugstore
counter, the body-builder turned movie star (and Kennedy inlaw), the boy from Tupelo, Mississippi becomes the King of
Rock and Roll or the one from Hope becomes President;118 and
(2) the voracious appetite for gossip about celebrities—their
affairs, divorces, weight problems, personal tragedies, and
other melodramas—that fuels the enormous industry of tabloid
journalism. On one hand, as Caillois remarks, the meteoric rise
from obscurity of “the champion and the star illustrate the
dazzling successes possible even to the most underprivileged. . .
.”119 On the other hand, there is an underlying envy and resentment that revels in the foibles and failings of the rich and famous—the concomitant need to pull one’s idols down off the
pedestal and prove that they are, after all, really no better
than the rest of us.120
principle that might be kinder to them.
115 Id. at 74.
116 Id. at 114.
117 Caillois, supra note 30, at 122.
118 This folk model is probably as old as culture: It can be found in fairytales
such as Cinderella and, in a variety of forms, in both the Old and New Testaments.
119 CALLOIS, supra note 30, at 124.
120 See id. at 123 (“One also imagines such a career to be somewhat suspi-
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Under conditions of late-capitalism, agôn tends to
merge with mimicry as play is rationalized, professionalized,
and commodified. “While Americans are spending less time
doing sports,” Putnam observes, “we are spending more time
and money watching sports. . . .”121 Watching professional
sports—especially on television—has increasingly supplanted
actual play.122 Just as the cult of celebrity allows even the lowliest to “succeed” through identification with sports heroes and
movie stars, a culture of spectator sports enables fans to “win”
vicariously via the professional teams they root for. So, too,
with other forms of play: More and more, people observe it
rather than participate themselves. For example, while attendance at museums and concerts is up, the proportion “of
households in which even one person plays an instrument has
fallen from 51 percent in 1978 to 38 percent in 1997.”123 Play
still provides psychological escape, but it is progressively passivized—even alienated.
The increasing passivity of play is mirrored in the political sphere. In the last quarter of the twentieth century,
fewer Americans signed a petition, wrote to their elected representatives, attended a town or school board meeting, belonged
to a political club, worked for a party, ran for political office,
participated in a public rally, or went to hear a political speech
than in decades past.124 For most Americans, participation in
self-governance subsists in the occasional, formalistic act of
voting on election day. And, of course, e ven that is declining:
Throughout most of the twentieth century, voting rates in the
United States were much lower than in almost all other advanced
democracies. From 1960 to 1995, the average election turnout in
thirty-seven other countries almost invariably exceeded 70 or 80
percent of the eligible citizens, with only a modest decline in recent
cious, impure, or irregular. The residue of envy underlying admiration does not fail to
see in it a triumph compounded of ambition, intrigue, impudence, and publicity.”).
121 ROBERT D. PUTNAM , BOWLING ALONE : THE COLLAPSE AND REVIVAL OF
AMERICAN PUBLIC LIFE 109-13 (2000).
122 “[A]s a fraction of the population, participation in all of the following sports
has fallen by 10-20 percent over the last decade or two: softball, tennis (and other
racket games, like table tennis), volleyball, football, bicycling, skiing (downhill, crosscountry, and water), hunting, fishing, camping, canoeing, jogging, and swimming.” Id.
at 109. The same is true for youth sports, with the exception that there has been an
increase in organized school sports for young women. Id. at 110.
123 Id. at 114-15.
124 Id. at 40-41.
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years. During the same period, turnout in American presidential
elections was 20-40 percent lower than the average for most of these
nations, and declined much more sharply. From the early 1960s to
1996, voting in presidential elections fell by 25 percent, from well
over 60 percent to slightly less than 50 percent. In off-year elections
for Congress and for governorships, turnouts dropped from 48 percent in the mid-1960s to 36 percent in 1998. Over the same period,
voting rates in midterm primary elections plummeted from approximately 30 percent to barely more than 17 percent. These trends
are all the more remarkable since they occurred in a period when
registration barriers were falling and education levels were increasing throughout the population. 125
Even more striking than these bare statistics is the fact that
declining voter participation has coincided with the professionalization of politics. In the last third of the twentieth century,
American political parties experienced phenomenal growth in
financing, organization, size of professional staff,
sophistication of their polling and advertising even as party
loyalty and citizen participation steadily declined.126
But, if politics and play seem largely parallel in their
increasing passivity, they remain sharply different in their degree of penetration in daily life. In sharp contrast to the pervasiveness of games in American culture, the experience of selfgovernance is abstract, theoretical and alien. Frank Michelman
explains that in republican theory: “Freedom in its fullest
sense is self-government, active engagement in a self-directive
process that is cognitive as well as volitional.”127 But, in that
sense, most of us are not free. Most of us live and work in social
institutions that are hierarchical and bureaucratic. Very, very
few of us live in municipalities governed by town meetings, attend democratically organized houses of worship, or labor in
self-governing workplaces. Nor are our families democratically
organized. From dawn to dusk, except perhaps on election day,
democracy and self-governance are strangers—no real part of
our day-to-day experience. Indeed, as we have seen, Americans
increasingly lack self-governance even in their play. It should
125
DEREK C. BOK, THE TROUBLE WITH G OVERNMENT 387 (2001).
PUTNAM , supra note 121, at 37-40.
127 Frank I. Michelman, The Supreme Court, 1985 Term—Foreword: Traces of
Self-Government, 100 HARV . L. REV . 4, 73 (1986).
126
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WHEN SELF-GOVERNANCE IS A GAME
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hardly seem surprising that, as Frank Michelman observes,
“active self-government” is something “that citizens find practically beyond reach.”128
We can now see why our core concept of elections is constituted by our experience of games rather than our understanding of democracy. First, for us as Americans, the practice
of game-playing is concrete, immediate, and familiar. But, if we
have a robust, well-developed understanding of games, we are
not equally well versed in the practices of self-government.
Simply put, we do not truly understand democracy and selfrule because we have little or no experience of it. To par aphrase something I said in the book, a better election law can
always be promulgated, but self-governance must be lived if it
is to continue to be recognized as such.129 No wonder the rhetoric of games and game -playing seemed more resonant than arguments premised on substantive democratic values: The latter had nothing to resonate with.
Second, one can hardly expect fundamental values of
democracy and self-rule to trump the expectations of the game
metaphor when, in both social spheres, we have internalized a
passive ethic of spectatorship and consumerism. For most
Americans, politics is a game that—like most games—is played
by others.
Barely two decades ago election campaigns were for millions of
Americans an occasion for active participation in national deliberation. Campaigning was something we did, not something we merely
witnessed. Now for almost all Americans, an election campaign is
something that happens around us, a grating element in the background noise of everyday life, a fleeting image on a TV screen. Strikingly, the dropout rate from these campaign activities (about 50 percent) is even greater than the dropout rate in the voting booth (25
percent). 130
Here, as elsewhere in contemporary culture, voters are reduced
128 Id. at 74; see also id. at 75 (“For a citizen of Geneva it was pe rhaps imaginable that positive freedom could be realized for everyone through directdemocratic self-government, a sovereignless civic process of ruling and being ruled,
with no place for legal authority beyond the process itself. But for citizens of the
United States, national politics are not imaginably the arena of self-government in its
positive, freedom-giving sense.”).
129 See WINTER, supra note 27, at 352.
130 PUTNAM , supra note 121, at 41.
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to mere consumers. “Participation in politics is increasingly
based on the checkbook, as money replaces time.”131 As consumers, satisfaction is achieved not in civic participation, but
indirectly through identification with one’s candidates or as
spectators of staged campaign events and content-free televised
debates. And, just as the cult of celebrity comprises a resentment that relishes the failings of the famous, the practice of
our postmodern, non-participatory democracy entails a corrosive cynicism about a political game in which the average citizen cannot compete (and, therefore, can never win). Little
wonder that Americans are apathetic about politics, cynical
about politicians’ motivations, and suspicious of their government.
The judicial resolution of the 2000 presidential contest
and the muted public reaction to the Court’s usurpation in
Bush v. Gore pose a seemingly overwhe lming challenge. For
those who care about democracy, the picture seems bleak indeed. One thing, however, seems clear: If we are ever to reclaim the values of democracy and self-governance, it will be
only because we have begun to practice and live those values in
our communities, our workplaces, and our everyday lives.
Now, perhaps, is the time to begin.
131
Id. at 40.
AFTERWORD
STEVE WINTER’S A CLEARING IN THE FOREST∗
Gary Minda †
Law is a cerebral enterprise. Much of what happens,
happens in the mind. One might think that lawyers, judges,
and legal academics would have developed by a sophisticated
understanding of how the legal mind does its work in the law.
And, yet surprisingly, until now, there is no serious body of
literature on the workings of the legal mind. How is it that
judges and lawyers have entirely overlooked the important role
of human cognition in the law? And what permits judges and
lawyers to say without any queasiness that they know what it
means to “think like a lawyer” when they in fact know so little
about how lawyers think? These are questions that call out for
a response and yet, not until now, few have bothered with such
questions. The fact is, we are still in the dark ages when it
comes to understanding how the mind works in the law. In this
Symposium, readers have an opportunity to consider one of the
first academic efforts to explain how humans actually make
legal reasoning possible.
By most accounts, the mind is the thinking machine
that processes information and permits lawyers to “think like a
lawyer.” And, how does this machine actually do its work? In
law school, law students learn logic and fallacy of legal arguments. The “IRAC” method for writing law, as every law student is taught to learn, is based on syllogistic reasoning, which
∗
©2002. Gary Minda. All Rights Reserved.
† Visiting Professor of Law, St. John’s University School of Law (2001-2002);
Visiting Professor of Law, University of Miami School of Law (2002-2003); Professor of
Law, Brooklyn Law School.
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is thought to be the basic mode of legal reasoning in its purest
sense. Issues are identified, relevant rules are discovered; the
relevant rules are then “applied” to the facts, and out comes
the “conclusion”—Judgment for plaintiff, or defendant. It is all
about getting the “right” case in the “right” category. For sophisticated practitioners and judges, the reasoning process is a
matter of common sense and pragmatic judgment. As Judge
Richard A. Posner once described it in one of his famous moments of honest reflection: when confronted with difficult legal
controversies in the law, experienced judges “roll up their
sleeves” and “get a job done.”1 Of course, the messy job of “how
to do it” is left largely unanswered. For Justice Scalia, legal
reasoning is mainly the exercise in following the rules, with
balancing and totality-of-circumstances tests to cover those
cases where the rules do not quite fit the facts.2 As it turns out,
however, balancing and totality of the circumstances are not
the exception; they are usually the norm and when these tests
are applied legal reasoning is far from consistent or predictable.
The fact is that there is little meaningful discussion to
be found in the case law or in the legal literature on how reason does work in the law. Phrases like “reasoned elaboration”
or “neutral principles” from the 1950s legal process culture
only obfuscate what really happens when judges do law. An
unescapable conclusion to be gleaned from the work of sophisticated legal philosophers like Ronald Dworkin is that reason is
something that judges do when they make the law the “best it
can be” with cryptic references to the “practical wisdom” of legal culture.3 For all his grandiloquent talk of what philosopherking judges might do in the law, Dworkin practices a kind of
“as if” jurisprudence that never reveals how it is real world
judges are supposed to “reason” their way to the right answer
in the law. We are thus left wondering what exactly is it that
judges and lawyers do when they are “doing” law?
Recent work in the interdisciplinary field of cognitive
1
Richard A. Posner, Bad Faith, NEW REPUBLIC, JUNE 9, 1997, at 34 (reviewing DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (fin de siecle) (1997)).
2 Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI . L. REV . 1175,
1178-80 (1989).
3 See, e.g., RONALD DWORKIN, LAW ’S EMPIRE (1986).
2002]
AFTERWORD
1209
sciences, however, makes it possible for the first time to understand how reason in the law does work.4 Much of the learning
in cognitive science is coming to define a new field of legal studies known as cognitive legal studies, due largely to the work of
Steven L. Winter.5 We are celebrating with this symposium
Winter’s most recent text, A Clearing in the Forest: Law, Life,
and Mind. A Clearing in the Forest6 is the culmination of many
years of work based on the recent findings of cognitive science
about how the human mind works in the law. A Clearing in the
Forest is a compelling meditation on how the new learning
about human cognition is informing some of the most intuitive
understandings of the reasoning process used in the law, as
well as challenging many misunderstandings and misconceptions about the nature of reason itself. After reading Winter,
one can no longer deny the relevance of cognitive science in the
law.
I.
THE CENTRAL METAPHORS
A Clearing in the Forest begins with a short story from
William James’ book, On a Certain Blindness in Human Being.7 This story sets forth a metaphor that helps to explain
Winter’s account of how law works and why law is irrepressibly
an imaginative, creative quality of human reason. The story is
about a trip that William James took to the mountains of
North Carolina. On that trip, James said that he learned something about how human imagination constrains meaning.
James explains his initial impression of seeing the “coves” or
“clearings” early settlers had cut into the forest in the valleys
4 The field of cognitive science is largely the result of the ground breaking
works of George Lakoff and Mark Johnson. See, e.g., GEORGE LAKOFF & MARK TURNER,
MORE THAN COOL REASON: A FIELD G UIDE TO POETIC METAPHOR (1989); MARK
JOHNSON, THE BODY IN THE MIND : THE BODILY BASIS OF MEANING , IMAGINATION, AND
REASON (1987); GEORGE LAKOFF, WOMEN, FIRE , AND DANGEROUS THINGS (1987);
G EORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY (1980).
5 See, e.g., Steven L. Winter, Contingency and Community in Normative Practice, 139 U. PA. L. REV . 963 (1991); Steven L. Winter, Indeterminacy and Incommensurability in Constitutional Law, 78 CAL. L. REV . 1441 (1990); Steven L. Winter,
The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning, 87
MICH. L. REV . 2225 (1989).
6 STEVEN L. WINTER, A CLEARING IN THE FOREST : LAW , LIFE , AND MIND (2001).
7 THE WRITINGS OF WILLIAM JAMES: A COMPREHENSIVE EDITION 629, 630-31
(John J. McDermott ed., 1968).
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of the mountains to clear away a space for a log cabin and
farm. In viewing these coves or clearings for the first time,
James reports that his initial reaction was one of repulsion;
what he saw was “unmitigated squalor.”8 In viewing the remaining charred stumps where trees once stood, James remarks on the destruction of the forest, and how what had “improved” was “hideous, a sort of ulcer, without a single element
of artificial grace to make up for the loss of Nature’s beauty.”9
In asking a mountaineer about this, James said he
wanted to know “[w]hat sort of people are they who have to
make these new clearings?”10 The mountaineer replied: “All of
us. . . . Why, we ain’t happy here, unless we are getting one of
these coves under cultivation.”11 James reports that in hearing
this he instantly came to understand that he had been “losing
the inward significance of the situation,” and that his experience had blinded him to the meaning of the cove to the settlers.12 Where the clearing had once been seen as destruction
and “denudation,” the same spaces could be seen as a source of
pride and beauty by those who chopped away the trees and
made the forest their home. As James came to see, when the
people who lived there looked at the clearing and the “hideous
stumps” they saw “personal victory . . . honest sweat, persistent toil and final reward.”13 The clearing that was “an ugly
picture on the retina” to James, was to the people who lived in
the clearings “a symbol redolent with moral memories and
sang a very paean of duty, struggle, and success.”14
One way to understand the relevance of James’ story to
Winter’s project is to consider how the relationship between the
“forest” and the “clearing” has been imaginatively used by
writers to talk about the importance of law. Hence, in Robert
Bolt’s A Man for All Seasons,15 another story that figures importantly in the beginning of Winter’s book,16 Bolt describes a
conversation between Sir Thomas More and his future son-in8
WINTER, supra note 6, at ix.
Id.
10 Id.
11 Id.
12 Id.
13 WINTER, supra note 6, at ix.
14 Id.
15 ROBERT BOLT, A MAN FOR ALL SEASONS (1960).
16 See WINTER, supra note 6, at 1.
9
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AFTERWORD
1211
law, Roper, about the importance of showing deference to the
law in the face of evil. Roper wants to do whatever is necessary
to destroy evil, even if it means disregarding the law. Sir Thomas asks Roper: “What would you do? Cut a great road
through the law to get after the Devil?” Roper responds: “I’d cut
down every law in England to do that.” Sir Thomas then explains:
Oh? And when the last law was down, and the Devil turned around
on you—where would you hide, Roper, the laws all being flat? This
country’s planted thick with laws from coast to coast—man’s laws,
not God’s—and if you cut them down—and you’re just the man to do
it—do you really think you could stand upright in the winds that
would blow then? 17
Here, Robert Bolt relies upon his reader’s imagination
of a forest to derive the importance of the law. Each tree in the
forest is a law, and if the trees are cut down they will not be
any protection for man. Unlike James’s story that focuses on
the meaning of the “clearing”; Bolt encourages his reader to
focus on the meaning of the trees in the forest for an understanding of why it is important to show fidelity to the law.
In beginning his book with these stories, Winter asks us
to consider how human thought is “irreducibly imaginative.”18
When we read these stories we instinctively understand the
meaning of the “forest” because we share the author’s experiences with the forest. The forest can both protect us and be
something that needs to be tamed and civilized. The shared
experiences about the nature of a “forest” thus become domain
from which we draw information for understanding something
else. This is how metaphor works cognitively. We draw information from a domain that we know about to help explain the
target domain of the unknown. Metaphor, of course, is only one
of several cognitive mechanisms used in human thought that
Winter explores to ascertain how reason works in the law. A
principal claim of Winter’s book is that developments in cognitive theory make it possible to describe the cognitive mechanisms that enable humans to reason.
What is striking about Winter’s two introductory stories
17
BOLT, supra note 15, at 66.
supra note 6, at 5.
18 Winter,
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by James and Bolt is that they help to illustrate what is wrong
with the way “reason” is understood in the law. As Winter explains, the standard account of legal reasoning is based on the
“objectivist” view that “understands the world as made up of
determinate, mind -independent objects with inherent characteristics or ‘essences.’”19 The basic notion that is widely held is
that “reason” works because we can ascertain the truth of observable features of our world. In thinking of reason in this
way, it becomes easy to see why those in the law would think of
legal reasoning as “abstracting from a judicial opinion or other
authoritative legal text the principles that express the necessary and sufficient conditions, properties, or criteria that characterize it.”20
Winter argues that this is not how we actually reason in
the law. As literary writers know, however, reason is imaginative and grounded in shared experience. Winter can thus be
read as advancing a literary or poetic insight. He proclaims:
“[R]ationality is imaginative and grounded means, quite simply, that we use physical and social experience and general cultural knowledge to categorize and understand.”21 Much of the
effort of legal theorists is based on the goal of justifying law as
a constraint on the human mind. Hence, Sir Thomas tells
Roper that all hell will be unleashed if others follow his advice
and fail to follow the commands of the law. Constraint is what
keeps judges in line and it is constraint that is thought to limit
judicial imagination. This is why Richard A. Posner does not
believe that law and literature have much in common; lawyers
and judges, unlike literary writers, are required to follow and
respect the conventions of the law.22 Much of the writing about
law is thus aimed at justifying law as constraint; meta-theories
are offered and considerable time is devoted to debating the
existence or non-existence of reasons for constraint.
A second principle claim of the book is that in order to
understand how the mind does work, we need to “shift our focus away from metastructures (or lack thereof) to the cognitive
and cultural infrastructures, if we are going to make any sense
19
Id. at 9.
Id. at 7-8.
21 Id. at 12.
22 See RICHARD A. POSNER, LAW AND LITERATURE : A MISUNDERSTOOD
RELATION (1988).
20
2002]
AFTERWORD
1213
of the phenomenon of law.”23 Instead of looking outside to find
the structures that are thought to give law regularity as a
source of constraint on human action, Winter examines the
inner world of human cognition.24 The fact that the law does
work is what Winter wants to explain. He argues that by looking to the infrastructures of human cognition we can begin to
understand how and why the phenomena of human persuasion
works in the law to give law its regularity in application and
predictability. The “recurring structure” and “repeatable pattern” that we find in law can in fact be explained cognitively in
terms of the bodily experiences and cultural context.25
In this important sense, Winter’s text helps to bring out
the significance of mental context for better understanding the
contingent nature of legal thought. Winter wants us to read the
law by considering the viewpoint of the mountaineer in William James’ story. Winter wants us, in other words, to understand that “legal meaning must be lived if it is to continue to be
recognized as such.”26 In order to live in the life of the law one
must come to grips with the human dimension of cognitive
thought as it works in the law to do things. The promise of
cognitive legal studies is that it offers us a way to better understand how concepts and rights in the law are connected to
human imagination grounded in the world of experience and
culture.
When William James saw the coves cut into the forest of
the North Carolina mountains for the first time, his mind’s eye
reacted to the way humans had destroyed a beautiful forest.
What he failed to see was the meaning of the coves for all of
those who lived and died on the land. What he failed to see was
that the coves cut into the forest were a source of beauty and
hope for those who struggled to survive in the mountains.
What James came to see was a new source of meaning in the
practices and commitments of the people who lived on the
mountains. Winter wants us to rediscover the meaning of our
law in our own practices and commitments. To do what he
wants us to do, we must first come to understand how reason
in law actually works and what it means. This is what one can
23
WINTER, supra note 6, at 11.
Id.
25 Id. at 333-47.
26 Id. at 351.
24
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learn from reading Winter’s text.
Winter’s text demonstrates how “meaning-making” in
the law is shaped and constructed from human imagination
situated within a physical, cultural, social, and ideological milieu. I read Winter as arguing that we should better understand the meaning we make in the law in order to understand
how law might better serve us in creating the kind of society
we desire. For Winter, the new lessons about the mind should
help us better understand how we can do things with the law
in the course of constructing and reconstructing the world in
which we live.27 In doing so, we can discover what it means to
be human in the law. As Winter explains:
[O]nce we recognize that meaning is constituted in our imaginative
interactions with the environment, we can begin to understand ourselves as human–that is, as beings who think in terms of our situation, form our categories in contact with our experience, and modify
that situation and that experience by the meaning we discover in
them.28
II.
THE COGNITIVE INSIGHTS OF A CLEARING IN THE
FOREST.
A Clearing in the Forest offers some important new
ideas about how reason works in the law. Drawing from the
work of George Lakoff and Mark Johnson and other cognitive
scientists, Winter develops his insights from three basic ideas
about the nature of human cognition: (1) reason in the law is
embodied and imaginative and not syllogistic and logical as
some believe; (2) metaphor is a central modality of reason in
law, and not merely an ornamental device used to spice up language; and (3) ideas and concepts in the law can be shown to
have a contingent grounding in human experience.29 These
three insights challenge some of the basic notions about how
language, reason, concepts, and categories work to give meaning to things in the law and how law’s claim to reason can be
put into question.
My own work in the law of boycott reveals how Winter’s
27
Id. at 356.
WINTER, supra note 6, at 356-57.
29 Id. at 5-6.
28
2002]
AFTERWORD
1215
three foundational principles of human cognition can explain
the mess that judges have created with their use of traditional
forms of legal reasoning in dealing with boycott questions in
different substantive areas of the law.30 Judges have organized
their knowledge and understandings of boycott phenomena by
reference to imaginative categories structured by idealized
cognitive models (“ICMs”) of boycott. These models are used in
adjudication to create legal categories that distinguish between
boycotts of different groups–labor, civil rights, and commercial
organizations. The legal categories operate as fixed points in
legal reasoning, even though the imaginary boundary lines between the categories are quite transparent and highly revisable. The models give rise to distinct prototypical cognitive effects that judges use to render what they believe to be legally
correct answers about boycott activities of different groups in
society.
Thus, labor boycotts, framed by an ICM arising out of
the meaning of Trade Union unrest in the early part of the last
century, have been used to deny otherwise peaceful, and obviously political, labor boycotts of constitutional protection under
the First Amendment. On the other hand, civil rights boycotts,
framed by an ICM arising out of governmentally sanctioned
racial discrimination, have been accorded First Amendment
protection. The inconsistency posed by the case law is never
seriously examined because the models used to frame legal
analysis about boycotts arise from substantively different
imaginative grounds—mob violence (labor), democratic participation and self-help (civil rights), or competitive process (business/antitrust). What reveals the imaginative and metaphoric
nature of the boycott decisions are the colorful images that
judges use to justify their results. In the early common law of
labor boycotts, judges labeled otherwise peaceful labor boycotts
as “acts of murder,” and even today secondary boycotts are described as if they were like “cancer” that must be cut out of the
body.31 The imaginative representation of boycott as “murder”
seems strange, but it makes perfect sense in light of the prototypical effects of an imagined category of boycott that equates
peaceful labor-boycott activity with uncivilized, animalistic be30 G ARY MINDA, BOYCOTT IN AMERICA: HOW IMAGINATION AND IDEOLOGY
SHAPE THE LEGAL MIND (1999).
31 See id. at 33-42, 101-08.
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havior.
We cannot expect to understand how legal reasoning
works in the law of boycott, or anywhere else for that matter,
until we understand how metaphor performs cognitively to justify and legitimate highly contested issues in the law. We can
continue to pretend that the law is neutral and logical, but only
if we deny the metaphoric nature of how reason works. As Gary
Peller has insisted: “[L]egal discourse can present itself as neutral and determinate only to the extent it denies its own metaphoric starting points.”32
A Clearing in the Forest offers a methodology for discovering the metaphoric starting points of law’s reason. In doing
so, Winter helps to reveal the politics of law which critical legal
studies scholars famously argued in their earlier critiques of
law’s reason.33 Winter uses the new learning about the way the
mind works from cognitive science to explore why law does
work as “law” and why law is a profoundly ideological activity.
Law works as “law” because judges and practitioners rely upon
a shared “social process of persuasion” that operates in terms
of background normative experience.
For example, when judges thought of labor boycotts as
“acts of murder” in early common law, they relied upon a
highly ideological understanding of the meaning of labor associations that associated labor activity with acts of violence.34
The horrific images of riotous mobs and bombs exploding, made
famous in the history of the labor movement, became the linguistic ground for legal vilification of labor boycotts in the
modern era. The ideological dimension of boycott law has since
become pronounced, as Winter argue s in his book,35 precisely
because “judges are [today] acting in good faith, unaware of the
normative entailments of the conceptual materials with which
they work.”36 It is the commonplace nature of metaphoric reason that gives law its ideological content. The imaginative nature of the legal mind, assuming that we can talk of such a
thing, is the product of a particular context, a particular cul32
(1985).
Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV . 1151, 1182
33 See G ARY
MINDA, POSTMODERN LEGAL
JURISPRUDENCE AT CENTURY’S END ch. 6 (1995).
34 MINDA, supra note 26, at 47-52.
35 WINTER, supra note 6, at 331.
36 Id. at 331.
MOVEMENTS:
LAW
AND
2002]
AFTERWORD
1217
ture, and a unique institutional setting. What Winter’s text
does then is to reveal how the so-called rational modes of legal
analysis are in fact the product of a highly selective legal
imagination that has developed out of the ground of its own
institutional, cultural, and personal experiences.
III.
REPTILES IN THE WEEDS
In reading the William James story about his experiences in the forest of North Carolina mountains, I am reminded of what Justice Stevens had said about the dangers of
the forest. To quote Justice Stevens: “A court must be wary of
claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees.”37 This quote was used by Justice Stevens to
explain the pitfalls of using case precedent to explain the legal
meaning of boycott. Justice Stevens explained that the word
“boycott” was like the word “conspiracy,” in that, in the law, it
had a chameleon-like nature; these words were capable of
changing its meaning from context to context.38 Once we begin
to focus on context as a ground for ascertaining the meaning of
things, we begin to run into the same interpretative problems
that judges and lawyers face on an everyday basis in their attempt to apply the law to “facts.” The same imaginative structures that enable judges to apply laws in surprisingly new
ways renders the entire ground of context like quick sand –
regularity of law can be swallowed up at any moment by surprisingly new ideas about the facts and context.
Consider, James’s story about the “clearing” that had
been cut into the forest of the North Carolina mountains that
initially caught his attention and imagination. In observing
those clearings, James learned to understand how meaning
was contingent upon the actions of the people who cut the
coves into the forest. However, that same context may conceal
a long lost meaning that has since been repressed in the
imagination of the people now living in the coves. Maybe William James should have reflected more on how the land that
37 NAACP
38
Id.
v. Claiborne Hardware Co., 458 U.S. 886, 934 (1982).
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the mountaineer cleared came at the expense of Native Americans who were driven from the forest. Their cognitive imagination has been wiped clean from the landscape. Maybe their
blood and lost culture is one of the reptiles hidden in the forest
that Justice Stevens warned us about. The reptile is always
there hiding in the weeds and waits to be discovered by the eye
of an imaginative observer. Once discovered, the reptile comes
out of the weeds and we are faced with new and possibly dangerous interpretative accounts. We have largely forgotten the
ground that was once the world of another culture because our
law and its reason no longer provide us with a means for discovering knowledge of that world. We should be wondering if
there are other reptiles hidden in the forest. A Clearing in the
Forest reminds us that unless we get beyond the sedimentations of meaning we have created with our human imagination,
we will, as Winter explains, “remain prisoners of the social
field—the very clearing in the forest—that we ourselves have
made.”39
The problem is that the legal mind is wedded to a sedimented legal culture that is ideologically structured to persuade us that reason in the law works like a machine to logically manufacture outcomes or results. The ideology of the legal culture also creates its own imaginative world for dealing
with the complexities of life. The legal culture thus motivates
us to think of the judge as a neutral decision maker who logically follows the rules laid down. Ironically, the legal culture
cements the view of legal reasoning as constraint in the minds
of judges and lawyers by reference to a host of imaginative
metaphors that imagine the rule of law as stable and determinant authority. The cognitive tools used in legal analysis are
used by judges as if they were neutral, when the tools are
skewed by normative assumptions drawn from the context and
background of legal culture. The law works, however, because
legal actors instinctively rely on a host of subtle cognitive tools
to give law and legal persuasion the appeal of justification and
regularity.
The grossly under-theorized nature of reason in law
merits attention, and Steve Winter’s book is one of the most
ambitious efforts to date to shed new light on the problem.
39
WINTER, supra note 6, at 356.
2002]
AFTERWORD
1219
Winter’s contribution not only breaks new ground in understanding how reason in the law does work; it also provides a
new dialogue for better appreciating the human dimensions of
law generally. The critical cognitive tools of analysis that Winter offers allows one to discover the “reptiles” as well as get at
the meaning behind the “trees,” “clearings,” and other imaginative features of the “forest” we humans have created in our discourses about law. For that we owe Winter a measure of gratitude for laboring so long in the developing coves of cognitive
legal studies. It is thus bitter-sweet that he will be leaving us
here at Brooklyn Law School for new challenges and new ho nors at Wayne State University School of Law. I, for one, thank
him for being an intellectually stimulating and committed colleague and friend. He will be missed.
NOTE
ERISA PREEMPTION OF STATE TORT LAW
CLAIMS AGAINST MANAGED CARE ENTITIES∗
INTRODUCTION
The recent proliferation of managed health care has
dramatically affected the way most Americans receive their
health care benefits.1 At the heart of every managed care
insurance plan is an emphasis on cost containment.2 As a
result, many patients have suffered poor health consequences
because of decisions by managed care insurers to deny
requested benefits.
Given the widespread use and effect managed care has
had on health care, a health maintenance organization
∗
©2002 John W. Schuch. All Rights Reserved.
The number of Americans using managed care plans is rapidly growing. A
recent count estimated approximately one hundred million Americans are enrolled in
some kind of managed care plan and the percentage of insured employees (working in
firms with at least ten employees) with managed care plans was sixty-six percent.
Saeid B. Aminib, Discrimination of International Medical Graduate Physicians by
Managed Care Organizations: Impact, Law, and Remedy, 2 DE PAUL J. HEALTH CARE L.
461, n.63 (1999).
2 The majority of managed care insurers have elements of quality and cost
control systems that include practice reviews, guidelines, and advanced control over
actual utilization of benefits by both providers and patients. RAND E. ROSENBLATT ET
AL., LAW AND THE AMERICAN HEALTH CARE SYSTEM 20 (1997); Diana Joseph Bearden,
Emerging Theories of Liability in the Managed Care Industry, 47 BAYLOR L. REV . 285,
294 (1995); Bryce A. Jensen, From Tobacco to Health Care and Beyond: A Critique of
Lawsuits Targeting Unpopular Industries, 86 CORNELL L. REV . 1344, 1349-50 (2001);
Eleanor D. Kinney, The Brave New World of Medical Standards of Care, 29 J.L. MED &
ETHICS 323, 325 (2001); Jefferey Rugg, An Old Solution to a New Problem: Physician
Unions Take the Edge Off Managed Care, 34 COLUM . J.L. & SOC. PROBS . 1, 7 (2000).
1
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(“HMO”) or managed care organization (“MCO”)3 that is
negligent in its delivery of health care to its policyholders
should be held accountable for its actions. The most effective
means of accomplishing this accountability is through state
tort law claims.4 However, in order for a plaintiff to maintain a
tort law claim against an HMO, the claim must withstand the
defense of Employee Retirement Income Security Act of 1974
(“ERISA”) preemption.5 Almost all MCOs are governed by
ERISA when their plans are offered by an employer to an
employee, and § 514 of ERISA preempts “any and all State
laws insofar as they may now or hereafter relate to any
employee benefit plan” that is governed by ERISA.”6 Since the
Supreme Court has yet to face the question of ERISA
preemption of a state tort law claims against an HMO, it is
important to analyze how the Court should treat such an issue
if raised in the future.
This Note will discuss two main reasons why the
Supreme Court should allow state tort law claims against
HMOs to survive ERISA preemption. First, a recent trilogy of
Supreme Court cases has begun to narrow the doctrine of
ERISA preemption. In addition, the Court should analyze how
lower courts have scrutinized the issue of ERISA preemption of
state tort law claims against HMOs, and follow the reasoning
of the Fifth Circuit which allowed claims to stand.
Second, the Court should view ERISA preemption of
state tort law claims against HMOs in light of its treatment of
the Federal Cigarette Labeling and Advertising Act’s
(“FCLAA”)7 preemption claims of breach of express warranty
3 Throughout this Note the terms HMO and MCO will be used interchangeably to refer to entities offering health insurance plans while maintaining some
level of health care control with an emphasis on cost containment.
4 See infra Part II.B. (illustrating the ineffective remedies under ERISA for
claims of MCO negligence).
5 88 Stat. 829 (1974), (codified as amended 29 U.S.C. § 1001 et seq. (1988)).
Employer sponsored benefit plans offered by governmental entities, churches, and
plans established solely to comply with workers’ compensation or unemployment
compensation laws are excluded from ERISA regulation. 29 U.S.C. § 1003. I am
assuming for the purposes of this note that the managed care entities discussed are
governed by ERISA.
6 29 U.S.C. § 1144(a).
7 Advertising in the tobacco industry is governed by the Federal Cigarette
Labeling and Advertising Act of 1965, 15 U.S.C. §§ 1331–1341 (1982) [hereinafter
FCLAA]. The Act’s preemption provision states:
(a) no statement relating to smoking and health, other than that
2002]
ERISA PREEMPTION
1223
against the tobacco industry. FCLAA preemption is a useful
guide for analyzing ERISA preemption because of the
similarities between the tobacco industry and managed care
entities. First, the decisions of both industries can have a
marked affect on people’s health. MCOs’ decisions regarding
the provision of benefits can result in policyholders not
receiving necessary medical treatment. Likewise, given the
negative effect of smoking on people’s health, the tobacco
industry’s decisions also have a significant effect on individual
health. In addition, both industries are governed by federal
statutes which were enacted for similar purposes. Both ERISA
and the FCLAA were enacted to reflect a balance between the
regulation of major U.S. industries while promoting economic
growth. Thus, the Court’s treatment of FCLAA preemption
should be used to view ERISA preemption of state law tort
claims against MCOs.
Part I of this Note will trace the rise of managed care in
the United States and illustrate its effect on the American
health care system. Part II.A traces the Supreme Court’s
recent trend of narrowing the doctrine of ERISA preemption.
Part II.B argues that a state tort law claim against an HMO
for negligently adopting a benefits policy can help effectively
ensure the quality of care in managed care. Part III.A argues
that the Supreme Court’s treatment of FCLAA preemption
should be a guide to analyzing ERISA preemption because of
the similarities between the tobacco industry and managed
care entities, the similar objectives of the FCLAA and ERISA,
and the fact that the Supreme Court has yet to face the issue of
a MCO’s liability for a common law tort claim. Part III.B
analyzes the Court’s treatment of FCLAA preemption of a
claim of breach of express warranty against the tobacco
industry and argues that the Court’s analysis is a useful guide
to analyze negligent adoption of a benefits policy by an HMO.
In conclusion, given the Supreme Court’s narrowing of ERISA
preemption, the lower courts’ treatment of state tort law claims
which is re quired by section 133 of this title, shall be required on any
cigarette package.
(b) no requirement or prohibition based on smoking and health shall
be imposed under State law with respect to advertising or promotion of
any cigarettes the packages of which are labeled in conformity with
the provisions of this chapter.
15 U.S.C. § 1334.
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against MCOs, and the Court’s treatment of FCLAA
preemption of breach of express warranty against the tobacco
industry, the Court should allow state tort law claims against
HMOs to survive ERISA preemption.
I.
THE RISE OF MANAGED CARE
Before the 1930s, patients paid directly for medical
services under the traditional American health care system.
But after the Great Depression drastically lowered middle
class incomes, America’s traditional health care payment
system was undermined.8 Since patients were no longer able to
pay physicians directly, health care costs needed to be spread
over a large number of people.9 Thus, the rise of private health
insurance was inevitable.
Indemnity benefit plans were the predominant form of
early private health insurance.10 Although the middle and
upper classes enjoyed a host of benefits under these plans, the
non-working class was largely left uninsured.11 In the 1960s,
the absence of health benefits for the growing number of
elderly people created a powerful political group which, in part,
resulted in the enactment of Medicare and Medicaid in 1965.12
8
ROSENBLATT ET AL., supra note 2, at 8; ROBERT FABRIKANT ET AL., HEALTH
CARE FRAUD: CRIMINAL, CIVIL , AND ADMINISTRATIVE LAW §1.02(2) (2002); David D.
Griner, Paying the Piper: Third Party Payor Liability for Medical Treatment Decisions,
25 G A. L. REV . 861, 874 (1991).
9 ROSENBLATT ET AL., supra note 2, at 8.
10 Id. at 9. Indemnity benefit plans are ones in which patients pay their health
care provider for services rendered and then seeks reimbursement from their
insurance company. Under these plans, patients have their choice of health care
providers, the plan pays for full service or a portion thereof, and the insurance
company has no other relationship to the provider. Id.
11 Id. at 10-11. The middle and upper classes were able to purchase indemnity
health insurance such as Blue Cross Blue Shield and many employers began offering
health insurance plans as an alternative to wage increases. Id. at 11. This resulted in a
rise of private health insurance from 50.3% of the total population insured privately in
1950 to 81.1% of the total population insured privately in 1980. ROSENBLATT ET AL.,
supra note 2, at 12 (citing Randall R. Bovbjerg et al., U.S. Health Care Coverage and
Costs: Historical Development and Choices for the 1990s, 21 J.L. MED. & ETHICS 141,
144, tbl. 2 (1993), reprinted with permission from the American Society of Law,
Medicine & Ethics; drawing on Health Insurance Association of America, Source Book
of Health Insurance Data, Washington, DC: HIAA, 25, tbl. 2.2 (1992)); Department of
Commerce Statistical Abstract of the United States, Washington, DC: U.S. Government
Printing Office, 8 tbl. 2 (1992).
12 ROSENBLATT ET AL., supra note 2, at 14, FABRIKANT ET AL., supra note 8, at
2002]
ERISA PREEMPTION
1225
This federal legislation coupled with advances in expensive
health care technology led to an enormous rise in national
health care spending.13 This set the stage for the emergence of
managed care.
Managed care is a framework of financing and
organizing health care.14 The goal of managed care is to
decrease costs by exercising more direct control over the
provision of health care.15 Although managed care may have
been a necessary response to the increase in health care
spending, it has significantly affected individual health care.
For example, in a managed care system a patient seeking
health care usually is limited to a select number of
participating physicians.16 Almost all MCOs today limit a
patient’s use of doctors to a selected group of physicians called
participating physicians/providers. Although some MCOs do
give patients the option to use a physician of their own choice,
this option usually results in a penalty of higher prices to the
insured. Additionally, in most MCOs, the participating
physician agrees to follow certain treatment guidelines adopted
by the MCO.17 These guidelines are established in order to try
to contain treatment costs. The guidelines usually set the
appropriate medical treatment based on the patient’s
diagnosis. Physicians are usually contractually bound to follow
§102(2). Medicare, Title 18 of the Social Security Act, provides federal hospitalization
and medical coverage for persons over sixty-five and Medicaid, Title 19 of the Social
Security Act, provides federal matching funds for state medical assistance programs
for the poor.
13 ROSENBLATT ET AL., supra note 2, at 16-17. In 1960 the health care share of
the Gross National Product (“GNP”) was 5.3% while in 1990 it rose to 12.2%. Id. at 17,
tbl. 2 (citing Bovbjerg et al., supra note 11, at 142, tbl. 1); Sally T. Burner et al.,
National Health Expenditures Projections through 2030, 14 HEALTH CARE FINANCING
REV . 1, tbls. 3, 4, and 7 (1992).
14 ROSENBLATT ET AL., supra note 2, at 19; Jensen, supra note 2, at 1349-50;
Vickie Yates Brown, Managed Care at the Crossroads: Can Managed Care
Organizations Survive Government Regulation?, 7 ANNALS HEALTH L. 25, 27-28 (1998);
Bearden, supra note 2, at 289.
15 ROSENBLATT ET AL., supra note 2, at 20. The function of insurance and
delivery of health services are integrated into a single corporate entity that both
insures groups and delivers covered benefits through a defined network of
participating providers. Id at 19.
16 See id.
17 See id. at 20; Susan O. Scheutzow, A Framework for Analysis of ERISA
Preemption in Suits Against Health Plans and a Call for Reform, 11 J. L. & HEALTH
195, 200 (1996-97); James A. Duffy, HMO Doctors as ERISA Fiduciaries: A Bankruptcy
Perspective, 8 AM . BANKR. INST. L. REV . 125, 128-29 (2000).
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these guidelines and thus must seek approval from the MCO if
a different course of treatment is believed to be necessary.
Thus, individual health care in a managed care system is
affected by giving the patient limited options in physician
selection and requiring physicians to follow cost-containing
guidelines. Since managed care is on the rise,18 this effect is a
concern for many Americans.
II.
ERISA PREEMPTION
A.
Supreme Court’s Narrowing of ERISA Preemption
Congress enacted ERISA primarily to protect
employees’ pensions.19 Congress was concerned with a system
of unregulated employee pensions which often resulted in
persistent underfunding. If major industries went into
economic decline, such as the railroads in the 1930s and the
automobile and steel industries in the 1960s and 1970s, many
companies would not be able to pay promised pensions. In
addition, pre-ERISA pension plan assets were supposed to be
administered in trust for the benefit of employees, but because
of the lack of effective state and federal law remedies, many
pension assets were being utilized to benefit companies. This
problem affected health benefits as well as pension plans.20
ERISA has also had a marked effect on health
insurance. Since ERISA applies to an employee benefit plan
maintained by “any employe r engaged in commerce,”21 it
18 The percentage of the American population covered by private indemnity
health insurance has fallen for the first time in fifty years, from 81.1 % in 1980 to
71.6% in 1990. ROSENBLATT ET AL., supra note 2, at 20. This drop in coverage has been
caused by a combination of corporate layoffs and a shift to part time workers without
benefits, a growing number of companies dropping health care benefits, the rising cost
of individual policies, and the insurance companies’ attempt to cut costs by excluding
people with certain pre-existing conditions. Id.
19 Id. at 159; Duffy, supra note 17, at 132; Bryron Done, Health Care Reform
and ERISA Preemption: Can the States Adopt Aspects of Germany’s Health Care
System to Achieve Universal Access and Cost Containment?, 18 HASTINGS INT’L &
COMP. L. REV. 745, 757-58 (1995).
20 ROSENBLATT ET AL., supra note 2, at 159.
21 29 U.S.C. § 1003(a)(1).
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ERISA PREEMPTION
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reaches almost all private employers who provide health
insurance for their employees. Thus, ERISA affects many
Americans’ health insurance plans.
ERISA affects health insurance plans in two major
ways. First, § 514(a) contains one of the most sweeping
provisions preempting state law ever enacted in a federal
statute,22 and the ERISA remedies provision, § 502, has been
interpreted by the Supreme Court as preempting any claim
under an ERISA plan that falls within the scope of the
remedies provision.23 Second, ERISA’s remedies are
significantly more limited than remedies available under state
laws.24 As a result, ERISA has been interpreted as preempting
much of state contract, insurance, and tort law which has left
many employees and their families without adequate redress
for perceived wrongdoing.25
In accordance with Supreme Court precedent stating
that a federal law’s preemptive control must be interpreted to
reflect Congress’ intent in enacting that statute,26 ERISA
preemption under § 514 has been interpreted broadly to follow
Congress’ intent to provide uniform regulation and supervision
of employee benefit plans. The statute provides that ERISA
“shall supercede any and all State laws insofar as they . . .
relate to any employee benefit plan.”27 In Shaw v. Delta Air
Lines, Inc.,28 the Supreme Court set forth the sweeping effect of
ERISA preemption. The plaintiff employers challenged two
New York state laws, as being preempted by ERISA, that dealt
with discrimination in employee benefit plans on the basis of
pregnancy and the provision of sick-leave benefits to pregnant
22
ROSENBLATT ET AL., supra note 2, at 160.
See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) (holding Congress
intended ERISA’s civil enforcement scheme to be the exclusive remedies available to
ERISA beneficiaries).
24 ROSENBLATT ET AL., supra note 2, at 161. See infra Section II.B. discussing
the inadequacies of ERISA remedies.
25 ROSENBLATT ET AL., supra note 2, at 160-61. For example, once a court has
found a tort claim against an MCO preempted, claimants must pursue their grievance
under ERISA’s civil remedies provisions. Although one provision allows claimants to
enforce benefits due under the plan, this is an inadequate remedy for a claimant who
has already been injured by the denial of such benefit.
26 Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983); Fid. Fed. Sav. & Loan
Ass’n v. de la Cuesta, 458 U.S. 141 (1982); Jones v. Rath Packing Co., 430 U.S. 519
(1977).
27 29 U.S.C. § 1144(a).
28 463 U.S. 85 (1983).
23
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employees.29 The Court stated that the issue with ERISA
preemption is whether the state laws “relate to” employee
benefit plans subject to ERISA regulation.30 The Court defined
“relate to” broadly, holding that “a law ‘relates to’ an employee
benefit plan, in the normal sense of the phrase, if it has a
connection with or reference to such a plan.”31 In support of
this broad interpretation, the Court referred to the legislative
history of ERISA.32 The Court observed that the bill originally
contained a more limited preemption clause but Congress had
chosen instead to adopt the present language to avoid the
threat of conflicting and inconsistent state laws.33 Therefore,
the Supreme Court initially embraced a broad ERISA
preemptive effect because of its interpretation of Congress’
intent.
29
Id. at 88.
Id. at 96. ERISA § 514(a) provides:
Except as provided in subsection (b) of this section, the provisions of
this title and title IV shall supersede any and all State laws insofar as
they may now or hereafter relate to any employee benefit plan
described in section 4(a) and not exempt under section 4(b). The term
“State law” includes all laws, decisions, rules, regulations, or other
State action having the effect of law, of any State. The term “State”
includes a State, any political subdivisions thereof, or any agency or
instrumentality of either, which purports to regulate, directly or
indirectly, the terms and conditions of employee benefit plans covered
by this title.
29 U.S.C. § 514(c)(1)-(2).
31 Shaw, 463 U.S. at 96-97.
32 Id. at 98-99.
33 Id. Statements by the bill’s sponsors stressed the breadth of federal
preemption. Representative Dent stated:
Finally, I wish to make note of what is to many the crowning
achievement of this legislation, the reservation to Federal authority
the sole power to regulate the field of employee benefit plans. With the
preemption of the field, we round out the protection afforded
participants by eliminating the threat of conflicting and inconsistent
State and local regulation.
120 CONG. REC. 29,197 (1974) (quoted in Shaw , 463 U.S. at 99). Senator Williams
echoed these sentiments:
It should be stressed that with the narrow exceptions specified in the
bill, the substantive and enforcement provisions of the conference
substitute are intended to preempt the field for Federal regulations,
thus eliminating the threat of conflicting or inconsistent State and
local regulation of employee benefit plans. This principle is intended
to apply in its broadest sense to all actions of State or local
governments, or any instrumentality thereof, which have the force or
effect of law.
Id. at 29,933 (quoted in Shaw , 463 U.S. at 99).
30
2002]
ERISA PREEMPTION
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However, in a recent trilogy of cases, the Supreme
Court has retreated from such a broad reading of “relate to”
and has thus narrowed ERISA’s preemptive effect.34 First, in
New York State Conference of Blue Cross & Blue Shield Plans
v. Travelers Ins. Co., the Supreme Court held that a New York
statute imposing surcharges on hospital rates for patients
covered by a commercial insurer did not “relate to” employee
benefit plans under ERISA and thus was not preempted.35 In
analyzing the preemption challenge, the Court stated that “[i]f
‘relate to’ were taken to extend to the furthest stretch of
indeterminacy, then for all practical purposes preemption
would never run its course.”36 Rather than using a specific
definition of “relate to,” the Travelers Court looked to the
objectives of ERISA to define the scope of the state law that
would survive preemption.37 Again, the Court stated that
Congress’ intent in enacting ERISA was to establish a uniform
body of benefits law38 in order to minimize the burdens of
complying with conflicting state regulations.39 The Court then
found that the surcharges only imposed an indirect economic
influence on the administrators of commercial insurers by
increasing hospital costs, but did not bind them to any
particular choice of administration.40 Such an indirect
economic influence did not preclude a health insurer from
offering a uniform interstate benefit pac kage to employers
because an insurer offering health plans to employers in
different states, including New York, could still establish one
plan. The statute would only affect the cost of the plan to
employers in New York. The insurer could still offer the same
34 De Bouno v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806 (1997);
Cal. Div. of Labor Standards Enforcement v. Dillingham Const., N.A., 519 U.S. 316
(1997); N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,
514 U.S. 645 (1995) [hereinafter Travelers]; see also Corporate Health Ins., Inc. v. Tex.
Dep’t of Ins., 215 F.3d 526 (5th Cir. 2000) (discussing the trilogy of Supreme Court
preemption cases).
35 Travelers, 514 U.S. at 654-68.
36 Id. at 655.
37 Id. at 656. The Travelers Court specifically stated that the definition
of “connection with” set out in Shaw and the “relate to” text of the ERISA statute
would be unhelpful in defining the key term. Id.
38 Benefits laws are state and federal laws that govern the management of
benefits gained by employees through their employment.
39 Travelers, 514 U.S. at 656 (citing Ingersoll-Rand Co. v. McClendon, 498
U.S. 133, 142 (1990)).
40 Id. at 659.
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plan, albeit at a higher cost, outside New York state.41 The
Court realized that if ERISA’s preemptive clause was read too
broadly, it would supercede all state laws affecting the cost of
health insurance on the theory that those state laws indirectly
relate to ERISA plans.42 This broad reading would eliminate
the limiting provision of “relate to.”43
Although the Court states that a uniform interstate
benefits plan is possible, the Court disregards one of the
objectives of ERISA mentioned earlier in the opinion—
minimizing the “financial burden of complying with conflicting
directives among States.”44 A New York commercial insurance
plan will inevitably have to charge its policyholders a higher
premium given the hospital surcharge. If a New York
commercial insurer wishes to provide an interstate-uniform
policy, policyholders in all other states now face a higher
premium because of the New York surcharges. Although New
York voters may have supported the surcharges, policyholders
in all other states with New York commercial carriers are now
subject to its effects. As a result of unwarranted premium
increases, many policyholders may elect to pursue intrastate
insurers who would not be subjected to premium increases
resulting from the New York surcharges. Thus, an interstate
commercial insurer is facing a financial burden through
conflicting state laws—one of the objectives that Congress
sought to minimize by enacting ERISA.
The second Supreme Court case in the trilogy is
California Division of Labor Standards Enforcement v.
Dillingham Construction, N.A., Inc.45 The plaintiff challenged
California’s prevailing wage law,46 which required a contractor
on a public works project to pay its workers the prevailing
wage, with an exception that permitted a contractor to pay a
lower wage to workers participating in a state-approved
apprenticeship program.47 The issue was whether the
preemption provision of ERISA supercedes the California law
in that the law prohibits payment of the apprentice wage to an
41
Id. at 660.
Id. at 661.
43 Id.
44 Travelers, 514 U.S. at 656 (quoting McClendon, 498 U.S. at 142).
45 519 U.S. 316.
46 CAL. LAB. CODE ANN. § 1771 (West 1989).
47 Dillingham, 519 U.S. at 319.
42
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ERISA PREEMPTION
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apprentice trained in an unapproved program. The Court found
that the prevailing wage statute did not bind ERISA plans, but
provided economic incentive to comport with State
requirements.48 Since no apprentice program is required to
meet California standards, the economic incentive to comport
with State requirements is that conforming apprentice
programs can provide apprentices who can work at a lower
wage. The Court concluded that the relationship between the
California law and ERISA plans was too tenuous to allow
ERISA preemption.49 Again, the Court recognized the need for
some limits to ERISA preemption of state laws.
The final case in the trilogy is De Buono v. NYSA-ILA
Medical and Clinical Services Fund.50 The Court held that New
York’s gross receipt tax on the income of medical centers
operated by ERISA funds was not preempted.51 Respondents,
trustees of a medical fund which administers a welfare benefit
plan, brought the action to enjoin future tax assessments.52
Specifically, since the New York law taxed the income of
medical centers, and respondents operated a medical center
funded exclusively from funds generated from an employee
benefit plan, the respondents alleged that the New York tax
assessment is a state law that “relates to” a benefit plan under
ERISA and is therefore preempted.53 The Court started its
analysis by noting that the traditional police powers of the
State include regulation of health and safety.54 In addition, the
Court operated under a presumption that Congress did not
intend to supersede state law.55 Thus, the Court concluded that
respondents have a considerable burden to overcome.56 The
Court found that although the tax assessment imposes some
burden on the administration of ERISA plans because any law
that increases the cost of providing benefits to employees will
have an effect on ad ministration, that is not enough to render
48
Id. at 332.
Id. at 334.
50 520 U.S. 806.
51 Id. at 809.
52 Id. at 810.
53 Id.
54 Id. at 814.
55 De Buono, 520 U.S. at 813.
56 Id. at 814.
49
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the state law preempted.57 Here, as in Travelers, the Court
seems to depreciate one of Congress’ objectives in enacting
ERISA—minimizing the burden on the administration of
ERISA plans. An ERISA plan set up as a trust fund to
administer health care would certainly be burdened by the
imposition of a gross income tax. Nonetheless, the Court still
found that this does not relate to ERISA plans within the
meaning of the statute.58 Therefore, from this trilogy of recent
Supreme Court decisions it is evident that the Court has
narrowed ERISA’s § 514 preemption of state laws.
B.
ERISA Preemption of State Tort Law Claims Against
HMOs
As health care costs continue to grow in the United
States, so will managed care and its emphasis on cost
containment. When a health care provider and/or
administrator has such a goal, it often jeopardizes the quality
of care. Therefore, it is important that MCOs are not permitted
to sacrifice quality health care for profit. One way to help
ensure quality health care is to attach civil liability for
negligent decision making by MCO. However, the doctrine of
preemption poses a significant threat to the success of
plaintiffs because of the significant difference between the
damages recoverable in a state common law action and an
action under ERISA.59 Although the above trilogy illustrates
the Court’s trend toward narrowing ERISA’s § 514 preemption,
the Supreme Court has yet to address the question of ERISA
preemption of state common law claims against MCOs. A MCO
facing a tort action will likely assert that the claim seeks to
recover benefits due under an ERISA plan. Since ERISA § 502
encompasses such an action, it may be preempted.
Section 502 of ERISA provides for six types of civil
actions that may be brought to enforce the Act.60 Although
57
Id.
Id. at 816.
59 See JOHN K. DI MUGNO & PAUL E.B. G LAD, CALIFORNIA INSURANCE
HANDBOOK § 29.01 (2000).
60 Section 502(a) in full reads:
A civil action may be brought—
(1) by a participant or beneficiary—
58
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ERISA PREEMPTION
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there are a “wide array of measures”61 for ERISA participants
to enforce their rights under a plan, none of these measures
provide for extra-contractual damages. The Supreme Court in
both Massachusetts Mutual Life Insurance Co. v. Russel62 and
Mertens v. Hewitt Associates63 limited a claimant’s recovery to
policy proceeds.64 For example, in Massachusetts Mutual Life
Insurance, the Court held that a claimant suing under ERISA
could not recover extra-contractual or punitive damages for
improper benefits claim processing.65 These decisions
effectively foreclose the possibility of extra-contractual
remedies under ERISA.66
As a result of these limited remedy provisions, insurers
offering ERISA health plans have a perverse incentive to deny
coverage or adopt policies limiting coverage. For example, since
recovery under ERISA is constrained to the benefits contract,
claimants are limited to enforcing rights that are specially
provided under their plan. This allows an HMO to greatly limit
(A) for the relief provided for in subsection (c) of this section, or
(B) to recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his rights
to future benefits un der the terms of the plan;
(2) by the Secretary, or by a participant, beneficiary or fiduciary for
appropriate relief under section 1109 of this title;
(3) by a participant, beneficiary, or fiduciary
(A) to enjoin any act or practice which violates any provision of this
subchapter or the terms of the plan, or
(B) to obtain other appropriate equitable relief (i) to redress such
violations or (ii) to enforce any provisions of this subchapter or the
terms of the plan;
(4) by the Secretary, or by a participant, or beneficiary for appropriate
relief in the case of a violation of [section] 1025(c) of this title;
(5) except as otherwise provided in subsection (b) of this section, by
the Secre tary to enjoin any act or practice which violates any provision
of this subcha pter, or
(B) to obtain other appropriate equitable relief (i) to redress such
violation or (ii) to enforce any provision of this subchapter;
(6) by the Secretary to collect any civil penalty under subsection (c)(2)
or (i) or (l ) of this section.
29 U.S.C. § 1132(a) (1988).
61 Mass. Mut. Life Ins. Co. v. Russel, 473 U.S. 134, 148 (1985) (Brennan, J.,
concurring) (citing as examples, an action to recover benefits due, enforce rights under
a plan, or clarify future benefits under plan terms).
62 473 U.S. at 148.
63 508 U.S. 248 (1993).
64 See DI MUGNO & G LAD, supra note 58.
65 473 U.S. at 148.
66 See DI MUGNO & G LAD, supra note 58.
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the relief claimants may seek by drafting plans that establish
guidelines and/or policies limiting the medical treatments that
the entity will reimburse. If a coverage decision or policy is at
minimum que stionable, then an HMO committed to contai n
costs may deny the claim or adopt the policy without the fear of
liability for tort damages.67 Since a claimant can only recover
under the contract, an HMO would only be responsible for the
cost of the medical treatment that it refused to reimburse.68 In
this way an HMO really cannot lose by initially limiting
treatments because the HMO can only be held liable for
medical care sought. If policyholders’ common law tort claims
were preempted by § 504 of ERISA, recovery for injuries
resulting from a denial of benefits or the negligent adoption of
a policy limiting treatment would be greatly diminished. Thus,
the one means to effectively protect a patient from the direct
negligence of HMOs is to allow patients to bring state tort law
direct liability claims against HMOs for their negligence.
In a series of cases, the Third Circuit has offered a
glimmer of hope to the dilemma faced by HMO beneficiaries
seeking to hold HMOs accountable. First, in Dukes v. U.S.
Healthcare Inc.,69 the plaintiffs sued U.S. Healthcare, their
HMO, for medical malpractice. In the first action, plaintiff
Celicia Dukes brought a medical malpractice action under
Pennsylvania state law’s ostensible agency theory because her
husband Darryl died after a hospital refused to perform a
physician-ordered blood test.70 In the second action, plaintiffs
Ronald and Linda Visconti alleged that Linda’s treating
physician ignored her symptoms of preeclampsia, which led to
67 It seems likely that an HMO offering a plan under ERISA would not deny
all questionable claims because of market competition. Although all HMOs emphasize
cost-cutting techniques and profit, an HMO that denied too many questionable claims
would certainly upset policyholders. Such dissatisfaction would likely cause the
employer to offer another insurer or encourage policyholders to switch to another plan
if multiple plans were offered. These market factors would likely curb some
unwarranted denials, but not all.
68 Section 503 of ERISA does provide that the court may award the claimant
attorney’s fees but this is much less threatening than facing a potential jury verdict for
a tort claim. 29 U.S.C. §1132 (g)(1). In addition, the court is not required to award
attorney’s fees at all. Even if attorney’s fees were awarded, the number of claimants
who would hire an attorney to sue an HMO with only the hope of recovering the cost of
treatment and the possibility of an attorney fee award would surely be small.
69 57 F.3d 350 (3d Cir. 1995).
70 Id. at 352.
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ERISA PREEMPTION
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the stillbirth of their child.71 They sued U.S. Healthcare under
direct negligence theory claiming that the HMO was negligent
in the selection and supervision of their physician.72 The court
drew an important distinction between seeking recovery for
benefits denied under an ERISA plan and claiming damages
for the poor quality of care received.73 The court concluded that
both plaintiffs were claiming the latter, for which an HMO may
be liable under agency or negligence principles.74 The Third
Circuit reasoned that § 502(a)(1)(B) of ERISA does not mention
anything concerning the quality of benefits received.75 Thus,
the plaintiffs’ claims were not preempted by ERISA as seeking
to enforce an ERISA remedy.76
In the second case, In re U.S. Healthcare Inc.,77 the
plaintiff brought a state medical malpractice claim against her
HMO, U.S. Healthcare, alleging direct and vicarious liability.78
The claim was for damages arising from the death of the
plaintiff’s newborn baby.79 The complaint alleged that after the
plaintiff gave birth, Dr. Nemeh80 discharged the mother and
child after twenty-four hours under the H MO’s pre-certification
discharge policy for newborns.81 This policy required that
newborns be discharged twenty-four hours after birth unless
the treating physician obtained approval (pre-certification)
from the provider for a longer stay. One day post-discharge, the
plaintiff noticed that the baby was ill and contacted Dr.
Nemeh, who did not advise her to bring the baby back to the
hospital.82 The plaintiff also contacted U.S. Healthcare and
requested an in-home visit by a pediatric nurse, which was not
provided. The plaintiff’s child had contracted an undiagnosed
71
Id at 353.
Id.
73 Id. at 356-57.
74 Dukes, 57 F.3d at 357.
75 Id.
76 Id.
77 193 F.3d 151 (3d Cir. 1999).
78 Id. at 155. The plaintiffs also named as defendants: Kamilah Nemeh, M.D.,
the treating pediatrician, Kennedy Hospital, the hospital where the plaintiff’s child
was born, and The Health Maintenance Organization of New Jersey, Inc., a subsidiary
of U.S. Healthcare, Inc. Id.
79 Id.
80 Dr. Nemeh is an independent health care provider contracting with U.S.
Healthcare. Id. at 156.
81 U.S. Healthcare, 193 F.3d at 156.
82 Id.
72
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strep infection that developed into meningitis; the baby died
that same day.83
The plaintiff’s complaints against U.S. Healthcare
included direct liability for their adoption of the twenty-four
hour, pre-certification discharge policy.84 U.S Healthcare
contended that these claims were preempted by ERISA in that
they sought recovery under state law for a denial of benefits
under an ERISA plan. Following their previous decision in
Dukes, the Third Circuit noted the distinction between claims
directed to the quality of benefits provided, which are not
preempted, and claims that a plan erroneously withheld
benefits, which are completely preempted by ERISA.85 In
addition, the court distinguished between an HMO that acts
solely as a benefits administrator and an HMO that acts as a
health care provider by arranging for and providing medical
treatment.86 The Court held that the HMO’s activity as a
health care provider subjected the HMO to a state’s standard of
care.87 Because the court found that the defendant HMO
essentially made a medical determination of the appropriate
level of care when it adopted the twenty-four hour discharge
policy,88 the Court held that this was a claim involving the
quality of care, which was not preempted by ERISA.89
In 2000, the Third Circuit reinforced the distinction
between actions relating to the quality of care given and those
involving claims for denying benefits. In Lazorko v.
Pennsylvania Hospital,90 Jonathon Lazorko alleged that the
HMO U.S. Healthcare was directly and vicariously liable under
83
Id.
Id. at 156-57. Count One alleges that the policy “encouraged, pressured,
and/or directly or indirectly required” the twenty-four hour pre-certification discharge
used by the doctor and hospital. Id. at 156 (citation omitted). Count One also include a
claim against U.S. Healthcare for vicarious liability for the negligence of its alleged
agents Dr. Nemeh and Kennedy Hospital in their premature discharge of the newborn.
U.S. Healthcare, 193 F.3d at 156. Count Five alleges that U.S. Healthcare negligently
adopted the policy of hospital utilization that discouraged physicians from admitting
infants after the discharge. Id. 157. Count Six alleges that after the discharge, the
infant’s condition required a home visit by a pediatric nurse. Id.
85 Id. at 161-62. Once an action is completely preempted by ERISA, a claimant
can only seek relief under the benefits contract.
86 Id. at 162.
87 U.S. Healthcare, 193 F.3d at 162.
88 Id. at 163.
89 Id. at 163.
90 237 F.3d 242 (3d Cir. 2000).
84
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ERISA PREEMPTION
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state law for his wife’s death. Lazorko claimed that the HMO
imposed financial disincentives on his wife’s physician which
discouraged the doctor from recommending additional
necessary treatment.91 In holding that these claims were not
preempted by ERISA, the court reasoned that challenging an
HMO’s financial incentive structure could relate to “the
soundness of a medical decision by a health care provider
rather than the administration of benefits under an ERISA
plan.”92 As such, decisions to deny a request for additional
treatment could be a claim about the quality of care given
rather than the quantity of health benefits provided.93
The Third Circuit has recognized the need for holding
HMOs accountable under state law. Giving a beneficiary a
cause of action for challenging either the quality of benefits
received or an HMO policy enables policyholders to seek
recovery for HMO negligence and provides sound HMO
regulation. Facing potential liability for policy decisions will
certainly cause HMOs to more carefully research guidelines
and benefits offered. Although pre-certification guidelines are
an important tool to help contain the cost of health care, it is
imperative that these guidelines are thoroughly researched to
maintain high-quality health care delivery. The Third Circuit’s
decisions in Dukes, U.S Healthcare, and Lazorko reflect a
sensible balance between cost containment while allowing
individuals a viable state law remedy.94
However, the Fifth, Sixth, and Eighth Circuits have
been less willing to allow tort law claims to proceed against
HMOs. The Fifth Circuit, in Corcoran v. United Healthcare,
Inc.,95 held that ERISA preempted the plaintiff’s wrongful
death claim against her HMO, U.S. Healthc are. 96 Plaintiff
sued her HMO when she was denied temporary disability
91
Id. at 246.
Id. at 249.
93 Id .
94 The Third Circuit in Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266 (3d
Cir. 2001), recently used the quality/quantity approach and found that a challenge to
an HMO’s delay in the approval of a health treatment was preempted by ERISA. The
court reasoned that underlying the delay was the HMO’s decision to require
beneficiaries to seek approval of out of network physicians. Id. at 273. This HMO policy
related to the administration of benefits, rather than the quality of benefits received,
and thus is distinguished from Dukes, U.S. Healthcare, and Lazorko. Id. at 272-73.
95 965 F.2d 1321 (5th Cir. 1992).
96 Id.
92
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benefits.97 Although her treating physician ordered complete
bed rest for the remainder of her pregnancy, instead of
providing hospitalization in accordance with the treating
physician’s order,98 U.S. Healthcare only authorized in-home
nursing care for ten hours per day.99 During a period without
nursing care, the plaintiff’s fetus went into distress and died.100
The court reasoned that even though U.S. Healthcare was
making a medical decision concerning the plaintiff’s health
care, this decision had been made in the context of determining
benefits under an ERISA plan.101 Therefore, ERISA preempted
her wrongful death claim.102
In Tolton v. American Biodyne, Inc., the Sixth Circuit
also held that ERISA preempted a state law claim for wrongful
death based on an HMO’s denial of benefits.103 In Tolton, the
administrator of the deceased patient’s estate brought a
wrongful death action against the decedent’s HMO.104 The
decedent sought treatment from the HMO’s psychologist on
numerous occasions for his suicidal thoughts, but the HMO
denied psychiatric benefits.105 The decedent later committed
suicide.106 The court found that because the wrongful death
claim arose from the HMO’s refusal to provide psychiatric
benefits, the claim “relate[d] to” the benefit plan and was thus
preempted by ERISA.107
In addition, the Eighth Circuit held in Thompson v.
Gencare Health Systems, Inc108 that ERISA preempted
plaintiff’s medical malpractice claim against the HMO,
Gencare Health Systems.109 The plaintiff alleged that the HMO
was negligent in its refusal to perform either high-dose
chemotherapy or a bone marrow transplant to treat his wife’s
97
Id. at 1322.
Id. at 1322-24.
99 Id. at 1324.
100 Corcoran, 965 F.2d at 1324.
101 Id . at 1331.
102 Id.
103 48 F.3d 937, 943 (6th Cir. 1995).
104 Id at 939.
105 Id. at 939-40.
106 Id. at 940.
107 Id. at 943.
108 202 F.3d 1072 (8th Cir. 2000).
109 Id. at 1073.
98
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cancer.110 The court reasoned that because this claim was a
common law action for failing to provide benefits under an
ERISA plan, it was preempted by ERISA.111
While the decisions of the Fifth, Sixth, and Eight
Circuits lead to disquieting results, the Third Circuit’s
acceptance of actions challenging an HMO’s benefits policy is
the best approach for regulating HMOs. If HMOs faced
potential state tort liability for its policies on benefits
decisions, HMOs would feel compelled to choose their policies
with care and make proper decisions relating to plan benefits.
This would better protect bene ficiaries and ensure quality
health care. However, if claims are preempted by ERISA, an
HMO can adopt cost-cutting policies that would deny
potentially necessary medical treatment recommended by a
skilled practitioner. If the recommended treatment is truly
necessary, the HMO can avoid a negligence claim through
ERISA preemption. The beneficiary’s sole recourse is the ofteninadequate ERISA civil enforcement provisions. Without a tort
claim challenging HMO policy, beneficiaries are left in a
precarious position—they will either be treated by a thorough,
competent physician whose medical decision may face
administrative denial with little recourse,112 or have
recourse
through state tort law but only if their treating physician’s
treatment caused the alleged injury.113 These are not desirable
alternatives.
Additionally, the Supreme Court’s decision in Pegram v.
Herdich114 lends support to the Third Circuit’s reasoning.115
Although Pegram involved the question of when an HMO owes
a fiduciary duty to ERISA plan members, the Court’s approach
is useful in the ERISA preemption context. The Supreme Court
110
Id. The action was brought by Linda Thompson’s husband.
Id. at 1073.
112 This is the situation under the Fifth, Sixth, and Eighth Circuits’ approach.
113 This action would then be against the treating physician for medical
malpractice thus avoiding the problem of ERISA preemption.
114 530 U.S. 211 (2000).
115 See Lazorko , 237 F.3d at 273; Pryzbowski, 245 F.3d at 273.
111
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distinguished between HMOs making “eligibility decisions,”
which are decisions concerning “the plan’s coverage of a
particular condition or medical procedure,” and “treatment
decisions,” which entail “diagnosing and treating a patient’s
condition.”116 The former invokes a fiduciary duty under ERISA
while the latter does not.117 This terminology resembles the
Third Circuit’s quantity/quality distinction for ERISA
preemption where quantity decisions refer to HMO decisions
determining what benefits are appropriate while quality
decisions refer to an HMO’s role in arranging medical
treatment. “Eligibility decisions” involve the coverage decisions
in the administration of an ERISA plan while “treatment
decisions” are more akin to actually providing health care to a
beneficiary. Thus, “eligibility decisions” closely resemble the
Third Circuit’s decisions about quantity while “treatment
decisions” are similar to decisions about the quality of medical
care. Just as treatment decisions do not invoke ERISA in the
fiduciary duty context, decisions concerning the quality of
medical care should not invoke ERISA preemption.
Therefore, the Supreme Court should follow the
decisions of the Third Circuit and allow state tort law claims to
survive ERISA preemption that challenge HMO decisions
effecting patient treatment because these claims do not fall
within the remedies of ERISA’s § 502.
III.
FCLAA PREEMPTION AS A GUIDE TO ERISA PREEMPTION
A.
Similarities Between the Tobacco Industry and
Managed Care Entities
Tobacco companies and managed care organizations
share an important similarity in that their actions have a
direct impact on American health. Numerous actions of the
tobacco industry have had a negative impact on public health.
For example, early tobacco advertising campaigns promoted
smoking as a healthy activity118 and tobacco manufacturers
116
Pegram, 120 S. Ct. at 2154; Pryzbowski, 245 F.3d at 273.
Pegram, 120 S. Ct. at 2155.
118 See James C. Thornton, The Liability of Cigarette Manufacturers for Lung
117
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ERISA PREEMPTION
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include nicotine, an addictive substance, in their products.
Similarly, managed care decisions affect public health. The
denial of claims, the exclusion of certain conditions from
coverage, and the selection of providers directly impact the
course of treatment and thus the health of individuals.
The fact that the decisions of both industries affect
public health should influence a court’s acceptance of claims
against the industries for individual harm stemming from such
decisions. Since both industries are aware that their decisions
directly affect public health,119 this awareness should also favor
making these entities accountable for their decisions.
In addition, both the tobacco industry and managed
care organizations are significantly governed by federal
statutes that share similar objectives. ERISA and the FCLAA
are similar because they reflect a balance between industry
regulation and the promotion of economic growth. ERISA was
enacted primarily to protect employees’ pensions.120 The
regulating aspect of ERISA lies in its stated purpose “to protect
employees by requiring disclosure and reporting, setting forth
standards of conduct for fiduciaries, requiring vesting of
benefits, setting minimum standards of funding, and requiring
plan termination insurance.”121 The aspect of ERISA that seeks
to promote economic growth can be found in the preemption
clause. By including ERISA’s preemption provision, Congress
also intended “to ensure that plans and plan sponsors would be
subject to a uniform body of benefits law; the goal was to
minimize the administrative and financial burden of complying
with conflicting directives among States.”122 This reflects
Congress’ intent to promote economic growth by minimizing
Cancer: An Analysis of the Federal Cigarette Labeling and Advertising Act and
Preemption of Strict Liability in Tort Against Cigarette Manufacturers,76 K Y. L.J. 569,
571 (1988).
119 It is common knowledge today that smoking directly affects individual
health. It is also clear that managed care entities are aware that wrongful denials of
care would adversely affect patient health because given the high cost of health care
today it is unlikely that a patient would be able to pay for the needed treatment that a
managed care organization wrongfully denied authorization for payment.
120 ROSENBLATT ET AL., supra note 2, at 159. See also supra text accompanying
note 20.
121 Kristen M. McCabe, The Texas Health Care Liability Act: Texas is the First
State to Listen to the Concerns of its Health Care Consumers, But How Much Has it
Heard? 16 J. CONTEMP. HEALTH L. & POL’Y 565, 571 (2000) (citation omitted).
122 Ingeroll-Rand, 498 U.S. at 142 (1990).
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the burdens to employers and insurers in setting up employee
benefit plans.
Similarly, the FCLAA reflects these dual goals of
industry regulation and the p romotion of economic growth. The
FCLAA was originally enacted in 1965 as a result of the
awareness that cigarette smoking posed a health threat.123 The
Act’s regulatory aspect can be found in its stated purpose to
adequately inform the public that cigarette smoking may be
hazardous to their health.124 However, Congress was also
concerned about promoting economic growth and protecting the
national economy; thus, FCLAA allows tobacco companies to
avoid the burdens of complying with different state-mandated
warning labels.125 In sum, ERISA and the FCLAA share the
same dual purposes of protecting individuals through federal
regulation and promoting the national economy through
federal preemption of conflicting state laws. Given that the
decisions of both the tobacco industry and managed care
entities directly impact public health and the Congressional
purposes in enacting ERISA and FCLAA are so similar, the
Court’s treatment of FCLAA preemption provides a useful
guide for viewing ERISA preemption of state tort law claims.
B.
The Supreme Court’s Treatment of FCLAA Preemption
Tobacco manufacturers have historically enjoyed civil
immunity from product liability.126 Since the 1950s, consumers
have been informed by the Surgeon General of the association
between cigarette smoking and lung cancer.127 As a result,
Congress enacted the FCLAA in 1965 to regulate the cigarette
123
Pennington v. Vistron, 876 F.2d 414, 417 (5th Cir. 1989).
15 U.S.C § 1331 (1982) (“It is the policy of Congress . . . to establish
a comprehensive Federal program to deal with cigarette labeling and advertising . . .
whereby: (1) The public may be adequately uninformed about any adverse health
effects of cigarette smoking.”).
125 Pennington, 876 F.2d at 417.
126 Thornton, supra note 116, at 570 (citation omitted).
127 Id. at 571 (citing Richard A. Wegman, Cigarettes and Health: A Legal
Analysis, 51 CORNELL L.Q. 678, 680 (1966)). See Jonathan Turley, A Crisis of Faith:
Tobacco and the Madisonian Democracy, 37 HARV . J. ON LEGIS. 433, 440 (2000).
124
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ERISA PREEMPTION
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industry rather than prohibit smoking altogether.128 The
FCLAA requires tobacco manufacturers to post one of several
specific labels on cigarette packages and advertisements
warning of the health risks associated with smoking.129 Thus,
Congress assumed control of cigarette warnings and
advertising. In addition, the FCLAA included a preemption
provisions providing that “no statement relating to smoking
and health,” other than required by the FCLAA, “shall be
required on any cigarette package.”130Although Congress
explicitly prohibited state laws relating to cigarette warnings,
state common law damage actions concerning the adequacy of
these warnings ensued.131 The landmark decision, Cipollone v.
Liggett Group, Inc.,132 resolved this controversy.
In Cipollone, an action was brought against cigarette
manufacturers by the son of Rose Cipollone, who began
smoking in 1942 and died of lung cancer in 1984.133 The
petitioner claimed that the cigarette manufacturers breached
express warranties by failing to warn purchasers of the
hazards of smoking.134 The respondents’ defense was that the
FCLAA and its successor, the Public Health Cigarette Smoking
Act of 1969135 (“1969 Act”), preempted these state law claims.136
The Third Circuit held that a state law damage action
that challenged the propriety of a party’s actions with respect
to the advertising of cigarettes was preempted by the 1969
128 15 U.S.C. §§ 1331-1340 (1982); see also Thornton, supra note 116, at
571. Congress amended certain provisions of the 1965 Federal Cigarette Labeling and
Advertising Act by the Pub. Health Cigarette Smoking Act of 1969, Pub. L. No. 91-222,
84 Stat. 87 (1970), and again by the Comprehensive Smoking Education Act, Pub. L.
No. 98-474, 98 Stat. 2200 (1984). Id. at n.40.
129 See 15 U.S.C. § 1333 (1984).
130 15 U.S.C. § 1334(a) (1988).
131 Thornton, supra note 116, at 577.
132 505 U.S. 504 (1992).
133 Id. at 508
134 Id. In addition, he claimed fraudulent misrepresentation, failure to warn,
and conspiracy. Id.
135 Pub. L. No. 91-222, 84 Stat. 88 (1970) (codified as amended, 15 U.S.C. §§
1331–1340).
136 Id. at 508, 510.
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Act.137 On remand, the District Court, under the guide of the
Court of Appeals, found the claim of breach of express
warranty preempted.138 The Supreme Court’s decision marked
a significant change from the Court of Appeals decision
concerning FCLAA preemption. The Court held that with
respect to the 1965 FCLAA preemption provision, “Congress
spoke precisely and narrowly: ‘No statement relating to
smoking and health shall be required in the advertising of
[properly labeled] cigarettes.’ ”139 The Court reasoned that this
provision on its face merely preempted positive laws
mandating further cautionary statements at both the state and
federal level.140 In addition, the Court held that the preemption
provision must be read to include a presumption against the
preemption of state police power regulation.141 Therefore, the
plaintiff’s state common law claims were not preempted by the
FCLAA.142 However, the 1969 Act broadened the scope of
preemption.143 The Act’s preemption provision provides that:
“No requirement or prohibition based on smoking and health
shall be imposed under State law with respect to the
advertising or promotion of any cigarettes the packages of
which are labeled in conformity with the provisions of this
chapter.”144 Thus, the Court examined each of the plaintiff’s
common law claims and asked “whether the legal duty that is
the predicate of the common-law damages action constitutes a
‘requirement or prohibition based on smoking and health . . .
imposed under State law with respect to . . . advertising or
promotion.’ ”145
The most significant analysis, for the purpose of this
Note, is the claim of breach of express warranty146 because it
137
Cipollone v. Liggett Gr., Inc., 789 F.2d 181 (3d Cir. 1986).
Cipollone v. Liggett Gr., Inc., 649 F. Supp. 664 (D.N.J. 1986).
139 Cipollone, 505 U.S. at 518 (quoting the FCLAA § 5 (b)).
140 Id. at 518.
141 Id.
142 Id. at 519-20.
143 Cipollone, 505 U.S. at 520.
144 15 U.S.C. § 1334(b).
145 Cipollone, 505 U.S. at 524 (quoting 15 U.S.C. § 1334).
146 The claim of failure to warn and fraudulent misrepresentation by
neutralization of warnings were found to be preempted. Cipollone, 505 U.S. at 524,
527; see also Heather E. Klasing, Federal Law Does Not Preempt Failure to Warn
Claims by Nonsmokers: Why Big Tobacco May Get Burned, 24 U. DAYTON L. REV . 119
(1998). The claim of fraudulent misrepresentation by false representation of material
fact or concealment was held not to be preempted. Cipollone, 505 U.S. at 529. In
138
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ERISA PREEMPTION
1245
most resembles the claim of negligent adoption of benefits
policy by an HMO. In an action for breach of express warranty,
a plaintiff must allege a statement by the seller promising the
goods are all in a certain condition and that the goods do not
conform to the promised condition.147 In an action against an
HMO challenging the adoption of a benefits policy, a plaintiff
must allege that the adoption of the policy was negligent and
the damage sustained by the plaintiff was causally connected
to such adoption. The claims are similar because both are
grounded in state common law and are predicated on a
voluntarily action by the defendant entity. In order to be liable
for negligence of adoption of a benefits policy, an HMO must
first voluntarily adopt such a policy. Likewise, liability for
breach of express warranty stems from a manufacturer’s claim
that their product purports to be something. This claim is also
voluntary on the part of the manufacturer.
In Cipollone, the Supreme Court found that a
manufacturer’s liability for breach of express warranty would
not impose a requirement or prohibition based on state law
because the requirement is imposed by the warrantor itself.148
A common law remedy for a voluntarily taken, contractual
commitment does not impose a requirement under state law.149
Thus, the claim for breach of express warranty is not
preempted by the 1969 Act.150
Following the Cipollone decision, federal district courts
have allowed the breach of express warranty claim to survive
preemption. In Perez v. Brown & Williamson Tobacco Corp.,151
the Southern District of Texas found that the FCLAA did not
preempt the claim of breach of express warranty against
cigarette manufacturers because the claim was based on the
duty not to deceive rather than on duties based on smoking
and health.152 Similarly in Castano v. American Tobacco Co.,153
addition, the claim of conspiracy to misrepresent or conceal material facts was not
preempted. Id. at 530.
147 Klasing, supra note 146, at 130.
148 Cipollone, 505 U.S. at 525.
149 Id. at 526.
150 Id. at 527.
151 967 F. Supp. 920 (S.D. Tex. 1997).
152 Id. at 928. In contrast, the court found that the plaintiff’s claims of
conspiracy, fraud, and misrepresentation, and breach of implied warranties stem from
duties based on smoking and health and thus are preempted by the FCLAA.
153 870 F. Supp. 1425 (E.D. La. 1994).
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the Eastern District of Louisiana found that the claim of
breach of express warranty was not preempted by the FCLAA
for the reasons stated in Cipollone.154 These cases show that
after the Cipollone decision, the preemption defense was
sufficiently narrowed to allow recovery under the claim of
breach of express warranty against the tobacco industry.
As a result of the Supreme Court and other courts
allowing the claim of breach of express warranty to survive
FCLAA preemption, cigarette manufacturers may be held
directly liable for their breach. The Cipollone Court held that
since the duty that products conform to expressed warranties is
voluntarily assumed by the tobacco industry, it is not a
requirement imposed under state law.155 Likewise, a
negligently-drawn policy implemented voluntarily by an HMO
should not be preempted by ERISA. A negligence claim
challenging an HMO’s policy relates most directly to the
administration of the HMO, not to the employer’s benefits
plan. The effect on the plan stems from voluntary action taken
by the HMO, adopting a policy to limit benefits. This voluntary
action should result in HMO liability for negligence just as the
tobacco industry may be liable for its voluntary actions under
breach of express warranty.
CONCLUSION
Because of the prominence that managed care enjoys in
today’s health care system, many Americans are affected by its
emphasis on containing health care costs. Although cutting
health care cost may be warranted, negligently furthering this
goal is unacceptable. To prevent such negligence in benefits
decisions, HMOs must be held accountable for their actions.
Because the presently enacted ERISA statute does not provide
an effective remedy against HMO negligence, consumers
should be able to bring a state tort law claim against HMOs.
Although the Supreme Court has yet to face the
question of HMO liability for state tort law claims, its own
precedent in federal statutory preemption cases and decisions
of the Fifth Circuit provide a framework to allow such claims to
154
155
Id. at 1434.
Cipollone, 505 U.S. at 526.
2002]
ERISA PREEMPTION
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survive ERISA preemption. Furthermore, given the
similarities between the tobacco industry and managed care
entities, the Supreme Court’s decision to allow breach of
express warranty claims to survive FCLAA preemption
provides a useful guideline for allowing state tort law claims
against HMOs to survive ERISA preemption.
Furthermore, there are sound policy reasons for
allowing a state law tort claim against an HMO to survive
ERISA preemption. First, none of the purposes that Congress
was trying to accomplish with ERISA would be furthered by
preempting this claim. An HMO would be subject to the same
basic common law in all states—that of liability for injuries
caused by negligence. So when an HMO adopts a multi-state
policy, it should do so in compliance with a general standard of
care. Thus, an HMO would not be subject to conflicting state
laws, which was one of the policy considerations behind ERISA
preemption.
In addition, the purpose of protecting employees’ benefit
plans is furthered by allowing this cause of action. If HMOs are
not carefully adopting policies relating to their benefit plans,
then policyholders should be able to hold them liable. This will
encourage HMOs to more carefully draft policies and ensure
that money spent on benefit plans is providing quality health
care. Thus, the ERISA objective of protecting employee benefit
plans is better furthered by holding HMOs liable for
negligently adopting their policies.
John W. Schuch†
† B.S. in Nursing, Binghamton University, 1998; candidate for degree of Juris
Doctor, Brooklyn Law School, 2002.
COMMENTS
SEA HUNT, INC. v. THE UNIDENTIFIED
SHIPWRECKED VESSEL OR VESSELS: HOW THE
FOURTH CIRCUIT ROCKE D THE BOAT∗
INTRODUCTION
The mission: to locate a ship that plunged to the bottom
of the icy Atlantic over two centuries ago. Another day, another
week, another month, and still no hint of the shipwreck. The
odds of finding a needle in a haystack seem better. Suddenly, a
mechanical device capable of taking moving television pictures
illuminates the remains of the shipwreck as it drags slightly
above the ocean floor.
Immediately, in an effort to establish rights to the find,
the salvage company files the appropriate motions in a federal
district court. The court order gives the salvage company the
exclusive right to raise the wreckage and its cargo. Under the
agreement reached with the state with jurisdiction over the
shipwreck’s location, the salvage company and the state will
each take a percentage of the value of the items salvaged. Most
items will end up being sold or donated to museums for display
to the world. In the end, many will benefit: the salvage company will receive compensation for its services, the shipwreck
will be saved from the further destructive elements of the sea,
and a piece of history will be preserved for generations to come.
Suddenly, for the first time in history, the country who
∗
©2002 Kevin Berean. All Rights Reserved.
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owned the ship centuries ago, comes forward and asserts its
ownership to the shipwreck. The salvage company’s attorney
calms his client and says, “Don’t worry, the ship has been
abandoned by the country, so it no longer has an ownership
interest.” The attorney then adds, “We have the weight of authority on our side, and at the very least, you’ll be entitled to
compensation for the salvage services you rendered.” The
Fourth Circuit recently faced such an issue when it had to decide Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or
Vessels (“Sea Hunt III”).1
This Comment examines who holds title to historical,
untouched shipwrecks, and whether a salvor is entitled to a
salvage award for the time and mo ney spent locating and ultimately salvaging a shipwreck. Part I of this Comment discusses the two common law doctrines, the law of finds and the
law of salvage, which control conflicts surrounding historical
shipwrecks. Additionally, Part I presents an overview of the
Abandoned Shipwreck Act, legislation introduced in 1987 to
protect historic shipwrecks as cultural resources. Part II presents a detailed analysis of the Sea Hunt decisions. The facts of
the case are presented followed by the decisions of the district
court and the Fourth Circuit. Part III argues that the Fourth
Circuit’s conclusion that an implied abandonment standard is
improper under traditional admiralty law when an owner appears and asserts ownership to the shipwreck is misleading.
Further, Part III urges that Sea Hunt, Inc. was entitled to a
salvage award for the salvage services it rendered on the Spanish shipwreck the Juno. Finally, Part III answers the crucial
question remaining after the Fourth Circuit’s decision in Sea
Hunt III: whether Article X of the 1902 Treaty of Friendship
and General Relations between the United States and Spain
will preclude salvage awards for salvage services on sovereign
vessels of Spain.
1 221 F.3d 634 (4th Cir. 2000), cert. denied, 531 U.S. 1144 (2001) [hereinafter
Sea Hunt III].
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
I.
BACKGROUND
A.
The Jurisdiction of Shipwrecks
1251
The reach of the federal courts extends “to all Cases of
Admiralty and Maritime Jurisdiction.”2 This constitutional
provision was codified in the first Judiciary Act of 1789 and
since then the federal courts have retained jurisdiction over
admiralty and maritime cases.3 Federal court jurisdiction includes “maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel or thing is itself treated
as the offender and made the defendant by name or description
in order to enforce a lien.”4
The law of finds and the law of salvage are the primary
vehicles used by the courts to manage conflicts surrounding
historical shipwrecks.5 Although similar doctrines, the determination of whether the law of finds or the law of salvage governs the dispute is critical since each may produce differing
outcomes.6 Thus, some background on each of these doctrines is
necessary.
B.
Law of Finds
The law of finds in the maritime context can be traced
back as early as 18617 and is still used to decide many modern2
See California v. Deep Sea Research, Inc., 523 U.S. 491, 501 (1998) (quoting
U.S. CONST. art. III, § 2, cl. 1) [hereinafter Brother Jonathan III].
3 Id.
4 Id. (quoting Madruga v. Superior Court of Cal., County of San Diego, 346
U.S. 556, 560 (1954)).
5 See Fairport Int’l Exploration, Inc. v. The Shipwrecked Vessel, Captain Lawrence, 177 F.3d 491, 498 (6th Cir. 1999) [hereinafter Fairport III] (stating that under
maritime law, those who wish to raise sunken ships are governed by either the law of
salvage or the law of finds); see also Zych v. Unidentified, Wrecked & Abandoned Vessel, Believed to be SB “Lady Elgin,” 746 F. Supp. 1334, 1345 (N.D. Ill. 1990) [hereinafter Lady Elgin I] (explaining that the law of finds and the law of salvage are the significant elements of maritime law).
6 See Hener v. United States, 525 F. Supp. 350, 355-56 (S.D.N.Y. 1981).
7 See Eads v. Brazelton, 22 Ark. 499 (1861) (involving the salvaging rights
over the steamboat America, which sank in the Mississippi in 1827. The court stated:
“The finder of things that have never been appropriated, or that have been abandoned
by a former occupant, may take them into his possession as his own property; and the
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day cases involving historic shipwrecks.8 However, the longstanding principle of “finders keepers” can be found in the nonmaritime context as far back as 1722. 9 The common law doctrine of finds treats abandoned property as “returned to the
state of nature and thus equivalent to property, such as fish or
ocean plants, with no prior owner.”10 The first finder to lawfully take actual possession or control of the abandoned property acquires title to it.11 Merely searching for an abandoned
shipwreck, or even finding it, does not give the searcher any
rights.12 Any salvor is entitled to search an area for a wreck
and to attempt to reduce it to his or her possession, provided he
or she is not infringing the rights of other salvors.13 To gain
title to the shipwreck under the law of finds, the salvor must be
the first finder to: (1) demonstrate an intent to acquire the
property and take actual possession or control of it; and (2)
demonstrate that the property was abandoned.14 Each of these
requirements will be considered separately in turn.
The necessity to demonstrate possession was first exhibited in the 1861 case Eads v. Brazelton.15 In that case, Braze lton found a steamboat which had sank in the Mississippi River
in 1827.16 After locating the wreck, Brazelton marked trees on
the bank of the river and placed buoys over the wreck to indicate its location, with the intention of returning the next day to
salvage it.17 The next day Brazelton was unable to return to
the site to salvage the wreck.18 When he did return, he discovfinder of any thing casually lost is its rightful occupant against all but the real owner”).
8 See Columbus-America Discovery Gr. v. Atl. Mut. Ins. Co., 974 F.2d 450, 460
(4th Cir. 1992) (stating that the law of finds is being applied to abandoned shipwrecks);
see also Martha’s Vineyard Scuba Headquarters v. Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir. 1987) (holding that the salvor was entitled
to recovered shipwreck property under the law of finds).
9 See Armory v. Delamire, 93 Eng. Rep. 664 (K.B. 1722) (holding that a
chimney sweep who found a lost jewel had title superior to all except the true owner).
10 Hener, 525 F. Supp. at 354.
11 See Martha’s Vineyard Scuba Headquarters, 833 F.2d at 1065; Treasure
Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337
(5th Cir. 1978) [hereinafter Treasure Salvors I].
12 See Hener, 525 F. Supp. at 354.
13 See id.
14 See id. at 356; Columbus-America Discovery Group, 974 F.2d at 460.
15 22 Ark. 499 (1861).
16 See id. at 502.
17 See id.
18 See id.
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
1253
ered that a firm of wreckers, Eads & Nelson, had located the
wreck and had begun raising its cargo.19 Brazelton asserted
rights to the wreck but the court held that he never attained
possession of the wreck and was therefore not a finder.20 The
court reasoned that “[t]he occupation or possession of property
lost, abandoned or without an owner, must depend upon an
actual taking of the property and with the intent to reduce it to
possession.”21 The court stated that Brazelton’s
intention to possess was useless without detention of the property . .
. . [H]e was not a finder, in that he had not moved the wrecked property, or secured it; he had the intention of possessing it as owner,
but did not acquire its corporeal possession; to his desire to possess
there was not joined a prehension of the thing. 22
In addition to possession, abandonment of the property is also
required under the law of finds.23
There is a great deal of confusion among the courts as to
what constitutes an abandoned shipwreck, the second requirement under the law of finds.24 The principal area of disagreement among the circuits is whether the abandonment of a
shipwreck can be inferred from the passage of time or from the
owner’s inactivity.25 Courts have generally offered three methods of proof to resolve this conflict: (1) express renunciation of
ownership by the owner; (2) implication from an owner’s inaction; or (3) passage of time and the lack of an identifiable
owner.26 When salvors are unable to establish that the wreck
19
See id.
See Eads, 22 Ark. at 511.
21 Id. at 509.
22 Id. at 511.
23 See Martha’s Vineyard Scuba Headquarters, 833 F.2d at 1065; Treasure
Salvors I, 569 F.2d at 337.
24 Compare Fairport III, 177 F.3d at 499-501; Deep Sea Research, Inc. v. The
Brother Jonathan, 102 F.3d 379, 387-88 (9th Cir. 1997) [hereinafter Brother Jonathan
II]; and Martha’s Vineyard Scuba Headquarters, 833 F.2d at 1065 (all three cases held
that abandonment may be found when title to the shipwreck has been affirmatively
renounced or when circumstances gives rise to an inference of abandonment) with
Columbus-America Discovery Gr., 974 F.2d at 461 (holding that a finding of abando nment requires clear and convincing evidence of an express renunciation of ownership;
thus requiring express abandonment as opposed to implied abandonment).
25 See Fairport III, 177 F.3d at 499-501; Brother Jonathan II, 102 F.3d at 38788; Columbus-America Discovery Gr., 974 F.2d at 461; Martha’s Vineyard Scuba Headquarters, 833 F.2d at 1065.
26 See H. Peter Del Bianco, Jr., Note, Under Water Recovery Operations in Off20
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has been abandoned, they usually argue in the alternative that
they are entitled to a salvage award under the law of salvage.27
C.
Law of Salvage
Salvage is defined as “compensation allowed to persons
by whose assistance a ship or her cargo has been saved, in
whole or in part, from impending peril on the sea, or in recovering such property from actual loss, as in cases of shipwreck,
derelict, or recapture.”28 Successful salvors do not acquire title
to the salved property but rather obtain a lien upon that property, allowing them to maintain a suit in rem against the vessel or cargo itself for the whole or part of the wreck that was
saved.29 The true owner of the wreck retains title to it until it is
abandoned.30
The public policy behind salvage awards is to encourage
efforts to save property from peril at sea while discouraging
dishonesty and embezzlement by salvors.31 Remuneration for
salvage service is meant to serve as an incentive for the risks
taken voluntarily by the salvors.32 To determine the precise
amount of compensation courts take several factors into consideration.33
Three necessary elements must be established before a
person can lay claim to a salvage award: the maritime property
shore Waters: Vying for Rights to Treasure, 5 B.U. INT’L L.J. 153, 161 (1987) (citing
Brady v. The S.S. African Queen, 179 F. Supp. 321, 322 (1960); Eads, 22 Ark. 499
(1861); Treasure Salvors I, 569 F.2d at 336-37).
27 See, e.g., Columbus-America Discovery Gr., 974 F.2d at 458; Lady Elgin I,
746 F. Supp. at 1339.
28 The Blackwall, 77 U.S. 1, 12 (1869).
29 The Sabine, 101 U.S. 384, 386 (1879). The vessel is also referred to
as “shipwreck” or “wreck.”
30 See Hener, 525 F. Supp. at 356.
31 See The Blackwall, 77 U.S. at 14.
32 See id.; see also Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 525 F. Supp. 186, 207 (S.D. Fla. 1981) (stating that the consistent policy behind salvage awards is that salvors will be liberally awarded so to hold
out a continuing incentive to undertake the risks associated with salvage operations).
33 See The Blackwall, 77 U.S. at 14. The factors considered in determining the
amount of compensation include: the amount of labor expended by the salvor’s services;
the aptitude, skill, and energy exhibited during the salvage operation; the value of and
risk to the equipment used to assist in saving the property; the degree of risk incurred
by the salvor during the recovery; the value of the property saved; and the amount of
danger from which the property was saved. See id.
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must be (1) in marine peril and (2) successfully salvaged in
whole or in part by (3) the voluntary services of the salvor.34
Each of these elements merits a brief discussion.
First, to determine if the maritime property is in a state
of marine peril, a court must decide whether, at the time of the
salvage operation, the ship encountered any damage or misfortune that could result in destruction of the ship if the salvage
operation is not undertaken.35 Many things may constitute marine peril. Threat of storm, fire, or piracy to a ship in navigation are the major forms of peril to which a ship may be subjected. However, this list is not exhaustive.36 The danger of
marine peril does not have to be imminent and absolute;
rather, the standard is whether the peril can be reasonably
expected.37
Success of the salvage is the second element that must
be proved in order to claim a salvage award. To satisfy the
element of success under salvage law, thus allowing a salvage
lien to be imposed, all or part of the salved property must be
brought within the jurisdiction of the court.38 In 1869, the Supreme Court stated that “if the property is not saved, or if it
perish[ed], or in case of capture if it is not retaken, no
compensation can be allowed.”39 Indeed, under this traditional
approach success was necessary to the claim.40
34 See The Sabine, 101 U.S. at 384; Platoro Ltd., Inc. v. Unidentified Remains
of a Vessel, 614 F.2d 1051, 1055 n.6 (5th Cir. 1980).
35 See Conolly v. S.S. Karina II, 302 F. Supp. 675, 679 (E.D.N.Y. 1969).
36 See Treasure Salvors I, 569 F.2d at 337. In addition, property actually lost
or in danger of becoming lost may also constitute marine peril. See Thompson v. One
Anchor & Two Chains, 221 F. 770, 773 (W.D. Wis. 1915). In assessing a salvage award
for a ship’s lost anchor and chains, the Thompson court noted that if the anchor and
chains could be seen resting on a reef they would be in peril of being lost and the fact
that they were actually lost does not diminish or extinguish that marine peril. See id.
Moreover, even if lost property is discovered it may still be in marine peril due to the
actions of the elements of the sea. See Treasure Salvors I, 569 F.2d at 337.
37 See Fort Myers Shell & Dredging Co. v. Barge NBC 512, 404 F.2d 137, 139
(5th Cir. 1968).
38 See Treasure Salvors I, 569 F.2d at 334-35; see also The Sabine, 101 U.S. at
384 (ruling that the necessary element of success means “[s]uccess in whole or in part,
or that the service rendered contributed to such success.”); see also infra Part I.A. for
more on the jurisdiction of shipwrecks.
39 The Blackwall, 77 U.S. at 12.
40 See id.; see also The Sabine, 101 U.S. at 384.
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Finally, in order to lay a successful salvage claim, the
salvor must show that his or her services were voluntary—not
performed under any duty or legal obligation.41 Under this
element of salvage, the court must determine whether the salvor had a preexisting duty to perform the service.42 It is irrelevant whether the salvor is a good samaritan or a professional
only seeking an award because motive will not determine voluntariness.43 Owners of vessels sometimes have the right to
refuse salvage. When an owner is in control and possession of
the ship and there are no perils to human safety or risks to
property other than the vessel owner’s, a salvor who acts without express or implied consent of the owner will not be entitled
to a salvage award.44 However, if the ship is abandoned by her
owner, no consent is needed to salvage her.45 Under such a circumstance, non-consensual salvage under abandonment is
permitted when any prudent person would have accepted it.46
D.
Law of Finds v. Law of Salvage
Once an in rem action has been filed and jurisdiction
has been established, admiralty courts must decide whether
the law of finds or the law of salvage applies.47 Title vests in
41
1983).
See B.V. Bureau Wijsmuller v. United States, 702 F.2d 333, 338 (2d Cir.
42 See generally Mason v. The Blaireau, 6 U.S. 240 (1804) (declining to apply
the general maritime policy that denies the crew of a ship salvage awards for claiming
salvage against their own ship to a seaman who was the only member of the original
crew left on board and who undertook extreme danger to save the ship); Petition of Sun
Oil Co., 342 F. Supp. 976 (S.D.N.Y. 1972), aff’d, 474 F.2d 1048 (2d Cir. 1973) (finding
that the crew was not entitled to a salvage award because they acted out of safety for
their own crew and ship rather than voluntarily acting); Sobonis v. Steam Tanker Nat’l
Defender, 298 F. Supp. 631 (S.D.N.Y. 1969) (holding that a crew of men were entitled
to a salvage award because they acted beyond the scope of their employment and thus
met the voluntariness requirement).
43 See B.V. Bureau Wijsmuller, 702 F.2d at 339.
44 See Bonifay v. The Paraporti, 145 F. Supp. 879, 882 (E.D. Va. 1956) (citing
Cuttyhunk Boat Lines v. The Pendleton, D.C., 119 F. Supp. 608 (1954)) (holding that
salvage services performed without express or implied consent of the owner resulted in
no salvage award); F.E. Grauwiller Transp. Co. v. King, 131 F. Supp. 630 (E.D.N.Y.
1955), aff’d, 229 F.2d 153 (2d Cir. 1956) (salvor was repeatedly told by vessel owner to
cease and thus was not entitled to a salvage award).
45 See Merrit & Chapman Derrick & Wrecking Co. v. United States, 274 U.S.
611, 613 (1927).
46 See id.
47 See generally Columbus-America Discovery Gr., 974 F.2d at 460; Martha’s
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the salvor under the law of finds, while title of the wreck will
remain with the owner under the law of salvage.48
The law of finds is concerned primarily with title.49 Under the law of finds “if either intent or possession is lacking,
the would-be finder receives nothing; neither effort alone nor
acquisition unaccompanied by the required intent is rewarded.”50 Further, if it is decided that the property was not
abandoned, the law of finds permits no reward regardless of
the effort or level of success in recovering the property.51
On the other hand, the law of salvage is concerned primarily with the preservation of property on oceans and waterways.52 Salvage law grants a possessory interest in the salvor
for the purpose of saving the property from destruction, damage, or loss, and it allows the salvor to retain the property until
proper compensation has been paid.53 Unlike the law of finds, a
salvor need not have the intention to acquire the property; it is
enough that the salvor merely have the intention and capacity
to save it.54
Moreover, the meaning of “possession” in the law of salvage carries a more relaxed meaning than in the law of finds.55
A salvor does not need to establish the most secure possession
under the circumstances, rather he only needs “a possession
secure enough to warrant finding a right to perform service
and a right to a just reward.”56 Finally, unlike a potential
finder, the salvor receives a payment, depending on the value
of the rendered service.57 Whether a wreck is held to be abandoned is critical in determining which law applies and who
owns the ship.58 Although the law of finds and the law of salvage have been the two primary doctrines governing the dispoVineyard Scuba Headquarters, 833 F.2d at 1064-65; Hener, 525 F. Supp. at 358. In all
three cases the court had to determine as a preliminary matter whether the law of
finds or the law of salvage applied to the facts in each respective case.
48 See MDM Salvage, Inc. v. Unidentified, Wrecked & Abandoned Vessel, 631
F. Supp. 308, 311-12 (S.D. Fla. 1986).
49 See Hener, 525 F. Supp. at 356.
50 Id.
51 See id. (citing Watts v. Ward, 1 Or. 86, 62 Am. Dec. 299 (1854)).
52 See id.
53 See id.
54 See Hener, 525 F. Supp. at 356.
55 See id. at 357.
56 Id.
57 See id. at 357-58.
58 See id. at 356-57.
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sition of discovered shipwrecks, legislative action has altered
this approach.59 Key legislation affecting this area of the law is
discussed in the following section.
E.
The Abandoned Shipwreck Act of 1987 60
1. The Need for the Abandoned Shipwreck Act
The purpose of the Abandoned Shipwreck Act (“ASA” or
“the Act”) is to “vest title to certain abandoned historic shipwrecks that are buried in State lands to the respective States
and to clarify the management authority of the states for these
abandoned historic shipwrecks.”61 The Act was a response to
the need to protect historic shipwrecks as cultural resources.62
There are an estimated 50,000 shipwrecks located within the
navigable waters of the United States, and of those wrecks, five
to ten percent are of historical significance.63 The technological
boom has made access to these shipwrecks much easier,
thereby increasing interest in them.64 Consequently, these historic shipwrecks were being subjected to multiple use demands,
from sport divers with a recreational interest, underwater archaeologists concerned with preservation, and salvors focused
on commercial interests.65 The Act was also drafted in response
to the confusion that existed over the ownership and authority
to manage abandoned shipwrecks.66 Individual states were
claiming title to historic shipwrecks located on submerged
lands under their jurisdiction, while the federal admiralty
courts were also asserting jurisdiction over the wrecks.67
In 1953, Congress passed the Submerged Lands Act68
(“SLA”) which transferred ownership of all natural resources
59
See Fairport II, 105 F.3d at 1081-83.
U.S.C §§ 2101-2106 (2000).
61 H.R. REP. NO. 100-514, pt. I at 1 (1988), reprinted in 1988 U.S.C.C.A.N 365,
60 43
365.
62
See id.
See id.
64 See id.
65 See id.
66 H.R. REP. NO. 100-514 pt. I at 2.
67 See id.
68 43 U.S.C. §§ 1301 et seq.(2000).
63
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and submerged lands, out to a distance of three miles, to the
individual states.69 However, Congress did not specify in the
SLA whether states owned non-natural resources such as
abandoned shipwrecks located within the states’ submerged
lands.70 Despite this lack of clarity, twenty-eight states passed
laws pertaining to the management of historic shipwrecks in
state waters.71 However, many states were constrained in applying those shipwreck management and preservation laws
due to conflicts with federal admiralty principles and mixed
judicial decisions.72 Under Article III, Section 2 of the United
States Constitution and 28 U.S.C. § 1333, 73 federal district
courts have original jurisdiction over all maritime and admiralty cases.74 When exercising this jurisdiction the federal
courts applied the common law principles of admiralty, which
include the law of finds and law of salvage.75
Under the law of finds, the finder of an abandoned
shipwreck receives title.76 Under the law of salvage, the owner
of the wreck retains title but the salvor may be entitled to a
salvage award.77 However, when faced with salvage claims, a
majority of the federal courts concluded that “(1) the SLA did
not specifically assert U.S. title to shipwrecks and transfer that
title to the states; and (2) state historic preservation laws
whose provisions are inconsistent with federal common law
admiralty principles are superseded by those principles under
the supremacy clause of the Constitution.”78 A minority of the
federal courts disagreed and instead held that the SLA did
69 See H.R. REP. NO. 100-514 pt. II. In Texas, Puerto Rico, and the West Coast
of Florida the boundary is nine miles.
70 See id.
71 See id.
72 See id.
73 28 U.S.C. § 1333 (2000) provides that “[t]he district courts shall have
original jurisdiction, exclusive of the courts of the States, of: (1) Any civil cases of admiralty or maritime jurisdiction, saving to suitors in all cases all the other remedies to
which they are otherwise entitled, (2) any prize brought into the United States and all
proceedings for the condemnation of property taken as a prize.”
74 See H.R. REP. NO. 100-514 pt. II.
75 See id.
76 See Fairport III, 177 F.3d at 498.
77 See The Sabine, 101 U.S. at 386.
78 H.R. REP. NO. 100-514 pt. II (citing Cobb Coin Co., Inc. v. The Unidentified,
Wrecked & Abandoned Sailing Vessel, 525 F. Supp. 186 (S.D. Fla. 1981); Treasure
Salvors, Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel, 569 F.2d 330
(5th Cir. 1978)).
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provide states with jurisdiction over shipwrecks in state waters.79 Congress concluded that these inconsistent federal court
decisions had resulted in confusion over ownership of, and responsibility for, historic shipwrecks.80 This confusion prompted
legislation that would eventually become the ASA.81
2. Elements of the ASA
The first requirement under the ASA is that the shipwreck must be abandoned for the Act to be applicable.82 Next,
to be covered by the ASA, the abandoned shipwreck must be
“(1) embedded in submerged lands of a state; (2) embedded in
coralline formations protected by a state on submerged lands of
a state; or (3) on submerged lands of a state and . . . included in
or determined eligible for inclusion in the National Register.”83
If these requirements are met, the United States asserts title
to the shipwreck and thereafter transfers title to the state on
whose submerged lands the shipwreck is located.84
Of particular importance is § 2106(a) of the ASA, which
provides that “the law of salvage and the law of finds shall not
apply to abandoned shipwrecks to which Section 2105 of this
title applies.”85 Therefore, a finding of abandonment, in the
absence of a state law providing otherwise, will leave the salvor
with neither title nor a salvage award because traditional admiralty law will not apply.86 If, however, the shipwreck is
found not to have been abandoned then traditional admiralty
law prevails and the law of finds applies.87 Thus, the key element is abandonment, as the ASA cannot be triggered without
such a finding.88
The problem is that the ASA does not define abandon79 See id. (citing Subaqueous Exploration & Archaeology, Ltd., v. The
Unidentified, Wrecked & Abandoned Sailing Vessel, 577 F. Supp. 597 (D. Md. 1983)).
80 See H.R. REP. NO. 100-514 pt. II.
81 See id.
82 See 43 U.S.C. § 2105(a) (2000).
83 See id.
84 See id. § 2105(c).
85 See id. § 2106(a).
86 See Fairport II, 105 F.3d at 1082.
87 See 43 U.S.C. §§ 2105(a)-2106(a).
88 See id. § 2105(a) (requiring abandonment before any other elemental
analysis can take place).
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
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ment; and so, while the Act attempts to clarify these shipwreck
controversies, it has not been wholly successful due to disputes
concerning the standard of proof required for abandonment.89
F.
Recent Developments in Shipwreck Law
On April 22, 1998, the U.S. Supreme Court announced
the decision of California v. Deep Sea Research, Inc. (“Brother
Jonathan III”).90 Deep Sea Research had located the Brother
Jonathan, a ship that sank off the coast of California in 1865,
and sought rights to the wreck under the federal district court’s
in rem admiralty jurisdiction.91 California intervened and
claimed title to the wreck under the ASA and argued that Deep
Sea Research’s in rem action was a violation of the Eleventh
Amendment.92 Deep Sea Research countered that the ASA
could not divest the federal courts of the exclusive admiralty
and maritime jurisdiction conferred by Article III, Section 2 of
the United States Constitution.93 The Supreme Court granted
certiorari to address the interplay between federal court admiralty and maritime jurisdiction, the state’s Eleventh Amendment immunity, and whether the Brother Jonathan was subject to the ASA.94 The Court held that the Eleventh Amendment does not bar federal court jurisdiction over shipwreck
claims falling under the ASA.95
The ruling ended the jurisdictional dispute but failed to
address whether the Brother Jonathan was abandoned and
was therefore subject to the ASA.96 The Court found that the
Ninth Circuit had decided the wreck was not abandoned based
on jurisdictional concerns; therefore, the Court declined to re89
See Sea Hunt III, 221 F.3d at 638-40.
U.S. 491 (1998).
91 See id. at 495-96.
92 See id. at 496. California asserted it had title to the wreck either under the
ASA or under § 1613 of the California Public Resources Code and claimed that a suit in
rem over the wreck was thus prohibited by the Eleventh Amendment. California argued that the under the Eleventh Amendment federal courts must dismiss an action in
rem when a state intervenes, so long as the state’s claim of title is colorable. See id. at
496-97.
93 See id. at 497. See also supra notes 2-6 and accompanying text for a
discussion of the jurisdiction of shipwrecks.
94 See Brother Jonathan III, 523 U.S at 500-01.
95 See id. at 507-08.
96 See id. at 508-09.
90 523
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solve whether the shipwreck had been abandoned within the
meaning of the ASA and instead remanded the case for further
proceedings.97 Although the Court failed to resolve the circuit
split over the definition of abandonment under the ASA, it did
provide some guidance by recommending that on remand the
lower court should find that “the meaning of ‘abandoned’ under
the ASA conforms with its meaning under admiralty law.”98
Against this backdrop, the Fourth Circuit decided Sea Hunt
III. Part II presents a detailed analysis of the Sea Hunt decisions.
II.
SEA H UNT, INC. V. UNIDENTIFIED SHIPWRECKED VESSEL
OR V ESSELS, THEIR A PPAREL, TACKLE, A PPURTENANCES,
AND CARGO LOCATED WITHIN COORDINATES 38
DEGREES 01’ 36” NORTH LATITUDE , 75 DEGREES 14’ 33”
WEST LONGITUDE ET AL. 99
The days of scouring the seas for long lost Spanish
shipwrecks filled with riches recently received a nasty legal jolt
in Sea Hunt III. Sea Hunt marked the first time in history that
Spain laid legal claim to one of its many shipwrecks and prevailed in its legal battle to retain title to the shipwrecks and to
refuse salvage activities.100 This Part discusses the relevant
facts of the case, the procedural history, and the court’s reasoning.
A.
Facts
1. The La Galga
Two Spanish naval vessels, the La Galga and the Juno,
sank off the coast of present-day Virginia in 1750 and 1802,
respectively.101 The La Galga was commissioned by the Span97
See id.
Id. at 508.
99 221 F.3d 634 (4th Cir. 2000).
100 Id. at 647.
101 See Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 47 F.
Supp. 2d 678, 680-81 (E.D. Va. 1999) [hereinafter Sea Hunt I].
98
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ish Navy in 1732 and initially served as part of Spain’s Mediterranean Fleet.102 However, from 1736 to the day the ship
went down, the La Galga served as a convoy escort charged
with escorting merchant ships.103
On August 7, 1750, the La Galga, carrying the Second
Company of the Sixth Battalion of Spanish Marines, was directed to escort a convoy of merchant ships across the Atlantic
Ocean to Cadiz.104 Unfortunately, that would be the La Galga’s
last voyage.105 Eleven days into the journey, the La Galga ran
into a hurricane near Bermuda.106 The storm separated the
ships and forced them towards the present United States’
coast.107 On August 25, 1750, the La Galga sank off the coast of
the Eastern Shore near the present-day Maryland/Virginia
border.108 Luckily, most of the crew on board reached land
safely.109
After the ship sank, the commander of the La Galga attempted to salvage items from the wreck but was hindered
from doing so due to the pillaging and looting of the ship by
local residents.110 Eventually, the commander was able to obtain the help of the Maryland Governor in protecting the wreck
from the pillaging and looting, but before salvage efforts could
be resumed a second storm hit and broke apart what was left of
the ship.111 No more salvage efforts took place until approximately two hundred and fifty years later when Sea Hunt, Inc.
(“Sea Hunt”), a privately owned shipwreck salvage company,
resumed salvage operations on the La Galga.112
2. The Juno
The thirty-four gun frigate, the Juno, was commissioned
into the Spanish Navy in 1790 where she sailed with a squad102
See id. at 680.
See id.
104 See id.
105 See id. at 680-81.
106 See Sea Hunt I, 47 F. Supp. 2d at 681.
107 See id.
108 See id.
109 See id.
110 See id.
111 See Sea Hunt I, 47 F. Supp. 2d at 681.
112 See id.
103
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ron of other ships across the Atlantic to Cartagena.113 The Juno
served Spain for ten years, traveling many of the same routes
as the La Galga in the Atlantic and Caribbean.114 On October
19, 1802, during a mission to transport the Third Battalion of
the Regiment of Africa back to Spain, the Juno ran into a
deadly storm from which she would not recover.115 The storm
caused the Juno to sink, taking with her four hundred and
thirty-two lives.116 Shortly after the ship went down, Spain
launched an investigation into the sinking of the Juno but it
revealed nothing.117 The Juno remained undisturbed at the
bottom of the Atlantic for approximately two hundred years
until discovered by Sea Hunt.118
B.
The Parties Involved
After discovering what it believed to be the remains of
the La Galga and the Juno, Sea Hunt filed a verified complaint
in admiralty in rem against the two shipwrecks on March 11,
1998. 119 The complaint stated five counts:
1) that according to the Abandoned Shipwreck Act, the Commonwealth of Virginia is the rightful owner of the shipwrecks, and Sea
Hunt is entitled to the rights granted to it by the Virginia Marine
Resources Commission; 2) that Sea Hunt is entitled to a liberal salvage award for voluntarily recovering artifacts which are in “marine
peril”; 3) that Sea Hunt is entitled to an injunction prohibiting other
salvors from attempting to recover artifacts from the wreck; 4) that
based on information and belief, the two wrecks are the remains of
the Spanish frigates JUNO and LA GALGA, and Sea Hunt is entitled to declaratory judgment that Spain may no longer exercise sovereign prerogative over the wrecked vessels; and 5) that Sea Hunt is
entitled to declaratory judgment stating that no government other
than the Commonwealth of Virginia, including the United States or
any foreign sovereign, has jurisdiction to regulate salvage operations
over the two shipwrecks.120
113
See id.
See id.
115 See id.
116 See Sea Hunt I, 47 F. Supp. 2d at 681.
117 See id.
118 See id.
119 See id.
120 Id. at 681-82.
114
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1265
On March 12, 1998, the district court issued an arrest of the
two wrecks and appointed Sea Hunt the exclusive salvor until
further notice from the court.121
On May 13, 1998, Virginia filed a verified claim asserting that it was the rightful owner of the shipwrecks pursuant
to the ASA, and that its rights were being exercised through
permits issued to Sea Hunt by the Virginia Marine Resources
Commission.122 Under the permits, Virginia granted Sea Hunt
permission to conduct salvage operations and to recover artifacts from the shipwrecks.123 On May 18, 1998, the United
States filed a motion to intervene on behalf of Spain asserting
ownership of the two shipwrecks.124 Moreover, the United
States also filed an answer asserting its own interests in exercising regulatory authority over the shipwrecks.125 However,
the district court denied both of the motions filed by
the United States.126 Spain obtained counsel and filed a verified claim asserting ownership over the two shipwrecks.127
The district court held that Virginia had title to the La
Galga under the ASA but that Spain retained title to the
Juno.128 Under the ruling, Sea Hunt was allowed to continue
its salvage operations on the La Galga wreck according to the
terms of the permit issued by the Virginia Marine Resources
Commission; however, Sea Hunt was not allowed, without
121
See Sea Hunt I, 47 F. Supp. 2d at 682.
See id.
123 See Sea Hunt III, 221 F.3d at 639.
124 See Sea Hunt I, 47 F. Supp. 2d at 682. The United States inte rvened on Spain’s behalf because it believed it had an obligation under the Treaty of
Friendship and General Relations between the United States of America and Spain,
signed July 3, 1902. See id. at 682 n.2.
125 See id. The United States sought to give the National Park Service
regulatory authority over any salvage operations off the Assateague Island National
Seashore. See id.
126 See id. at 683. On September 23, 1998, the district court denied the United
States motion to intervene on its own behalf and likewise denied the United State’s
motion to intervene on behalf of Spain on September 25, 1998. See Sea Hunt I, 47 F.
Supp. 2d at 683.
127 See Sea Hunt III, 221 F.3d at 638-40; Sea Hunt I, 47 F. Supp. 2d at 684.
128 See Sea Hunt I, 47 F. Supp. 2d at 691.
122
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Spain’s permission, to continue salvage efforts on the Juno.129
C.
The Decision of the District Court
The district court based its ruling on the Definitive
Treaty of Peace Between France, Great Britain, and Spain,130
the 1763 Treaty that ended the French and Indian War.131 The
district court reasoned that under Article XX of the 1763
Treaty, Spain had relinquished its claim to all its possessions
on the continent of North America, to the east and to the south
of the Mississippi River, including not only the land but “everything that depends” on the land.132 In return for ceding to
Great Britain all of its possessions in North America, east and
south of the Mississippi River, Cuba was returned to Spain.133
The district court further explained that Great Britain was the
clear victor of the War in North America and that the terms of
the Treaty implied that Great Britain intended to obtain complete control over all of North America east of the Mississippi
River.134 The district court stated that:
The sweeping language of Spain’s cession in Article XX, together
with the background of the complete change of sovereignty in the
North American colonies, makes it unlikely that Spain intended to,
or would have been allowed by Great Britain to maintain a claim of
ownership over the wreck of LA GALGA off the coast of Virginia.135
The district court also pointed out that the last sentence
of Article XX reserved for the King of Spain the right to “cause
all the effects that may belong to him, to be brought away,
whether it be artillery or other things.”136 The court explained
that Spain and Great Britain knew where the La Galga was
129
See id.
Definitive Treaty of Peace, Feb. 10, 1763, Fr.-Gr. Brit.-Spain, art. 20,
42 Consol. T.S. 331.
131 See Sea Hunt I, 47 F. Supp. 2d at 689-90.
132 See id. at 689 (quoting Definitive Treaty of Peace, supra note 130, at art.
XX).
133 See id.
134 See id.
135 Id. at 689.
136 Sea Hunt I, 47 F. Supp. 2d at 689 (quoting Definitive Treaty of Peace, supra note 130, at art. XX).
130
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located, and therefore both countries knew that it would be
included in the cession of property.137 However, Spain made no
attempt to “bring away” any of the remains of the La Galga
after the Treaty was signed.138 This led the district court to
conclude that Spain in effect had waived its right to carry the
remains away.139 The district court found that Spain had ceded
its rights over everything it owned in North America east of
the Mississippi River, including sunken vessels, in the
Treaty.140 Thus, the district court held that Spain abandoned
the La Galga, and that she therefore belonged to Virginia under the terms of the ASA.141
As for the Juno, the district court held that because it
sank in 1802, several years after the 1763 Treaty, it was not
ceded to anyone.142 The district court considered whether the
Treaty of 1819, which ended the War of 1812, constituted evidence of express abandonment of the Juno by Spain.143 The
district court concluded that the Treaty of 1819 was more narrow in scope than the Treaty of 1763.144 The court found that
under the 1819 Treaty, Spain ceded only “territories,” namely
Florida, and not “all that Spain possesses,” as in the 1763
Treaty.145 Moreover, the court noted that the 1819 Treaty described territory “Eastward of the Mississippi,” similar to the
1763 Treaty, but the 1819 Treaty also clarified that the territory being described was only that “known by the name of East
and West Florida.”146 The district court concluded that since
the Juno was located off the coast of Virginia, the 1819 Treaty
did not affect it.147 Thus, the court held that Spain did not expressly abandon the Juno under the 1819 Treaty.148
Furthermore, the district court also considered the effect of the declaration of war between Spain and the United
States in 1898. The court held that Spain had not expressly
137
See id.
See id.
139 See id.
140 See id.
141 Sea Hunt I, 47 F. Supp. 2d at 690.
142 See id. at 689-92.
143 See id. at 690-91.
144 See id. at 690.
145 See id.
146 Sea Hunt I, 47 F. Supp. 2d at 690.
147 See id.
148 See id.
138
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abandoned the Juno under the declaration because the United
States would have had to obtain actual control over the Juno to
warrant a wartime confiscation of an enemy vessel.149 Since
that never occurred, the district court held that the Juno was
not expressly abandoned and therefore Spain retained title to
it.150
With respect to Sea Hunt’s claim for a salvage award for
its salvage efforts on the Juno, the district court expressly reserved that judgment pending supplemental briefs.151 The district court ordered such filings because Spain indicated that it
wished to treat the Juno wreck as a maritime grave and did
not want the vessel to be salvaged.152 The district court later
denied Sea Hunt the right to claim any salvage award because
Spain, the owner of the Juno, had expressly refused salvage
services.153
Spain appealed the district court’s decision concerning
the La Galga. Virginia and Sea Hunt cross-appealed with regard to the Juno and the denial of a salvage award.154
D.
The Decision of the Fourth Circuit
On appeal, the Court of Appeals for the Fourth Circuit
reversed in part and affirmed in part.155 The Fourth Circuit
affirmed the district court’s ruling that Spain retained title to
the Juno and that Sea Hunt is not entitled to a salvage award;
however, the court reversed the district court’s decision that
Virginia held title to the La Galga.156
The Fourth Circuit began its opinion with an abandonment analysis.157 Virginia and Sea Hunt argued that the ASA
149
See id. at 691.
See id. at 691-92.
151 See Sea Hunt I, 47 F. Supp. 2d at 692.
152 See id.
153 Sea Hunt III, 221 F.3d at 640.
154 Id.
155 Id. at 638.
156 Id.
157 See id. at 640 (noting that in order for Virginia to acquire title to
these wrecks, and in turn issue salvage permits, the ships must have been abandoned
by Spain). States can gain title to abandoned shipwrecks under the ASA, but to trigger
the ASA the wreck must be deemed abandoned. See discussion supra Parts I.E.1 and 2.
The court recognized that if the shipwrecks were abandoned, then Sea Hunt would be
entitled to control over them in accordance with the state-issued permits. See Sea Hunt
150
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
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requires application of an “implied abandonment” standard for
wrecks located in coastal waters, and that under such a standard, Spain has abandoned both shipwrecks.158 The court held
that since Spain has stepped forward and asserted ownership
to the two shipwrecks, “express abandonment” is the correct
standard to be applied.159 The court then noted that the ASA
does not define the critical term “abandonment,” but added
that nothing in the Act sets out that implied abandonment
should be the standard when dealing with a situation where a
sovereign asserts ownership over one of its own sunken vessels.160 The court stated that the Act defined “abandoned shipwrecks” as those that “the owner has relinquished ownership
rights with no retention” in an effort to support its argument
that express abandonment was the correct standard.161 The
court reasoned that the language of the Act provides that a
shipwreck is abandoned only where the owner relinquished
ownership rights; and when an owner has come forward and
asserted ownership rights, the court argued a finding of relinquishment is near impossible.162 Therefore, the court argued
that express abandonment was required.163
The Fourth Circuit continued its abandonment analysis
by reviewing relevant case law.164 The court noted that the Supreme Court in its recent Brother Jonathan decision declined
to define abandonment but stated that “abandoned” under the
ASA was defined the same as in admiralty law.165 The court
found that under admiralty law, abandonment might be inferred but that such an inference would be improper should the
owner appear.166 Sea Hunt and Virginia argued that other cirIII, 221 F.3d at 640.
158 Id.
159 See id. In reaching this conclusion, the court noted that Columbus-America
Discovery Group called for such a standard and additionally noted that to adopt a
lower standard, such as implied abandonment, would go beyond what the ASA requires
and also abrogate America’s obligations to Spain under the 1902 Treaty of Friendship
and General Relations. See id.
160 See id.
161 Sea Hunt III, 221 F.3d at 640 (citing 43 U.S.C. § 2101(b)).
162 Id. at 640-41.
163 See id.
164 See id. at 641-42.
165 See id. at 641.
166 See Sea Hunt III, 221 F.3d at 641. The Fourth Circuit cited one of its own
earlier decisions, Columbus-America Discovery Group, as the basis for its conclusion.
See id. at 639. The Court countered Sea Hunt and Virginia’s assertion that Columbus-
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cuits have provided for an implied abandonment standard.167
The Fourth Circuit, however, distinguished this case, finding
that none of the other cases involved an original sovereign
owner’s claim to its shipwrecked vessel.168
Finally, the court argued that an express abandonment
standard is further supported by Article X of the 1902 Treaty of
Friendship and General Relations.169 The court found that under the Treaty, Spanish vessels were granted the same immunities as similar vessels of the United States.170 The court then
pointed to Article IV, Section 3, of the United States Constitution, which states, “Congress shall have power to dispose of
and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States.”171
The court found that this Constitutional clause precludes an
implied abandonment standard of federal lands and property
because their disposition requires congressional action.172 The
court reasoned that the clause was also applicable for Spanish
vessels.173 The Fourth Circuit therefore ruled that an express
abandonment standard was the proper standard to be applied
in this case.174
The Fourth Circuit continued its analysis by addressing
whether there was an express abandonment of the shipwrecks.175 The court disagreed with the district court’s interpretation of Article XX of the 1763 Definitive Treaty of Peace,
and found that the plain language of that provision of the
Treaty contains no evidence of express abandonment of the La
Galga.176 Specifically, the Fourth Circuit noted that Spain’s
cession of property in the Treaty was limited to all that Spain
possesses “on the continent of North America.”177 The court
America Discovery Group is an anomaly by stating that the rule set forth in that case
reflects well-established admiralty law doctrine and existing case law. See id. at 64142.
167 See id.
168 See id.
169 See Sea Hunt III, 221 F.3d at 642.
170 Id.
171 See id. (citing U.S. CONST. art. IV, § 3).
172 See id.
173 See id.
174 See Sea Hunt III, 221 F.3d at 643.
175 See id. at 643-46.
176 See id. at 643-44.
177 Id. at 644.
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asserted that Spain therefore did not cede possessions in the
sea or seabed.178 Moreover, the court pointed out that Article
XX of the Treaty does not include any terms referring to shipwrecks; yet in other provisions of the Treaty, reference is made
to ships and vessels.179 Furthermore, the Fourth Circuit held
that the language in Article XX of the Treaty, “on the continent,” did not include coastal waters as Sea Hunt and Virginia
argued it had.180 Similar to the previously mentioned argument,181 the Fourth Circuit stated that Article XX of the Treaty
makes no mention of the term “coast,” yet in another provision
of the Treaty the term is explicitly used when granting French
Canada to Great Britain.182 Furthermore, in response to the
language in Article XX that provides Spain ceded “every thing
that depends on the said countries and lands,” the court mai ntained that this cannot be interpreted to include shipwrecks.183
The cour t supported that position by arguing that the eighteenth century understanding of “everything that depends” refers not to shipwrecks but rather “dependencies” such as
nearby islands.184 Finally, the Fourth Circuit drew attention to
the clause in Article XX, “his Catholic Majesty shall have
power to cause all the effects that may belong to him, to be
brought away, whether it be artillery or other things.”185 The
court stated that this clause contains no time limit, as did some
of the other clauses in the Treaty.186 In sum, the Fourth Circuit
concluded that Article XX of the Definitive Treaty of Peace does
not contain clear and convincing evidence of express abandonment of the La Galga.187
In an attempt to further support that conclusion, the
Fourth Circuit also noted that when parties to a treaty agree
on its interpretation, the court must, absent extraordinary contrary evidence, defer to that interpretation.188 The court went
178
See id.
See Sea Hunt III, 221 F.3d at 644.
180 See id. at 645.
181 Id. at 644; see also supra note 179 and accompanying text.
182 See Sea Hunt III, 221 F.3d at 645.
183 See id.
184 See id.
185 Id. at 645-46 (quoting Definitive Treaty of Peace, supra note 130, at art.
179
XX).
186
Id. at 646.
Sea Hunt III, 221 F.3d at 646.
188 Id. (citing Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982);
187
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one step further and stated that even if express abandonment
were not the controlling test in this case, in light of the circumstances surrounding the La Galga, a finding of implied abandonment would be improper.189 Thus, the Fourth Circuit reversed the district court and held that Spain retains title to the
La Galga.190
As for the Juno, the Fourth Circuit agreed with the district court’s holding that it was not expressly abandoned under
the 1819 Treaty and affirmed the district court’s ruling that
title to the Juno remains with Spain.191 The last issue the
Fourth Circuit addressed was whether Sea Hunt was entitled
to a salvage award for its salvage efforts on the Juno.192 The
court stated that the owner of a vessel has the right to refuse
unwanted salvage.193 The court agreed with the district court’s
finding that Sea Hunt knew the Juno was a Spanish ship and
that Spain might assert a claim of ownership and decline salvage.194 Thus, “[b]ecause Sea Hunt had prior knowledge of
Spain’s ownership interests and had reason to expect Spain’s
ownership claim and refusal to agree to salvage activity on
[Juno], Sea Hunt c an not be entitled to any salvage award.”195
III.
ANALYSIS
A.
The Fourth Circuit’s Standard of Abandonment Analysis
This Part discusses the misguidance of the Sea Hunt III
decision and argues that under traditional admiralty law,
when an owner comes forward and asserts ownership to its
shipwreck, abandonment by inference is not improper. MoreEl Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999)).
189 See id. at 647.
190 See id.
191 See id. at 643 n.1.
192 See Sea Hunt III, 221 F.3d at 647-48 n.2.
193 Id.
194 Id.
195 Id. (quoting Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel
or Vessels, No. 2:98cv281, 1999 U.S. Dist. LEXIS 21752, at *13 (E.D. Va. June 25,
1999) [hereinafter Sea Hunt II].
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
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over, this Part argues that the Fourth Circuit diverged from
the weight of authority when it affirmed the district court’s
denial of a salvage award.
The Fourth Circuit concluded that because Spain asserted ownership to the shipwrecks, express abandonment is
the governing standard.196 The court further reasoned that to
allow an implied abandonment standard in such a case would
go beyond what the ASA requires.197 The Court sought to justify its position by noting that even though the ASA does not
define abandonment, nothing in the Act indicates that implied
abandonment should be the standard when a sovereign has
stepped forward and asserted ownership to its shipwreck.198
The court pointed out that other courts have held that the ASA
“did not affect the meaning of ‘abandoned.’”199 The court also
noted that, according to the Supreme Court, “the meaning of
‘abandoned’ under the ASA conforms with its meaning under
admiralty law.”200 The Fourth Circuit then added that “[t]he
Supreme Court never suggested that by conferring title to the
states the ASA somehow altered the traditional admiralty
definition of abandonment.”201 The court argued that under
traditional admiralty law, when “an owner”202 comes forward
and asserts ownership of its vessel, express abandonment is
the proper standard.203 The court continued by contending that
an implied abandonment standard is permitted is some situations, but not when an owner appears and asserts ownership.204
The Fourth Circuit’s conclusion that an implied abandonment standard is improper under traditional admiralty law
when an “owner appears” is misleading. The court relies heav196
See id. 640-43.
See Sea Hunt III, 221 F.3d at 640-41.
198 See id. at 640.
199 Id. at 641 (quoting Fairport III, 177 F.3d at 499).
200 Id. at 641 (quoting Brother Jonathan III, 523 U.S. at 508); see supra notes
90-98 and accompanying text.
201 Id.
202 Sea Hunt III, 221 F.3d at 641. There is an important distinction between
using the term “an owner,” which may include a private owner, and using the term a
“sovereign owner,” which will become apparent in the discussion. The court uses both
terms throughout its analysis in a misleading way.
203 See id. (citing Columbus-America Discovery Gr., 974 F.2d 450).
204 See id. (citing Columbus-America Discovery Gr., 974 F.2d at 467-68).
197
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ily on its earlier decision in Columbus-America Discovery
Group to arrive at this standard of abandonment; however, the
weight of traditional admiralty law recognizes that abandonment may be found where circumstances give rise to such an
inference.205 What remains unsettled is whether such an inference of abandonment is permitted when one of the circumstances is that an owner appears and asserts its ownership
interest in a historic wreck. In virtually all of the cases involving ancient shipwrecks, no prior owner has appeared. Indeed,
the Sea Hunt dispute marked the first time Spain has ever
stepped forward and asserted an ownership interest to one of
its sunken vessels. In the few cases where an owner has appeared, other than the Fourth Circuit’s own decision in Columbus-America Discovery Group ,206 courts maintain that abandonment by inference is permitted if the circumstances warrant it.207
For example, in Columbus-America Discovery Group,
which involved parties stepping forward and asserting claims
of ownership, the district court stated that “whether property
has been abandoned is a que stion of intent, which may be in205 Compare Columbus-America Discovery Gr., 974 F.2d at 464-65 (holding
that when an owner appears and asserts his ownership interest, abandonment must be
proven by clear and convincing evidence such as express declaration of abandonment)
with Fairport III, 177 F.3d at 499-500 (rejecting a doctrine of express abandonment
and holding that abandonment may be inferred for vessels formerly owned by private
parties); United States v. Steinmetz, 973 F.2d 212, 222-23 (3d Cir. 1992) (recognizing
that an inference of abandonment can sometimes be found with non-use of private
property); Martha’s Vineyard Scuba Headquarters, 833 F.2d at 1065 (stating that
abandonment may be inferred when circumstances give rise to such an inference, for
instance, when a vessels is “so long lost that time can be presumed to have eroded any
realistic claim of original title”); Treasure Salvors III, 640 F.2d at 567 (holding that
where property has been lost for a very long time, an original owner may be stripped of
title and that title vests by occupancy in the one who discovers it and reduces it to his
or her possession); Moyer v. Wrecked & Abandoned Vessel, Known as Andrea Doria,
836 F. Supp. 1099, 1105 (D. N.J. 1993) (“Abandonment may be inferred from circumstantial evidence . . . . Factors such as lapse of time and nonuse by the owner may give
rise to an inference of an intent to abandon.”); Chance v. Certain Artifacts Found &
Salvaged from the Nashville, 606 F. Supp. 801, 804 (S.D. Ga. 1984) (“[I]nference of
abandonment may arise from lapse of time and nonuse of the property.”), aff’d. mem.,
775 F.2d 302 (11th Cir. 1985); Wiggins v. 1100 Tons, More or Less, of Italian Marble,
186 F. Supp. 452, 456 (E.D. Va. 1960) (holding that lapse of time and nonuse may give
rise to an inference of abandonment).
206 This is to be contrasted with the district court’s decision in ColumbusAmerica Discovery Gr., 742 F. Supp. 1327 (E.D. Va. 1990).
207 See id.; Zych v. The Unidentified, Wrecked & Abandoned Vessel, 755 F.
Supp. 213 (N.D. Ill. 1990).
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
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ferred from all of the relevant facts and circumstances.”208 The
court went on to state that “[i]n determining the question of
whether property has been abandoned, consideration must be
given to the property, the time, place and circumstances, the
actions and conduct of the parties, the opportunity or expectancy of recovery and all other facts and circumstances.”209
In Zych v. The Unidentified, Wrecked and Abandoned
Vessel, a ship which sank in 1860 was discovered by a salvor
who attempted to claim finder status and thus acquire title to
it under the law of finds.210 However, this claim of ownership
was disputed by the Lady Elgin Foundation who asserted it
had become the owner of the shipwreck pursuant to an agreement with CIGNA Property & Casualty Insurance Company.211
Lady Elgin alleged that CIGNA had transferred to them the
ownership interests in the wreck.212 Noting that the case
hinged on whether the ship was abandoned, the court sought to
clarify the standard under such circumstances.213 The court
stated:
Abandonment is the voluntary relinquishment of one’s rights in a
property. It occurs “by an express or implied act of leaving or deserting property without hope of recovering it and without the intention
of returning to it.” It must be voluntary, with a positive intent to
part with ownership, and without coercion or pressure. To show
abandonment, a party must prove (1) intent to abandon, and (2)
physical acts carrying that intent into effect. Abandonment may be
inferred from all of the relevant facts and circumstances. A finding
of abandonment must be supported by strong and convincing evidence, but it may, and often must, be determined on the basis of circumstantial evidence. 214
Thus, in Zych and Columbus-America, two district
courts followed the explicit principle announced repeatedly by
the weight of admiralty authority: abandonment may be inferred when circumstances give rise to such an inference.215 An
owner suddenly appearing to assert ownership over a historic
208
742 F. Supp. at 1328-29, 1335.
Id.
210 See Zych, 755 F. Supp. at 213-14.
211 See id. at 214.
212 See id.
213 See id.
214 Id.
215 See cases cited supra note 205.
209
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vessel is a circumstance to be taken into consideration along
with other recognized circumstances including non-use, lapse
of time, location of the wreck, and efforts by the owner to recover the vessel. Indeed, the circumstance of an owner appearing might result in a higher burden on the salvor to demo nstrate abandonment by inference. It does not, however, trigger
a per se rule, as the Fourth Circuit held in Sea Hunt III, that
there must be an express finding of abandonment where an
owner appears. The great weight of authority has not adopted
any bright-line rules for findings of abandonment—its approach has always been, and continues to be, based upon the
totality of the circumstances.216
The Fourth Circuit improperly states in Sea Hunt III
that traditional admiralty law does no t permit an implied
abandonment standard when an owner appears. Although the
vast majority of courts allowing abandonment by inference
have not yet been faced with an appearance by an owner clai ming ownership rights to its shipwreck, nothing suggests that
those courts would be opposed to such an abandonment standard as the Fourth Circuit mistakenly concludes. To the contrary, the weight of precedent indicates courts would permit
abandonment by inference if all the circumstances taken into
consideration warrant it.217 The Fourth Circuit’s requirement
of express abandonment has even been openly criticized as a
departure from the traditional admiralty law analysis of abandonment.218
In an attempt to further distinguish this weight of authority, the court argues that Sea Hunt and Virginia are unable to point the court to any case applying an implied abandonment standard where a “sovereign owner”219 has come for216
Id.
See id.
218 See supra note 24 and accompanying text. In rejecting the holding of the
Fourth Circuit in Columbus-America, which required an express renunciation of ownership in order to establish abandonment, the Fairport III court stated that “[r]igid
adherence to a doctrine requiring express abandonment would require courts to
‘stretch [] a fiction to absurd lengths.’ ” 177 F.3d at 500. Moreover, the court in Brother
Jonathan II stated that when the Fourth Circuit held that abandonment can only be
found by express renunciation of ownership it introduced a significant modification
into maritime law. 102 F.3d 379, 388 (9th Cir. 1996) aff’d in part, vac. in part, 523 U.S.
491 (1998).
219 This is to be contrasted with the court’s use of the term “an owner,” which
could include private owners. See supra note 202 and accompanying text.
217
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
1277
ward and asserted ownership to its property. Here, the court
has a valid point. There is some authority for an express abandonment standard when a “sovereign owner” asserts ownership
to its vessel.220 The ASA Guidelines explicitly address the
abandonment standard to be afforded to foreign sovereign vessels:
Although a sunken warship or other vessel entitled to sovereign immunity often appears to have been abandoned by the flag nation, regardless of its location, it remains the property of the nation to
which it belonged at the time of sinking unless that nation has taken
formal action to abandon it or to transfer title to another party. 221
Moreover, in a 1980 letter by James H. Michel, Deputy Legal
Advisor of the Department of State, responding to a request for
the Department’s views on the ownership rights acquired, if
any, by the United States to Japanese vessels sunk by the
United States during World War II, Michel wrote:
The practice of the U.S. and other countries in recent years has been
to depart from the earlier view that abandonment of a warship could
be implied by the long passage of time. . . . It is clear that under
well-established State practice, States generally do not lose legal title over sunken warships through the mere passage of time in the
absence of abandonment. . . . Although abandonment may be implied
under some circumstances, United States warships that were sunk
during military hostilities are presumed not to be abandoned.222
However, it is worth noting that even in the case of a
“sovereign owner” stepping forward and claiming ownership,
the law is still somewhat unsettled when the sovereign is not
the United States. As the Fourth Circuit pointed out, there has
been no case yet permitting an inferential abandonment standard where a claim of ownership was made by a “sovereign
owner.” Some circuits have come close to announcing a position
but have avoided doing so. For example, the Sixth Circuit in
220 See United States v. California, 332 U.S. 19, 27 (1947) (holding that Art.
IV, § 3, cl. 2 of the Constitution holds that the United States cannot abandon its own
property except by explicit acts); Steinmetz, 973 F.2d at 222 (holding that the United
States confederate warship Alabama can only be abandoned by an explicit act); see also
Abandoned Shipwreck Act Guidelines, 55 Fed. Reg. 50,116, 50,121 and 50,124 (1990)
[hereinafter ASA Guidelines].
221 ASA Guidelines, supra note 220, at 50,121.
222 MATION NASH LEICH, 1980 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW at 1004–05 (quoting a memorandum by James H. Michel, Deputy
Legal Advisor of the Department of State).
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Fairport III expressly limited its holding that implied abandonment is permitted for vessels previously owned by “private
parties” and it declined to express a view as to vessels owned
by a sovereign.223 In Martha’s Vineyard Scuba Headquarters,
the First Circuit held that a vessel may be “so long lost that
time can be presumed to have eroded any realistic claim of
original title,” and it went on to say that after the action in rem
was brought against the ship and its contents, “no person or
firm appeared to assert any overall claim of ownership.”224 But
the court did not address whether the inferential abandonment
standard would have applied had a sovereign appeared to assert an ownership claim.225 Likewise, other circuits have not
spoken precisely on the issue. Even the 1980 State Department
letter,226 stating that it has been the practice of the United
States and other nations in recent years to reject the idea that
there can be abandonment by inference of warships by the long
passage of time, still acknowledges in its conclusion that
“abandonment by inference may be implied under some circumstances.”227 The closest corollary to the judicial treatment
of foreign shipwrecks with respect to the applicable abandonment standard comes from United States v. Steinmetz228 and
United States v. California,229 which, taken together, establish
how shipwrecks of the sovereign, the United States, are to be
treated.230 Moreover, although the ASA is silent on the issue,
the ASA Guidelines do provide some guidance.231
The Fourth Circuit would have been more accurate had
it stated that an implied abandonment is improper should a
“sovereign owner” come forward and assert ownership, rather
than stating that should “an owner” appear and claim ownership over the property, abandonment by inference is not permitted under admiralty law. The term “an owner” indicates a
private as well as a sovereign owner and, under admiralty law,
the distinction is important. In determining the precedential
223
177 F.3d 491, 500 (6th Cir. 1999).
833 F.2d 1059, 1065 (1st Cir. 1987).
225 See id.
226 See supra Part III.A.
227 LEICH, supra note 222, at 1004–05.
228 973 F.2d 212 (3d cir. 1992).
229 332 U.S. 19 (1947).
230 See cases cited supra note 220.
231 See supra notes 220-21 and accompanying text.
224
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
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value of the Fourth Circuit’s decision in Sea Hunt III, it is more
accurate to state that an express abandonment standard is
proper when a “sovereign owner,” as opposed to simply “an
owner,” has stepped forward and asserted ownership interests
over its shipwreck.
As it turns out, the Fourth Circuit was able to offer an
additional factor in the Sea Hunt III case requiring the application of an express abandonment standard. The court pointed
out that Article X of the 1902 Treaty of Friendship and General
Relations between the United States and Spain requires an
express abandonment standard.232 Article X provides, “[i]n
cases of shipwreck . . . each party shall afford to the vessels of
the other . . . the same assistance and protection and the same
immunities which would have been granted to its own vessels
in similar cases.”233
The court noted that the language of the treaty requires
that imperiled Spanish vessels shall receive the same immunities given to similarly situated vessels of the United States.234
The court then presented an analysis of the immunities conferred upon U.S. vessels and concluded that they may only be
abandoned by an “express, unambiguous, and affirmative
act.”235 Thus, the Fourth Circuit held that under the terms of
the 1902 Treaty, requiring that imperiled Spanish vessels are
to receive the same immunities given to similarly situated vessels of the United States, Spain can only abandon its vessels by
express renunciation.236 Having determined that an express
abandonment standard will govern, the court then addressed
232
See Sea Hunt III, 221 F.3d at 642.
Treaty of Friendship and General Relations, July 3, 1902, U.S.—Spain, 33
Stat. 2105, 2110-11.
234 See Sea Hunt III, 221 F.3d at 642.
235 Id. In reaching this conclusion the court referred to art. IV, § 3 of the Constitution which states that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the
United States.” U.S. CONST. art. IV, § 3. The court concluded that this article of the
Constitution precludes a finding of implied abandonment of federal lands and property
and instead requires some congressional action for dispositions of federal property. See
Sea Hunt III, 221 F.3d at 642. The court also noted that the Third Circuit has held that
the United States cannot abandon its own property except by explicit acts. See id.
(citing Steinmetz, 973 F.2d at 222). Moreover, the court argued that the Supreme Court
has recognized that art. IV, § 3 of the Constitution holds that the Unites States cannot
abandon its own property except by explicit acts. See id. (citing California, 332 U.S. at
27).
236 See Sea Hunt III, 221 F.3d at 643.
233
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whether the La Galga and the Juno had been expressly abandoned.237 After concluding that neither ship had been expressly
abandoned, rendering the ASA and the law of finds inapplicable, the court briefly considered the alternative admiralty action—Sea Hunt’s salvage award claim.238
B.
The Fourth Circuit’s Denial of a Salvage Award
Here again, the Fourth Circuit diverged from the weight
of authority when it affirmed the district court’s denial of a
salvage award for Sea Hunt’s salvage services on the Juno and
held:
It is the right of the owner of any vessel to refuse unwanted salvage.
Sea Hunt knew before bringing this action that the JUNO was a
Spanish ship and that Spain might make a claim of ownership and
decline salvage. . . . Because Sea Hunt had prior knowledge of
Spain’s ownership interests and had reason to expect Spain’s ownership claim and refusal to agree to salvage activity on JUNO, Sea
Hunt cannot be entitled to any salvage award. 239
The Fourth Circuit failed to recognize that all of the necessary
elements for a valid salvage claim were present: there was a
voluntary and successful salvage of the marine periled Juno.240
First, the Juno was in marine peril. It is well established that shipwrecks, and/or their artifacts, still lying at the
bottom of the sea are in marine peril.241 Second, Sea Hunt had
also performed successful salvage services on the Juno. Sea
Hunt had successfully salvaged two anchors, a cannon, and
several coins during its attempt to positively identify the ship-
237
See id. at 643.
See id. at 647-48.
239 Id. at n.2.
240 See supra note 34 and accompanying text.
241 See supra notes 35-37 and accompanying text for a discussion on
what constitutes marine peril.
238
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
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wreck as the Juno.242 Sea Hunt had successfully salved part of
the shipwreck believed to be the Juno and its efforts had contributed to its eventual preservation.243 Finally, Sea Hunt’s
salvage services were voluntary as it had no duty or obligation,
legal or otherwise, to provide these services.244
The Fourth Circuit did not discuss whether Sea Hunt
had established the existence of these three necessary elements. Rather, it affirmed the district court’s ruling that a salvage award was not permitted because Spain had properly refused the salvage activity.245 Whether Spain, under the law of
salvage, had properly refused Sea Hunt’s salvage activity was
a major point of contention between the parties. The Fourth
Circuit diverged from majority view in deciding this issue.
Sea Hunt argued that “only owners in actual possession
of vessels may refuse salvage.”246 Sea Hunt noted that in cases
where salvage has been properly refused the owner was in actual possession of the vessel and could therefore respond to the
marine peril.247 However, Sea Hunt argued that when the
owner is not in actual possession and consequently cannot respond to the marine peril, salvage cannot be refused.248 Spain,
on the other hand, argued that under traditional admiralty law
principles, when the owner of a vessel unequivocally rejects
salvage services, the owner has a broad right to refuse unwanted salvage.249 Contending that a “doctrine of rejection,”
giving owners or persons with authority the right to communicate refusal, has been embraced by American courts of admi242
See Joint Opening Brief of Appellees Commonwealth of Virginia and Sea
Hunt, Inc. at 55, Sea Hunt III (No. 99-2035) [hereinafter Joint Opening Brief].
243 See supra notes 38-40 and accompanying text for a discussion on the requirements of successful salvage; see also The Annie Lord, 251 F. 157, 159 (D. Mass.
1917) (stating that “It is not necessary, in order to establish a claim to salvage, that a
salvor should actually complete the work to save property at risk. . . . It is sufficient if
he endeavors to do so, and his efforts have a causal relation to the eventual preservation of it.”).
244 See supra notes 41-46 and accompanying text for a discussion on the what
constitutes voluntary salvage services.
245 See Sea Hunt III, 221 F.3d at 647.
246 Joint Opening Brief, supra note 242, at 49.
247 See id.
248 See id. at 49-50.
249 See Answering and Reply Brief of Intervenor—Appellant and CrossAppellee The Kingdom of Spain at 41-42, Sea Hunt III (No. 99-2035) [hereinafter Answering and Reply Brief].
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ralty, Spain argued that it had the right to refuse Sea Hunt’s
salvage activity despite its lack of actual possession of the
Juno.250
The district court sided with Spain on this issue.251
However, whether an owner can reject salvage services when
not in actual control or possession of the marine periled vessel
is unsettled. Most traditional admiralty law cases have dealt
with owners who were in actual possession when rejecting salvage services.252 Legal disputes regarding the rejection of salvage services on shipwrecks did not arise until the present
time because the technology to locate shipwrecks and bring
them to the surface did not exist.253
The weight of authority holds that owners of vessels
sometimes have the right to refuse salvage but, in order to do
so, the owner must be in actual control and possession of the
ship and the vessel cannot be in a state of peril.254 However,
there seems to be a developing body of authority directly in
conflict with this majority position. Most recently, the Eleventh
Circuit reversed the district court in Int’l Aircraft Recovery,
L.L.C. v. The Unidentified, Wrecked & Abandoned Aircraft and
held that “the law of salvage [permits] the owner of a vessel in
marine peril to decline the assistance of others so long as only
the o wner’s property interests are at stake.”255
250
See id.
See Sea Hunt II, 1999 U.S. Dist. LEXIS 21752, at *4-5.
252 See id.
253 See Joseph C. Sweeney, An Overview of Commercial Salvage Principles in
the Context of Marine Archaeology, 30 J. MAR. L. & COM . 185, 195 (Apr. 1999).
254 See supra notes 44-46 and accompanying text; see also The Laura, 81 U.S.
336, 344-45 (1871); The Barque Island City, 66 U.S. 121, 128 (1861); MARTIN J.
NORRIS, BENEDICT ON ADMIRALTY: SALVAGE § 136 (rev. 7th ed. 1999); THOMAS J.
SCHOENBAUM , ADMIRALTY AND MARITIME LAW : SALVAGE § 16-1 (2d. ed. 1994);
Sweeney, supra note 253, at 193-95. This view can also be found in jurisprudence as
recent as July 1999. See Int’l Aircraft Recovery, L.L.C. v. The Unidentified, Wrecked &
Abandoned Aircraft, 54 F. Supp. 2d 1172, 1181 (S.D. Fla. 1999) (holding that even if
the United States Navy still owns its historic aircraft it could not refuse salvage on it
where the property was in marine peril and the owner has not made adequate provisions for a rescue). The court also noted that numerous courts have held that that any
owner may not refuse salvage services if marine peril exists. See id. at 1180.
255 Int’l Aircraft Recovery, L.L.C. v. The Unidentified, Wrecked & Abandoned
Aircraft, 218 F.3d 1255, 1262 (11th Cir. 2000); see also Platoro Ltd., Inc. v. The Unidentified Remains of a Vessel, 695 F.2d 893, 901-02 (5th Cir. 1983) (noting that a “salvage award may be denied if the salvor forces its services on a vessel despite rejection
of them by a person with authority over the vessel”).
251
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Although the Fourth Circuit sided with the minority position on this salvage law issue by holding that Spain could
refuse salvage despite the fact that it was not in actual control
or possession of the marine periled Juno, another circuit, following the majority view, would likely find that Sea Hunt had
a valid salvage claim.256 Thus, the question left unanswered by
the Fourth Circuit’s decision in Sea Hunt III is whether Article
X of the 1902 Treaty of Friendship and General Relations between the United States and Spain will preclude a salvage
award for salvage services rendered on its sovereign vessels. 257
This is an important question because an estimated 600 Spanish vessels were lost in the coastal waters of the United States,
an area frequently subject to salvage operations.258
Article X of the 1902 Treaty of Friendship and General
Relations between the United States and Spain governs how
Spain’s sovereign shipwrecks are to be treated.259 As the
Fourth Circuit established, Article X requires that imperiled
Spanish vessels receive the same immunities given to similarly
situated vessels of the United States.260 Indeed, the Fourth
Circuit’s analysis of the immunities conferred upon U.S. vessels led it to conclude that Spain must expressly abandon its
sovereign vessels.261 The answer to the question of whether a
salvor can bring a salvage award action for salvage services on
a Spanish sovereign vessel thus lies in what immunities are
conferred upon United States vessels with respect to salvage
award claims.
256 In addition to meeting the three necessary elements for a valid salvage
claim, a voluntary and successful salvage of the marine periled Juno, Spain under the
majority view did not properly refuse salvage services. Spain has not been in control or
possession of the Juno since its sinking in 1802. Moreover, a risk to the property does
exist independent of one that could be caused by the vessels owner, the risk of marine
peril. Spain is not in control or possession of the Juno and thus is in no position to
respond to the marine peril itself and Spain, at the time of the salvage services were
rendered, had made no provisions for rescuing the Juno from such peril. Thus, under
the law of salvage, Spain could not lawfully refuse salvage services on the Juno. See
authority cited supra note 254.
257 This question is left unanswered by the Fourth Circuit because the court
did not have to deal with it since it held that Spain had properly refused salvage se rvices.
258 William J. Broad, Court Ruling on Spanish Frigates Foils ModernDay Treasure Hunt, N.Y. TIMES, July 31, 2000, at A1.
259 See Treaty of Friendship and General Relations, supra note 233.
260 See Sea Hunt III, 221 F.3d at 643.
261 Id.
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The United States, by statute, has waived its sovereign
immunity with respect to salvage services rendered on its vessels.262 Section 781 of the Public Vessels Act provides:
A libel in personam in admiralty may be brought against the United
States, or a petition impleading the United States, for damages
caused by a public vessel of the United States, and for compensation
for towage and salvage services, including contract salvage, rendered
to a public vessel of the United States.263
Consistent with the Public Vessels Act, the United States has
allowed salvors to maintain salvage award actions for salvage
services on public vessels of the United States. For example, in
Petition of United States, suit was brought under the Public
Vessels Act for salvage services rendered on a Coast Guard
vessel.264 The court held that a claim under the law of salvage
could be presented on proper presentation of the issues.265
Similarly, in Lago Oil & Transport Co. v. United States, an action was permitted against the United States for salvage services rendered on a tanker owned by the United States, a public vessel.266 Thus, as case law demonstrates, a salvage award
action may be brought against the United States. Accordingly,
by extension of the same immunities given to imperiled Spanish vessels as those that are given to such vessels of the United
States, Sea Hunt would not have been precluded under Article
X of the 1902 Treaty of Friendship and General Relations from
bringing a salvage award claim.
Even an argument by Spain that the Foreign Sovereign
Immunities Act (“FSIA”)267 would bar Sea Hunt’s salvage claim
would lack merit.268 Section 1605(a)(1) provides that “a foreign
262 See 46 U.S.C. § 781 (2000); see also Helgesen v. United States, 275 F.
Supp. 789, 790 (S.D.N.Y. 1966) (stating that suits based on admiralty claims may be
brought against the United States under the various statutes including the Public
Vessels Act).
263 46 U.S.C. § 781.
264 See 216 F. Supp. 775, 775 (D. Or. 1963).
265 See id. at 784.
266 See 218 F.2d 631 (2d Cir. 1955).
267 See 28 U.S.C. §§ 1602-1611 (1994).
268 The FSIA codified the principal of sovereign immunity, recognized by Chief
Justice Marshall in the 1812 case The Schooner Exchange v. M’Faddon, 11 U.S. 116
(1812). The Chief Justice in that case held that sovereign nations are not subject to
judicial process without their express consent. See id.; see also Answering and Reply
Brief of Intervenor – Appellant and Cross-Appellee The Kingdom of Spain at 35. The
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
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state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case . . . in which the foreign state has waived its immunity either explicitly or by implication. . . .”269 Although this clause has been narrowly interpreted by courts, which require strong evidence that a foreign
state has intended to waive its sovereign immunity, Spain has
provided strong evidence of its intention to waive its
sovereign immunity.270 Such evidence is found in the 1902
Treaty, where Spain unequivocally and expressly waived its
sovereign immunity with respect to its imperiled vessels.271 It
did so when it agreed that its imperiled vessels are to receive
the same protections and immunities given to similarly situated vessels of the United States.272 Thus, if the United States
were to waive its sovereign immunity, as it later did for actions
based on salvage services rendered on its public vessels, Spain
understood that its immunity would also be waived.273 Therefore, under Article X of the 1902 Treaty of Friendship and General Relations, Spain has, in so much as the United States has,
waived its sovereign immunity for actions brought against it
for salvage services rendered on one of its sovereign vessels.
CONCLUSION
The vast developments in undersea technology are
opening up the wonders beneath the sea to the peering eyes of
the world. As technology continues to develop, one can easily
imagine that even a basketball at the bottom of the deep sea
can be located. This technology has allowed salvors to locate
historic shipwrecks once thought lost forever; but while many
of these discoveries preserve a piece of history, they also disFSIA’s implicit waiver clause recognizes the principal announced by Chief Justice
Marshall in The Schooner Exchange, that foreign sovereign immunity can be waived.
See 28 U.S.C. § 1605(a)(1) (2000).
269 28 U.S.C. § 1605(a)(1).
270 See e.g., Corporacion Mexicana De Servicios Maritimos v. The M/T
RESPECT, 89 F.3d 650 (9th Cir. 1996); Rodriguez v. Transnave Inc., 8 F.3d 284 (5th
Cir. 1993); see also Answering and Reply Brief, supra note 249, at 40.
271 See Treaty of Friendship and General Relations, supra note 233.
272 See Sea Hunt III, 221 F.3d at 643.
273 See supra notes 259-66 and accompanying text.
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turb it. Indeed, legal battles have ensued over whether salvors
can and/or should disturb these shipwrecks, and the need to
protect historic shipwrecks as cultural resources was a major
factor in passing the ASA.274
Each shipwreck presents a complicated, and often
unique, set of legal issues. Many of those legal issues have been
addressed over the years and a body of admiralty law has
evolved concerning legal rights over historic shipwrecks. This
body of admi ralty law, together with the passage of the ASA,
has provided many of the answers to the legal questions that
arise under the laws governing shipwrecks. However, as the
Sea Hunt III case illustrates, there are many questions still in
dispute or left unanswered.
First, a split in the circuits has developed as to under
what circumstances abandonment of a shipwreck may be implied.275 Adding to that confusion, the question of whether
abandonment by inference is improper when “an owner” appears and asserts ownership to its long lost shipwreck is now
ripe for dispute due to the Fourth Circuit’s opinion in Sea Hunt
III. The weight of traditional admiralty law suggests that
abandonment by inference, under the right circumstances,
would not be improper even though “an owner” appears and
asserts ownership to its vessel.276 However, when the owner is
a “sovereign,” the sparse existing authority does indicate that
abandonment by inference under such a circumstance would be
improper. Still, questions involving the standard of abandonment to be applied when owners appear, both private and sovereign, are in the initial stages of development and are sure to
spark legal battles in the coming years, especially given the
Fourth Circuit’s Sea Hunt III decision.
Second, the question of whether an owner not in actual
control or possession of a periled vessel can refuse salvage has
currently produced conflicting authority as well.277 The Fourth
Circuit sided with the minority position on this issue, and in
doing so increased the weight of authority taking the position
that an owner need not be in actual possession or control to
reject salvage services as the owner has a broad right to refuse
274
See supra Part II.E.
See supra notes 24 –25 and accompanying text.
276 See supra Part III.A.
277 See supra Part III.B.
275
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HOW THE FOURTH CIRCUIT ROCKED THE BOAT
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such services. This increasingly developing split of authority is
sure to produce legal disputes.
Finally, if an owner has a valid salvage claim on a sovereign vessel of Spain, does the 1902 Treaty of Friendship and
General Relations between the United States and Spain preclude the salvor from bringing a salvage award action? Although the Fourth Circuit did not have to face this question,
since it held that Spain had properly refused Sea Hunt’s salvage activities, with hundreds of Spanish shipwrecks still lying
at the bottom of the sea in the coastal waters of the United
States, this question is sure to arise in the future. An analysis
of the 1902 Treaty indicates that Spain has waived its sovereign immunity with respect to salvage actions brought against
it for salvage services rendered on its sovereign vessels.278
In addition to furthering the split in authority over the
proper standard of abandonment to be applied in various contexts and how an owner can suitably refuse salvage activities,
the Fourth Circuit’s Sea Hunt III decision also has other effects. Namely, the decision will likely discourage future salvage
operations. Many salvors will view this decision as a threat to
their glorious days of treasure hunting. Salvors now run the
risk of spending considerable amounts of time and money locating and salvaging shipwrecks without the possibility of any
profit. Additionally, the possibility that a salvor will not even
receive compensation by way of a salvage award for the time
and money it spent, thus putting them at risk of not even
breaking even, has the potential of further squashing any remaining profit incentive. Without that profit incentive, many
salvors will no longer engage in these salvage expeditions and,
consequently, society will lose out on the benefits of recovering
historical artifacts.279
By recovering historic objects a piece of history is preserved. Historic shipwreck artifacts provide a portal to the cultures of the past, a portal that facilitates an understanding and
preservation of past cultures. Indeed, “the past . . . plays an
important role in the present [because] we use the past as an
278
See supra Part III.B.
I say “many” and not “all” in recognition that some salvors may endeavor
in such expeditions for reasons beyond the potential for profit. Some salvors may undertake such operations in an effort to preserve historical and archaeological objects
and information.
279
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orientation to our own lives.”280 Through the preservation and
examination of historic shipwreck artifacts, we are able to
study human civilization—in many instances of cultures that
have vanished.281 Shipwrecks allow us to study “a lost dimension of history: man’s encounter with the sea and the role
which this has played in the development of human civilization.”282 Shipwrecks provide this cultural glimpse because they
often contain “an entire cross section of life ‘frozen’ intact in
time,”283 and preservation of culture is important given the increasing homogeneity of cultures in our modern world.
Yet, while there are obvious historical and cultural
benefits to promoting salvage expeditions, there are also legitimate concerns. Many believe, as did Spain in Sea Hunt III,
that these historic shipwrecks are maritime graves of the brave
souls who went down with the ship. As maritime graves, the
sentiment exists that these wrecks should not be explored or
exploited. The concern also exists, as argued by the United
States, that the United States has thousands of lost vessels
that it too would like other countries and parties to treat as
honored maritime graves.284 Additionally, the call for international cooperation is becoming increasingly important as the
vast advancements in technology increase the frequency and
ease of salvaging sunken ships. The stage for such cooperation
was set in Sea Hunt III. Indeed, the call from Spain to recognize the La Galga and the Juno as maritime graves and the
first ever request from Spain for international cooperation,
which the United States sought to comply with, likely played a
role in the Fourth Circuit’s willingness to diverge from traditional admiralty law.
Kevin Berean†
280
See PETER THROCKMORTON, THE SEA REMEMBERS : SHIPWRECKS AND
ARCHAEOLOGY FROM HOMER’S G REECE TO THE REDISCOVERY OF THE TITANIC 226
(1996).
281 See id. at 9.
282 Id. at 7.
283 Id. at 10.
284 See Broad, supra note 258, at A1.
† J.D. Candidate, Brooklyn Law School, 2002; Master of Industrial and Labor
Relations, Cornell University, 1997; B.A. in Communications, State University of New
York at Buffalo, 1996. For teaching me how to undertake every endeavor with dignity
and integrity, I dedicate this Comment to my lovely wife, Jeanine Dames.
AN ATTEMPT TO PICK UP THE FALLEN BRICKS
OF THE WALL SEPARATING CHURCH AND STATE
AFTER SANTA FE v. DOE ∗
Of all the issues the ACLU takes on—reproductive rights, discrimination, jail and prison conditions, abuse of kids in the public schools,
police brutality, to name a few—by far the most volatile issue is that
of school prayer. Aside from our efforts to abolish the death penalty,
it is the only issue that elicits death threats. 1
INTRODUCTION
Since its enactment, the First Amendment to the United
States Constitution2 has firmly stood to protect an individual’s
freedom of religion. Although the cruelty witnessed by the
framers against those holding minority religious beliefs would
be unthinkable in America today, one cannot question the importance of this freedom.3 Unfortunately, the dual guarantees
of the religion clauses of the First Amendment cause a perplexing problem when there is religious speech in the context of a
∗
©2002 Ross Schmierer. All Rights Reserved.
Lee v. Weisman, 505 U.S. 577, 606 n.10 (1992) (quoting Michelle A. Parish,
Graduation Prayer Violates the Bill of Rights, 4 UTAH BAR. J. 19 (1991)).
2 See U.S. CONST. amend 1 (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech . . .”).
3 See Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 8 (1947) (describing how:
A large proportion of the early settlers of this country came from
Europe to escape the bondage of laws which compelled them to support
and attend government favored churches. The centuries immediately
before and contemporaneous with the colonization of America had been
filled with turmoil, civil strife, and persecutions, generated in large
part by established sects determined to maintain their absolute polit ical and religious supremacy . . . . In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined,
cast in jail, cruelly tortured and killed.)
Id.
1
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public forum. On the one hand, the Free Speech Clause,4 intended to protect private religious expression, forbids contentbased restrictions on private expression in the public forum.
Yet, on the other hand, the Establishment Clause5 requires
that the government not favor one religion over another. As a
result, an inherent conflict exists between these doctrines because when the government allows private religious speech in
a public forum it appears to be sponsoring religion.
When these doctrines collide in the public school context, it is imperative that lower courts and school districts have
intelligible guidelines. In the early school prayer cases, the Supreme Court clearly embraced the doctrine of church-state
separation.6 Commentators have argued that the separationist
ethos has survived best in the context of religious exercises in
public schools.7 Because of the changes in the makeup of the
Supreme Court, school prayer issues have been scrutinized using several different tests and rationales, further exacerbating
the situation.8 Recently, the American Bar Association declared that “[f]or the past decade, the legal status of studentled prayer has become the most contentious of First Amendment questions, dividing school officials, lawyers and judges.”9
Sadly, the current Supreme Court in its Santa Fe Independent
School District v. Doe10 decision took a step backwards in
this important and volatile area of
jurisprudence by not providing clear guidance to lower courts
and school districts.
4
See U.S. CONST. amend. 1 (“Congress shall make no law . . . abridging the
freedom of speech . . .”).
5 See U.S. CONST. amend. 1 (“Congress shall make no law respecting an establishment of religion . . .”).
6 See Sch. Dist. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421
(1962) (Discussed infra Part I.A.).
7 JOHN H. G ARVEY & FREDERICK SCHAUR, THE FIRST AMENDMENT: A READER
450 (1996).
This setting combines many of separationism’s core concerns, inclu ding the privatization of religion, the dangers of a divisive local politics
of religion, the role of common schools as unifying carriers of shared
aspirations and culture, and the threat to individual religious liberty
created by the compulsory character of education of the young.
Id.
8
These tests are described infra Part I.
David G. Savage, OK to Pray in Public School?, A.B.A. J., Feb. 2002, at 31.
10 530 U.S. 290 (2000).
9
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THE FALLEN BRICKS OF THE WALL
1293
In Santa Fe, two families objected to the persistent imposition of sectarian religious practices in the public schools of
Santa Fe, Texas. As a result, they sought injunctive relief
against the Santa Fe Independent School District to prevent it
from sponsoring or condoning religious acts at imminent
graduation exercises.11 They also alleged, inter alia, that the
district allowed students to deliver overtly Christian prayers
over the public address system at home football games.12 Although the Supreme Court correctly held the school district’s
policy was unconstitutional, the Court utilized language and
principles from several different Establishment Clause tests.
Among the ramifications of the Court’s analysis in Santa Fe, is
its failure to offer a cogent standard for analyzing the constitutionality of school policies that allegedly violate the Establishment Clause. In addition, the Court employed the public forum
doctrine which was created to govern the First Amendment
guarantees of individuals using publicly owned property for
free speech purposes. As Chief Justice Renhquist acknowledged, “we [the Court] have repeatedly emphasized our unwillingness to be confined to any single test or criterion in the [Establishment Clause] area.”13 Admittedly, the Court cannot use
the same test to evaluate every situation challenged under the
Establishment Clause. However, the Santa Fe approach in this
particular school prayer context left too many unanswered
questions including: (1) which Establishment Clause test
and/or principle, if any, was dispositive; (2) the significance of a
facial challenge on Establishment Clause grounds; and (3)
when speech endorsing religion is truly private and constitutionally protected.
Unfortunately, these concerns materialized in two Eleventh Circuit decisions, Chandler v. James14 and Adler v. Duval
County School Board.15 After the Supreme Court granted certiorari16 and remanded Chandler to be decided in light of the
principles announced in Santa Fe, the Eleventh Circuit mai ntained that “Santa Fe leaves unanswered, however, under
11 See Respondent’s Brief at 43, Santa Fe v. Doe, 530 U.S. 290 (2000) (No. 9962), available at 2000 WL 140928.
12 See Santa Fe, 530 U.S. at 295.
13 Id. at 319 (Rehnquist, C.J., dissenting).
14 180 F.3d 1254 (11th Cir. 1999) [hereinafter Chandler I].
15 250 F.3d 1330 (11th Cir. 2001) [hereinafter Adler I].
16 Chandler v. Seigelman, 530 U.S. 1256 (2000).
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what circumstances religious speech in schools can be considered private, and therefore, protected.”17 On remand, the Eleventh Circuit upheld the challenged Alabama statute permitting
student-initiated prayer by pronouncing the speech protected
under the guise of private speech.18 Similarly, the Court vacated the Adler decision and remanded it for further consideration in light of Santa Fe.19 Like Chandler, the Eleventh Circuit
reinstated its judgment and upheld a policy permitting high
school seniors to vote whether a student could deliver a message of that student’s choosing as part of graduation ceremonies.20 Unfortunately, the Court refused to review the Adler
ruling, thus causing greater confusion in this area of law. Frustrated by the lack of clarity on this issue, the lawyer challenging the Adler policy declared, “[t]here’s one rule for the 11th
Circuit, one rule for the 5th Circuit and, in my opinion, no rule
on this issue for the rest of the country.”21
Because school districts and lower courts do not have
clear guidance on school prayer issues, Establishment Clause
jurisprudence may be inconsistently applied in such cases.
Moreover, school districts that disagree with the Supreme
Court’s view of disallowing prayer at these school events may
subvert the Court’s stance on this issue through devious techniques. Therefore, it is imperative that the Court clarifies the
law and provides uniformity throughout the federal circuits
and the country. Part I of this Comment details the first school
prayer cases and the three different tests used in the Establishment Clause area. Part II details the development of the
public forum doctrine because school districts argue that this
doctrine shields their policies under the guise of the Free
Speech Clause. Part III discusses the Santa Fe decision. Lastly,
Part IV examines the Supreme Court’s analysis and the fundamental problems in the Court’s approach in Santa Fe, Chandler, and Adler and proposes a two-step analysis for this particular context. First, courts should apply forum analysis and
its categorical approach. Second, courts should conduct an Establishment Clause inquiry using an “any reasonable observer
17 230
F.3d 1313 (11th Cir. 2000) [hereinafter Chandler II].
Id.
19 Adler v. Duval County Sch. Bd., 531 U.S. 801 (2001).
20 250 F.3d 1330 (11th Cir. 2001) [hereinafter Adler II].
21 Savage, supra note 9, at 31.
18
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1295
endorsement test” version of the endorsement test.
I.
SUPREME COURT JURISPRUDENCE INVOLVING RELIGION
AND PRAYER IN SCHOOL
A.
The School Prayer Cases
An examination of the freedom of religion guaranteed
by the First Amendment necessarily begins in 1947 with Everson v. Board of Education of Ewing.22 In that case, the Supreme Court upheld the constitutionality of a New Jersey statute and a school board resolution passed pursuant to it which
allowed parents of parochial students to be reimbursed for the
transportation of their children on buses operated by the public
transportation system.23 Despite the approval of the statute
and resolution, the decision was filled with strong language
extolling the virtues of the First Amendment. Specifically, Justice Jackson declared in two sentences that proved enormously
influential as well as controversial, “the First Amendment has
erected a wall between church and state” and “[t]hat wall must
be kept high and impregnable.”24
Almost fifteen years
later, parents of public school students looked to the strength
of this “wall” to challenge the constitutionality of a state law
authorizing a school district to direct the use of prayer in public schools and of a school district’s regulation ordering the
recitation of a prayer.25 In Engel v. Vitale,26 the Court made
clear that these prayers were in violation of the Establishment
Clause because they were composed by “governmental officials
as part of a governmental program to further religious beliefs.”27 As a result, the Court found that the constitutional
22
330 U.S. 1 (1947).
See id. at 17.
24 Id. at 16.
25 See Engel v. Vitale, 370 U.S. 421, 422 (1962). The Board of Education directed the following prayer to be said aloud by each class in the presence of the teacher
at the beginning of each school day: “Almighty God, we acknowledge our dependence
upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” Id. at 426.
26 370 U.S. 421 (1962).
27 Id. at 425.
23
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prohibition against laws respecting an establishment of religion must mean that “in this country it is no part of the business
of government to compose official prayers for any group of the
American people to recite as part of a religious program carried
on by government.”28 The Court articulated that the Constitution was adopted to avert the dangers of a union of church and
state. The Court further stated, “one of the greatest dangers to
the freedom of the individual to worship in his own way lay in
the Government’s placing its official stamp of approval upon
one particular kind of prayer or one particular form of religious
services.”29 It did not matter to the Court whether the prayer
was denominationally neutral or that its observance was voluntary, for the Establishment Clause “rested on the belief that
a union of government and religion tended to destroy . . . and to
degrade religion.”30 The Cour t also noted that the Establishment Clause rested upon an awareness of the historical fact
that governmentally established religions and religious persecution were closely related.31 The Court noted that the Establishment Clause stood as an “expression of principle on the
part of the Founders of our Constitution that religion is too
personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.”32 The Court maintained that even
though the Regent’s prayer did not compare “to the governmental encroachments upon religion that occurred 200 years
ago,” it was significant enough to violate the Establishment
Clause.33
28
Id.
Id. at 429.
30 See id. at 431. The court noted that the history of England and America
“showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect, and even
contempt of those who held contrary beliefs.” Engel, 370 U.S. at 431.
31 See id. at 433.
32 Id. at 432.
33 See id. at 436. The Court quoted James Madison to emphasize this point:
It is proper to take alarm at the first experiment on our liberties. . . .
Who does not see that the same authority which can establish Christ ianity, in ex clusion of all other Religions, may establish with the same
ease any particular sect of Christians, in exclusion of all Sects? That
the same authority which can force a citizen to contribute three pence
only of his property for the support of any one estab lishment, may
force him to conform to any other establishment in all cases whatsoever?
Id. at 436.
29
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THE FALLEN BRICKS OF THE WALL
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Following Engel, the Court reinforced the “wall” when it
examined state action requiring schools to begin each day with
readings from the Bible in two companion cases. In School District of Abington v. Schempp,34 one set of plaintiffs, the
Schempp family, sued to enjoin the enforcement of a Pennsylvania statute requiring “[a]t least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.”35 The Schempps claimed that the
religious doctrines of the Bible were contrary to their religious
beliefs and to their familial teaching.36 Although the Pennsylvania statute did allow children to be excused from this reading upon written request from their parent or guardian, the
plaintiffs believed that this would adversely affect the children’s relationships with their teachers and classmates.37 In
the other case, plaintiffs Madalyn Murray and her son William
J. Murray III challenged a Baltimore City rule providing for
opening exercises in city schools that consisted primarily of
reading, without comment, a chapter in the Holy Bible and/or
the use of the Lord’s Prayer.38 The Murrays, both professed
atheists, claimed that the rule violated their rights in religious
freedom by placing a premium on belief over nonbelief and by
subjecting their freedom of consent to the majority rule.39 Utilizing the principles and language of several cases beginning
with Everson, the Court reaffirmed that the Establishment
Clause does more than forbid governmental preference of one
religion over another.40 The Court re-emphasized that “the first
and most immediate purpose of the Establishment Clause
rested on the belief that a union of government and religion
tends to destroy government and to degrade religion.”41 Like
New York’s program and policy in Engel, the opening exercises
were religious exercises imposed by the State in violation of the
First Amendment command that the government remain
strictly neutral without aiding or opposing religion.
34 374
U.S. 203 (1963).
Id. at 205.
36 See id. at 208.
37 See id.
38 Id. at 211.
39 Schempp, 374 U.S. at 212.
40 See id. at 216.
41 Id. at 221.
35
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The Three Tests Used by the Court to Examine Esta blishment Clause Violations
Following Everson and the school prayer cases, the Supreme Court utilized different tests and rationales to decide
Establishment Clause conflicts. A study of Court decisions reveals that three tests are used in modern Establishment
Clause jurisprudence.
1. The Lemon Test
In Lemon v. Kurtzman,42 the Court established a threeprong test for determining whether a statute violates the Establishment Clause. In this case, the Court addressed two appeals challenging Pennsylvania and Rhode Island statutes that
provided state aid to church-related elementary and secondary
schools. Pennsylvania had a statutory program that reimbursed private schools for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects.43 Rhode Island’s statute directly paid teachers in private
elementary schools a supplement of fifteen percent of their annual salary.44 Acknowledging the absence of precisely stated
constitutional prohibitions in this area, the Court set out to
unify the tests developed by it over several years. The Court
found that the Establishment Clause was created to protect
against the evils of sponsorship, financial support, and active
involvement of the sovereign in religious activity.45 Thus, the
Court created a tri-partite framework to determine whether a
statute violates the Establishment Clause. First, the statute
must have a secular legislative purpose; second, its principal or
primary effect must be one that neither advances nor inhibits
religion; finally, the statute must not foster “an excessive government entanglement with religion.”46
When applying the test, the Court relied primarily on
the third prong to find the statutes unconstitutional. It found
that both statutes involved several areas of excessive entan42
403 U.S. 602 (1971).
Id. at 607.
44 Id.
45 Id. at 612.
46 Id. at 612-13.
43
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THE FALLEN BRICKS OF THE WALL
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glement between government and religion. Under the Rhode
Island statute, the state had to inspect and evaluate the religious content of a religious organization.47 Likewise, the Pennsylvania statute gave rise to entanglements between church
and state with the same restrictions and surveillance necessary to ensure that teachers played a strictly non-ideological
role.48 In addition, the Court was concerned with the entanglement presented by the divisive political potential of these
state programs. Lastly, the Court concluded that “the Constitution decrees that religion must be a private matter for the individual, the family and the institutions of private choice, and
that while some involvement and entanglement are inevitable,
lines must be drawn.”49
Although the Supreme Court has not formally repudiated the Lemon test, many justices have criticized it.50 Because
the test is disjunctive, courts are free to choose which prong to
apply when analyzing Establishment Clause challenges.
2. The Endorsement Test
In an influential concurring opinion in Lynch v. Donnelly,51 Justice O’Connor created the “endorsement test” to
serve as a guide for Establishment Clause challenges. In
Lynch, the Court held that the city’s inclusion of a nativity
scene in its Christmas display was constitutional under the
Establishment Clause. Writing separately, Justice O’Connor
suggested an approach to clarify the Court’s Establishment
Clause doctrine. Justice O’Connor urged that “the proper inquiry under the purpose prong of Lemon . . . is whether the
government intends to convey a message of endorsement or
disapproval of religion.”52 Under the effect prong of the Lemon
test, she found that “what is crucial is that a government prac47
Lemon, 403 U.S. at 619.
See id. at 620.
49 Id. at 625.
50 One memorable example was Justice Scalia’s concurring opinion in Lamb’s
Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). He graph ically stated, “Like some ghoul in a late-night horror movie that repeatedly sits up in its
grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our
Establishment Clause jurisprudence once again . . . .” Id. at 398 (Scalia, J., concurring).
51 465 U.S. 668 (1984).
52 Id. at 691.
48
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tice not have the effect of communicating a message of government endorsement or disapproval of religion.”53
In County of Allegheny v. American Civil Liberties Union,54 the Court applied Justice O’Connor’s endorsement test
when it evaluated the constitutionality of two recurring holiday
displays located on public property in downtown Pittsburgh.
Justice Blackmun’s majority opinion found that Justice
O’Connor’s concurrence in Lynch provided a sound analytical
framework for Establishment Clause cases.55 Adopting this
framework, Justice Blackmun pointed out the test’s guiding
principles. First, any endorsement of religion is invalid because
it “sends a message to nonadherents that they are outsiders,
not full members of the political community, and an accomp anying message to adherents that they are insiders, favored
members of the political community.”56 Second, “the effect of
the display depends upon the message that the government’s
practice communicates” and “what viewers may fairly understand to be the purpose of the display.”57 In this regard, “every
government practice must be judged in its unique circumstances to determine whether it endorses religion.”58 Therefore,
under this framework, the Court must ascertain whether “the
challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their
individual religious choices.”59 To determine this, the Court
found that the constitutionality of the display’s effect “must [ ]
be judged according to the standard of a ‘reasonable observer’.”60 Using these considerations, the Court held that it “is
not ‘sufficiently likely’ that residents of Pittsburgh will perceive the combined display . . . as an ‘endorsement’ or ‘disapproval’ . . . of their individual religious choices.”61 Therefore,
the Court held that “the city’s overall display must be understood as conveying the city’s secular recognition of different
53
Id. at 692.
U.S. 573 (1989).
55 See id. at 595.
56 Id.
57 Id.
58 Id.
59 Allegheny, 492 U.S. at 597.
60 Id. at 620.
61 Id. at 619.
54 492
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traditions for celebrating the winter-holiday season.”62
3. The Coercion Test
Lastly, in Lee v. Weisman,63 the Court enunciated the
“coercion test” for analyzing Establishment Clause challenges.
It held that (1) the principle that government may accommodate the free exercise of religion does not supersede the fund amental limitations imposed by the Establishment Clause; and
(2) it is beyond dispute that, at a minimum, the Constitution
guarantees that government may not coerce anyone to support
or participate in religion or its exercise, or otherwise act in a
way which establishes a state religion or religious faith, or
tends to do so.64
Because the facts and questions addressed in Lee are
closely analogous to Santa Fe, an in-depth look at this case is
helpful. In Lee, the Court addressed whether including clerical
members who offer prayers as part of an official school graduation ceremony was consistent with the Religion Clauses of the
First Amendment.65 The public school system of Providence,
Rhode Island had a policy that permitted principals to invite
members of the clergy to give invocations and benedictions at
middle school and high school graduations.66 It was customary
for Providence school officials to provide invited clergy with a
pamphlet entitled “Guidelines for Civic Occasions.”67 A middle
school principal, Robert E. Lee, invited Rabbi Leslie Gutterman to deliver prayers at the graduation exercises.68 Lee gave
Gutterman the pamphlet before the graduation and advised
him that the invocation and benediction should be nonsectarian.69 Attendance by graduating students at all Providence
62
Id. at 620.
505 U.S. 577 (1992).
64 See Santa Fe, 530 U.S. at 302.
65 Lee, 505 U.S. at 580.
66 See id. at 581.
67 Id. at 581. The National Conference of Christians and Jews prepared the
pamphlet. The Guidelines recommended that public prayers at nonsectarian civic
ceremonies be composed with “inclusiveness and sensitivity” though they acknowledge
that “prayer of any kind may be inappropriate on some civic occasions.” Id.
68 Rabbi Gutterman belonged to the Temple Beth El in Providence. See Lee,
505 U.S. at 581.
69 Rabbi Gutte rman’s prayers were as follows:
Invocation:
63
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middle schools and high schools was voluntary.70
The Court began its analysis by indicating that it was
not required to reconsider its decision in Lemon, because the
government involvement with religious activity in this case
was so pervasive that it created a “state-sponsored and statedirected religious exercise in a public school.”71 The Court
noted that although the government may accommodate the
free exercise of religion, it must abide by the limitations of the
Establishment Clause.72 The Court found that Lee’s decisions
to have an invocation and benediction; choose the religious participant; and provide a Rabbi with guidelines and advice were
troubling and attributable to the State.73 The Court maintained that these decisions violated the principle of Establishment Clause jurisprudence because “it is no part of the business of government to compose official prayers for any group of
the American people to recite as a part of a religious program
God of the Free, Hope of the Brave: For the legacy of America where
diversity is celebrated and the rights of minorities are protected, we
thank You. May these young men and women grow up to enrich it. For
the liberty of America, we thank You. May these new graduates grow
up to guard it. For the political process of America in which all its cit izens may participate, for its court system where all may seek justice
we thank You. May those we honor this morning always turn to it in
trust. For the destiny of America we thank You. May the graduates of
Nathan Bishop Middle School so live that they might help to share it.
May our aspirations for our country and for these young people, who
are our hope for the future, be richly fulfilled.
Benediction:
O God, we are grateful to You for having endowed us with the capacity
for learning which we have celebrated on this joyous commencement.
Happy families give thanks for seeing their children achieve an impo rtant milestone. Send Your blessings upon the teachers and administrators who helped prepare them. The graduates now need strength
and guidance for the future, help them to understand that we are not
complete with academic knowledge alone. We must each strive to fu lfill what You require of us all: To do justly, to love mercy, to walk
humbly. We give thanks to You, Lord, for keeping us alive, sustaining
us and allowing us to reach this special, happy occasion. Amen.”
Id.
70 See id. at 583.
71 See id. at 587.
72 See Lee, 505 U.S. at 587. The Court maintained that “the Constitution
guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith or tends to do so.” Id. (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)).
73 See id. at 587-88.
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THE FALLEN BRICKS OF THE WALL
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carried on by government.”74
In addition, the Court maintained that the Religion
Clauses stand for the principle that religious beliefs and expression are too precious to be either “proscribed or prescribed
by the State.”75 Instead, “the preservation and transmission of
religious beliefs and worship is a responsibility and a choice
committed to the private sphere . . .”76 In addition, the Court
maintained that while the efforts of the school officials to find
common ground were a good-faith attempt to recognize common aspects of religion, prior case law prohibited school officials from participating in this act.77 The Court then determined that “the degree of school involvement here made it
clear that the graduation prayers bore the imprint of the State
and thus put school-age children who objected in an untenable
position.”78
The Court then concentrated on the ceremonies’ effect
on students. Here, the Supreme Court rejected as formalistic
the argument that the graduation was voluntary.79 The Court
recognized that graduation is an important and valuable experience for students and their families.80 Moreover, the Court
maintained that while these religious prayers would be important to some students, these same prayers would amount to
religious conformity with other students.81
Further, the Court rejected arguments comparing the
public school system to sessions of a state legislature.82 The
Court noted that at graduation teachers and principals must
74
Id. at 588. (quoting Engel, 370 U.S. at 425).
Id. at 589.
76 Lee, 505 U.S. at 589.
77 See id. at 590.
78 Id.
79 See id. at 591. The Court declared, “to say teenage student has a real choice
not to attend her high school graduation is formalistic in the extreme.” Id. at 591.
80 See Lee, 505 U.S. at 591.
81 Id. at 595-96. The Court further elaborated, “[t]he Constitution forbids the
State to exact religious conformity from a student as the price of attending her own
high school graduation.” Id. at 596.
82 See id. at 596-97. Here, the Court distinguished its decision in Marsh v.
Chambers, 463 U.S. 783 (1983), where it decided that clergy-delivered prayer before a
session of a state legislature was constitutional. The court explained that “[t]he atmosphere at the opening of a session of a state legislature where adults are free to enter
and leave with little comment and for any number of reasons cannot compare with the
constraining potential of the one school event most important for the student to attend.” Lee, 505 U.S. at 596-97.
75
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and do retain “a high degree of control over the precise contents of the program, the speeches, the timing, the movements,
the dress, and the decorum of the students.”83 The Court then
found that “[i]n this atmosphere the state-imposed character of
an invocation and benediction by clergy selected by the school
combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to
submit.”84
Lastly, the Court acknowledged that it is not constitutional to exclude religion from every aspect of public life.85 Further, the Court recognized that there are instances where religious values, practices, and purposes will interact with public
schools and their students.86 However, the Court maintained
that these were different issues. The Court found that here it
faced the sole question of “whether a religious exercise may be
conducted at a graduation ceremony in circumstances where . .
. young graduates who object are induced to conform.”87 Thus,
the Court held that the invocation and benediction given by the
Rabbi at the commencement ceremony were forbidden by the
Establishment Clause.88
4. Analysis of Tests
Because of the changing make-up of the Supreme Court,
different tests and rationales have been applied to Establishment Clause challenges. Throughout the 1970s, the Court utilized the Lemon framework and its separationist vision.89 The
Supreme Court has not formally renounced the Lemon test, but
no majority has relied on it to invalidate any practice since
1985. 90 In Santa Fe, Chief Justice Rehnquist pointed out that
“we have even gone so far as to state that it has never been
binding on us.”91 Also, the Chief Justice declared that in Lee
83
Id. at 597.
Id.
85 See id. at 598.
86 See id. at 599.
87 Lee, 505 U.S. at 599.
88 See id.
89 See Ira C. Lupu, The Lingering Death of Separationism, 62 GEO. WASH. L.
REV . 230, 236 (1993).
90 See G ARVEY & SCHAUR, supra note 7, at 525.
91 Santa Fe, 530 U.S. at 319 (Rehnquist, C.J., dissenting).
84
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the Court “mentioned, but did not feel compelled to apply the
Lemon test.”92
In 1989, a five-Justice majority accepted a version of the
endorsement test.93 However, the replacement of Justices
Brennan, Marshall, and White with Justices Souter, Thomas
and Ginsburg creates doubt whether the endorsement test can
still command a majority.94 In Lee, a narrow majority of the
Court enunciated the coercion test to strike down the graduation policy. Writing for the Court, Justice Kennedy expressed
his view that coercion is a necessary element of an Establishment Clause violation.95
Although the Santa Fe Court claimed to rely on the
principles of Lee, the language of the endorsement test appeared throughout the Santa Fe opinion.96 In addition, the
Court employed two of Lemon’s prongs to analyze the issue.97
Thus, the Court utilized different principles and different tests
to analyze this specific Establishment Clause area. Such an
approach fails to provide a coherent analysis for circuits confronting this issue. The Court’s analysis of the Establishment
Clause challenges should provide clearer guidance to lower
courts.
II.
THE PUBLIC FORUM DOCTRINE
When the Santa Fe School District defended the constitutionality of its pre-game football policy, it argued that its policy permitted private student speech, not government speech.98
In making this argument, the school district relied on the Free
Speech Clause cases that protected religious speech under the
public forum doctrine.99 As a result, the Court examined these
92
Id. at 320.
See Allegheny v. A.C.L.U., 492 U.S. 573 (1989).
94 See Lupu, supra note 89, at 240.
95 See Lee, 505 U.S. at 587 (finding “[i]t is beyond dispute that, at a minimum,
the Constitution guarantees that government may not coerce anyone to support or
participate in religion or its exercise. . . .”).
96 See supra Part IV.B. (discussing the mixing and matching of different Establishment Clause tests).
97 The Court discussed the secular legislative purpose prong and the entanglement prong.
98 See Santa Fe, 530 U.S. at 203.
99 See Petitioner’s Brief at 45-46, Santa Fe v. Doe, 530 U.S. 290 (2000) (No. 9993
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cases and found that “an individual’s contribution to government-created forums was not government speech.”100 The
Court found these cases distinguishable, but stated “a conclusion that the District had created a public forum would shed
light on whether the resulting speech is public or private . . .”101
Therefore, it is likely that school districts in the future will argue their policies create public forums and only authorize protected private speech.102 Thus, it is necessary to examine the
development of the public forum doctrine analysis and its effects on student led prayer in this particularized area.
A.
The Development of the Public Forum Doctrine Analysis
Because the First Amendment cannot guarantee the individual an absolute right to use publicly owned property for
expressive purposes, the Court developed the public forum
analysis. This analysis has evolved along two interrelated
tracks. One line of analysis governs streets and parks and the
other analysis governs all other publicly-owned property.
In United States v. Grace,103 the Court held that the
government’s ability to restrict expression on public sidewalks
is very limited. The Court found that the government may enforce reasonable time, place, and manner restrictions only if
the restrictions are content-neutral, narrowly tailored to serve
a significant government interest, and leave open ample alternative channels of communication.104 Lastly, the Court stated
it may absolutely prohibit “a particular type of expression” only
if the prohibition is “narrowly drawn to accomplish a compelling governmental interest.”105
62), available at 1999 WL 1269325. The petitioners argued that the Free Speech
Clause precludes discrimination against religious speech and relied on Pinette, Lamb’s
Chapel, and Rosenberger. These cases are discussed, infra, in this section.
100 See Santa Fe, 530 U.S. at 302.
101 See id. at 303 n.13 (2001).
102 In fact, the Eleventh Circuit reinstated its en banc opinion that found a
school district policy very similar to that in Santa Fe “can be analogized to a line of
open forum cases” including Mergens, Pinette and Lamb’s Chapel. See Adler v. Duval
County School Board, 206 F.3d 1070 (11th Cir. 2001), discussed, infra Part IV D.
103 461 U.S. 171 (1983).
104 See id. at 177 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45 (1983)).
105 Id.
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Under modern public forum doctrine, the Supreme
Court takes a categorical approach. As a result, the critical issue is whether the public place to which access is being sought
is a public forum. In Perry Education Ass’n v. Perry Local
Educators’ Ass’n,106 the Court identified in great detail the
three different types of forums. These principles were reaffirmed fifteen years later in Arkansas Educational Television
Commission v. Forbes.107
In Perry, the Court noted that the existence of a right of
access to public property and the standards to evaluate limitations depended on the character of the property at issue.108 The
first type of forum is the “quintessential public forum” where
the government may not prohibit all communicative activity.109
The Court noted that when the state wanted to enforce a content-based exclusion it must show that its regulation was necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.110
The second type of forum is the “designated” or “limited
public forum,” which is public property that the state opened
for use by the public as a place for expressive activity.111 This
type of forum is “created by purposeful governmental action.”112
In determining whether the state has transformed its property
into a designated public forum, the court looks at two factors.
First, the court looks to governmental intent. Here, “the government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse.”113 Therefore, “the court has looked to the policy and
practice of the government to ascertain whether it intended to
designate a place not traditionally open to assembly and debate
as a public forum.”114 Other indicia of intent115 include the na106 460
U.S. 37 (1983).
U.S. 666 (1998).
108 See Perry, 460 U.S. at 45.
109 Id. These places are by long tradition or by government fiat devoted to assembly and debate such as streets and parks which “have immemorially been held in
trust for the use of the public, and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions.”
110 Id. at 45.
111 See id.
112 Forbes, 523 U.S. at 677.
113 Id. at 677.
114 Id.
107 523
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ture of the state property and its compatibility with expressive
activity. Second, the court examines the extent of the use
granted. In order to create the designated forum, the “government must allow ‘general access’ to or ‘indiscriminate use’ of
the forum in question by the general public, or by particular
speakers, or for the discussion of designated topics.”116
Although the state is not required to indefinitely retain
the open character of the forum, as long as it does so, however,
it is bound by the same standards as apply in a traditional
public forum.117 As a result, “[r]easonable time, place and
manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling
state interest.”118
The third type of forum is the “non-public forum.” This
is “public property which is not by tradition or designation a
forum for public communication.”119 Here, “[i]n addition to
time, place, and manner regulations, the state may reserve the
forum for its intended purposes, communicative or otherwise,
as long as the regulation on speech is reasonable and not an
effort to suppress expression merely because public officials
oppose the speaker’s view.”120
B.
The Interaction between the Public Forum Doctrine and
the Establishment Clause
In some situations, a state entity may exclude a religious group or speaker from a public forum based on the content of the group’s intended speech. The state entity will claim
a compelling state interest in maintaining separation of church
and state in compliance with the Establishment Clause. This
inevitably creates a tension between the public forum doctrine
and the Establishment Clause. The Supreme Court faced this
situation in 1981 in the case of Widmar v. Vincent.121
115
See id. at 673.
Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 820 (5th Cir. 1999) (quoting Perry, 460 U.S. at 47).
117 See Perry, 460 U.S. at 45.
118 Id. at 46.
119 See id. at 46.
120 See id.; Forbes, 523 U.S. at 678.
121 454 U.S. 263 (1981).
116
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Here, the Court considered whether a state university,
which made its facilities generally available for the activities of
registered student groups, could close its facilities to a registered student group for religious worship and religious discussion.122 The University of Missouri at Kansas City encouraged
the activities of student organizations, officially recognized
over one hundred student groups, and provided facilities for
the meetings of registered organizations.123 For four years, a
registered religious group named Cornerstone regularly conducted meetings in university facilities.124 In 1977, the university informed the students that they were no longer allowed to
meet in university buildings because of a regulation prohibiting the use of university buildings or grounds “for purposes of
religious worship or religious teaching.”125 As a result, eleven
student-members of Cornerstone brought suit alleging that the
university’s discrimination against religious activity and discussion violated their rights to free exercise of religion, equal
protection, and freedom of speech under the First and Fourteenth Amendments.126
First, the Court examined the university’s policy under
the public forum doctrine. It found that the university had created a limited public forum generally open for use by student
groups which created an obligation to justify its discriminations and exclusions under applicable constitutional norms.127
The Court opined that the university discriminated against
this group based on the group’s desire to use a generally open
forum to engage in religious worship and discussion.128 There122
Id. at 264.
See id. at 265. The students paid an activity fee per semester to help defray the costs.
124 See id. The group was an organization of evangelical Christian students
from various denominational backgrounds. The meetings attracted up to 125 students
and included prayer, hymns, Bible commentary, and discussion of religious views. See
id.
125 Widmar, 454 U.S. at 265.
126 See id. at 266.
127 See id. at 268. In a footnote, the Court recognized that prior cases have
recognized two important principles applied in the classroom setting. First, the Court
noted students enjoy First Amendment rights of speech and association on the campus,
and that the denial to particular groups of use of campus facilities for meetings and
other appropriate purposes must be subjected to the level of scrutiny appropriate to
any form of prior restraint. Second, the Court noted that First Amendment rights must
be analyzed in light of the special characteristics of the school environment. See id.
128 See id.
123
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fore, the Court stated that in order to justify this content-based
exclusion, the university must show that its regulation “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”129 In this case, the university
claimed that the compelling state interest was maintaining
strict separation of church and state under the federal and
Missouri constitutions.130 The Court agreed that the university
had a compelling interest in complying with its constitutional
obligations.131 But, the Court refused to find that an “equal access” policy would always be incompatible with its Establishment Clause cases. Instead, the Court held that “a policy will
not offend the Establishment Clause if it can pass” the threepronged Lemon test.132
Applying the Lemon test, the Court quickly concluded
that the first secular purpose prong and the third entanglement prong were “clearly met.”133 As to the second prong, ho wever, the Court explained in more detail how the limited public
forum would not have the primary effect of advancing religion.
The Court maintained that because the university opened its
facilities for use by student groups, the focus was whether it
could now exclude groups because of the content of their
speech.134 The Court explained that although religious organizations may benefit from the forum, these “incidental” benefits
did not violate the prohibition against the “primary advancement” of religion.135 In making this determination, the Court
found two factors especially relevant. First, the open forum in a
public university did not confer any “imprimatur of state ap-
129
Widmar, 454 U.S. at 270.
See id.
131 See id. at 271.
132 Id.
133 Id. at 271. The Court noted that the District Court and the Court of Appeals both held that an open-forum policy, including nondiscrimination against religious speech, would have a secular purpose and would avoid entanglement with religion. See id.
134 See Widmar, 454 U.S. at 273. In a footnote, the Court explained that this
case is different from cases in which religious groups claim that the denial of facilities
not available to other groups deprives them of their rights under the Free Exercise
Clause. Here, the University’s forum is already available to other groups, and the
claim to use that forum does not rest solely on rights claimed under the Free Exercise
Clause. Instead, the claim implicates First Amendment rights of speech and association. See id.
135 Id. at 274.
130
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proval on religious sects or practices.”136 Second, the forum was
available to a broad class of nonreligious as well as religious
speakers.137 Thus, the Court held that the advancement of religion would not be the forum’s “primary effect” and struck
down the university’s policy as unconstitutional under the
First Amendment.138
Several years later, in Board of Education of Westside
Community v. Mergens,139 the Court considered whether the
federal Equal Access Act violated the Establishment Clause.140
In Westside public High School, the school board encouraged
the creation of student-run clubs and other organizations as a
vital part of the education program.141 Students trying to form
clubs presented their request to a school official who determined whether the club’s goals and objectives were consistent
with school board policies.142 In 1985, a student requested permission to form a Christian club at the school. The proposed
club would have the same privileges, terms, and conditions as
other Westside student groups, except that the club would not
have a faculty sponsor.143 The request was denied because the
policy required clubs to have a faculty sponsor and the club
would violate the Establishment Clause.144 As a result, the
students sought injunctive relief alleging that the refusal to
permit the proposed club to meet at the school violated the federal Equal Access Act145 and the First Amendment. In response, the defendants argued that the Equal Access Act did
not apply to the school and that, if it did apply, it violated the
136
Id.
See id. at 275.
138 Widmar, 454 U.S. at 275.
139 496 U.S. 226 (1990).
140 See id. at 231-47.
141 See id. at 231.
142 See id. at 232.
143 See id. According to the student, the club’s purpose would have been to
permit the students to read and discuss the Bible, to have fellowship, and to pray together. Also, membership would be “voluntary and open to all students.” Mergens, 496
U.S. at 232.
144 See id. at 233.
145 See id. The Equal Access Act, 20 U.S.C. §§ 4071 et. seq. (1994), prohibits
“public secondary schools that receive federal financial assistance and that maintain a
‘limited open forum’ from denying ‘equal access’ to students who wish to meet within
the forum on the basis of the content of the speech at such meetings.” Mergens, 496
U.S. at 233.
137
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Establishment Clause.146 The United States intervened to defend the constitutionality of the Equal Access Act.147
The Court held that the denial of the request to form
the Christian club violated the Equal Access Act.148 The Court
rested its conclusion on statutory grounds and did not decide
whether the First Amendment required the same result.149 The
Court found that the logic of its decision in Widmar applied to
the Equal Access Act and secondary school students.150 The
Court opined that the Act’s prohibition against discrimination
on the basis of “political, philosophical or other speech as well
as religious speech is a sufficient basis for meeting the secular
purpose prong of the Lemon test.”151 The Court also found that
because the Act on its face granted equal access to both secular
and religious speech the “Act’s purpose was not to endorse or
disapprove of religion.”152
Petitioners argued that the Act had the primary effect
of advancing religion.153 The Court disagreed. First, the Court
noted that “there is a crucial difference between government
speech endorsing religion, which the Establishment Clause
forbids, and private speech endorsing religion, which the Free
Speech and Exercise Clauses protect.”154 Further, the Court
opined that secondary school students were mature enough to
understand that a school does not endorse or support student
speech that it merely permits on a nondiscriminatory basis.155
Second, the Court found that the Act expressly limited participation by school officials at meetings of student religious
groups and that any such meetings were to be held during no n-
146
Id.
Id.
148 See id. at 247. This statute, passed in 1984, extended the reasoning of
Widmar to public secondary schools. See id. at 235.
149 See Mergens, 496 U.S. at 247.
150 See id. at 247 (finding that a similar equal access policy at the university
level was constitutional under the Lemon test).
151 Id. at 248.
152 Id.
153 See id. at 249.
154 Mergens, 496 U.S. at 250.
155 See id. To back up this proposition, the Court noted that Congress specifically rejected the argument that high school students are likely to confuse an equal
access policy with state sponsorship of religion. See id.
147
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THE FALLEN BRICKS OF THE WALL
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instructional time.156 Lastly, the Court found that “the broad
spectrum of officially recognized student clubs at Westside, and
the fact that Westside students were free to initiate and organize additional student clubs counteracted any message or official endorsement of or preference for religion.”157
Finally, petitioners claimed that by complying with the
Act’s requirements, the school risked excessive entanglement
between government and religion.158 The Court rejected this
argument because the Act mandated that faculty monitors
could not participate in any religious meetings and school officials could not promote, lead, or participate in any such meeting.159 The Court held that a denial of equal access to religious
speech might create “greater entanglement problems in the
form of invasive monitoring to prevent religious speech at
meetings at which such speech may occur.”160 Thus, the Court
held that the Equal Access Act did not violate the Establishment Clause.
In Lamb’s Chapel v. Center Moriches Union Free Dis161
trict, the Court invalidated a school district rule that permitted after-school social, civic, and recreational uses of school
property, but prohibited the use of such property for religious
purposes.162 In Lamb’s Chapel,163 an evangelical church group
was twice denied permission to use school facilities by the
school district.164 The church brought suit challenging the denial as a violation of the Free Speech and Assembly Clauses,
the Free Exercise Clause of the First Amendment, as well as
the Equal Protection Clause.165
156
See id. at 251.
Id.
158 See Mergens, 496 U.S. at 252.
159 See id. at 253.
160 Id.
161 508 U.S. 384 (1993).
162 See id. at 387. The Board of Center Moriches Union Free School District
was empowered under New York Education Law § 414 to adopt reasonable regulations
for the use of school property for ten specified purposes when the property was not in
use for school purposes. The Board issued rules and regulations which allowed for only
two of the purposes listed in § 414. Rule 7 provided that the school premises shall not
be used by any group for religious purposes. See id.
163 508 U.S. 384.
164 See id. at 385. The District denied the first application saying that “this
film does appear to be church related.” The second application was denied using identical language. Id. at 388.
165 See id. at 387.
157
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Both the district court and court of appeals rejected the
church’s argument that the district had opened its property for
a wide variety of communicative purposes creating a designated public forum. Finding that it did not have to rule on
whether the courts below were correct on the forum issue, the
Court analyzed the case as a nonpublic forum.166 Next, the
Court focused on the court of appeals’ conclusion that Rule 7’s
total ban on using district property for religious purposes was
reasonable and viewpoint neutral. Here, the Court found that
the critical question regarding Rule 7 was whethe r it discriminated on the basis of viewpoint to permit school property to be
used for the presentation of all views about family issues except those dealing with the subject matter from a religious
standpoint.167 In this regard, the Court found that the district
impermissibly denied the application because the presentation
would have been from a religious perspective.168 The district
argued that to permit its property to be used for religious purposes would be an establishment of religion forbidden by the
First Amendment.169 The Court rejected this argument by utilizing the Widmar decision.170 The Court found that the fear of
violating the Establishment Clause was unfounded because the
showing of the film series: (1) would not have been during
school hours, (2) would not have been sponsored by the school,
and (3) would have been open to the public, not just to church
members.171 Therefore, the Court held, there would be no danger that the community would think that the district was en166 See id. at 392. The Court cited Perry for the principle that “control over access to a nonpublic forum can be based on subject matter and speaker identity so long
as the distinctions drawn are reasonable in light of the purpose served by the forum
and are viewpoint neutral.” Lamb’s Chapel, 508 U.S. at 393 (citing Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983)).
167 See Lamb’s Chapel, 508 U.S. at 393.
168 See id. at 394. The Court found inconsistent with prior precedent that “although a speaker may be excluded from a non-public forum if he wishes to address a
topic not encompassed within the purpose of the forum . . . or if he is not a member of
the class of speakers for whose benefit the forum was created . . . the government violates the First Amendment when it denies access to a speaker solely to suppress the
point of view he espouses on an otherwise includible subject.” Id.
169 See id. at 394.
170 See Lamb’s Chapel, 508 U.S. at 394. The Court recognized that the Court
held that permitting use of university property for religious purposes under the open
access policy involved there would not be incompatible with the Court’s Establishment
Clause cases. See id.
171 See id. at 395.
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dorsing religion and any benefit to religion would be incidental.172 Lastly, the Court quickly and summarily stated that
there would not have been an establishment of religion under
the Lemon test.173
In the cases above, the Court allowed religious speech to
occur in public schools. However, these school districts took
affirmative steps to open its facilities to several different types
of speakers and speech. Once these facilities were open for ge neral access, the Court applied strict scrutiny to the districts’
content-based exclusion of religious speech. Although the
schools claimed a compelling governmental interest in separating church and state, the Court upheld these policies under the
Establishment Clause. Therefore, one can see that the Court is
not engaged in balancing free speech interests against the Establishment Clause. Instead, the Court is demonstrating its
contempt for content-based exclusions in a particular forum
opened for expressive activities. Furthermore, because the public forum doctrine implicates strict scrutiny, one can point to
Professor Gerald Gunther’s characterization of this standard of
review as “‘strict’ in theory and fatal in fact.”174
As a result, school districts have an incentive to claim
their pre-game policies are protected under these cases. But,
before granting this protection, lower courts must remember
why creating a limited public forum avoids many of the evils of
uniting church and state. First, the schools’ policies discussed
above allowed for equal access to the facilities for a broad range
of speech. Second, the type of religious speech was not subjected to a vote. Therefore, students did not decide whether the
facilities would be used for Buddhist, Christian, or other religious expressive activity. Third, the religious groups utilized
these facilities privately for their own expressive activity. As a
result, the school facilities were not filled with unwilling students subjected to different religious views. These students
were not faced with the inevitable fate of attending a school
172
See id.
See id. The Court simply stated that “the challenged governmental action
has a secular purpose, does not have the principal or primary effect of advancing or
inhibiting religion, and does not foster an excessive entanglement with religion.”
Lamb’s Chapel, 508 U.S. at 395.
174 Gerald Gunther, The Supreme Court 1971 Term—Foreward: In Search of
Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86
HARV . L. REV . 1, 8 (1972).
173
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function and being subjected to religious viewpoints by the organs of the state. Instead, the students uninterested in these
views did not have to attend the meetings. Therefore, it is evident that pre-game ceremonies do not possess these important
safeguards and characteristics. It is imperative that lower
courts understand when a public forum doctrine is created and
its implications. Thus, lower courts must not bestow protection
on unworthy forums ill suited for the expressive activity of several different speakers.
III.
SANTA FE V. DOE
A.
Facts
The Santa Fe Independent School District (“SFISD”) is
a political subdivision of Texas,175 responsible for the education
of more than 4,000 students in a small community in the
southern part of the state.176 The respondents, the Does, were
two sets of current or former students and their mothers.177
One family is Mormon and the other is Catholic. 178
In April 1995, the Does moved for a temporary restrai ning order to prevent the SFISD from violating the Establishment Clause at the up coming graduation exercises.179 In their
complaint, the Does alleged that the SFISD engaged in many
proselytizing practices including: (1) promoting attendance at a
175
See Santa Fe, 530 U.S. at 295.
See id. at 295. This includes the Santa Fe High School, two primary
schools, an intermediate school, and the junior high school.
177 See id. In order to protect the respondents from intimidation and harassment, the district court allowed them to litigate anonymously (as “Doe”).
178 See id.
179 Id. at 295.
176
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Baptist revival meeting; (2) encouraging membership in religious clubs; (3) chastising children who held minority religious
beliefs; and (4) distributing Gideon Bibles on school premises.180 In addition, the Does alleged that the SFISD permitted
students to read Christian invocations and benedictions from
the stage at graduation ceremonies and to deliver overtly
Christian prayers over the public address system at home football games.181
In May 1995, the district court entered an interim order.182 First, the order provided that for the impending graduation a “non-denominational prayer” consisting of “an invocation
and/or benediction” could be presented by a senior student or
students selected by members of the graduating class.183 Second, the text of the prayer was to be determined by the students, without scrutiny or preapproval by school officials.184
Finally, references to particular religious figures, such as Mohammed, Jesus, or Buddha, would be permitted, “as long as
the general thrust of the prayer is nonproselytizing.”185
In response to the order, the SFISD adopted policies for
the graduation ceremonies (“July policy” or “graduation policy”)
and the football games (“August policy” or “football game policy”).186 Both policies authorized two student elections. The
first election determined whether “invocations” should be delivered and the second selected the spokesperson to deliver
them.187 Similar to the graduation policy, the football game
policy contained two parts. First, an initial statement omitted
any requirement that the content of the invocation be “nonsectarian and nonproseltyising.”188 Second, the football game policy contained a fallback provision that automatically added
that limitation if the preferred policy was enjoined.189
On August 31, 1995, the district’s high school students
voted and chose to allow a student to say a prayer at varsity
180
See Santa Fe, 530 U.S. at 295.
See id.
182 See id.
183 See id
184 Id. at 294.
185 Santa Fe, 530 U.S. at 294.
186 See id. at 296.
187 Id.
188 Id.
189 See id. at 296.
181
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football games.190 Then, in a separate election, they selected a
student to deliver the prayer.191 Following these events, the
SFISD enacted an October policy, similar to the August policy.192 One change was that it omitted the word “prayer” from
its title. Although changes were made to the August policy, the
school did not conduct another election to supersede the results
of the August policy.193
In an order, the district court precluded enforcement of
the October policy without the portion requiring “any message
and/or invo cation delivered by a student must be nonsectarian
and nonproselytizing.”194 Applying the coercion test, the court
held that the graduation prayers “appealed ‘to distinctly Christian beliefs,’ and that delivering a prayer ‘over the school’s public address system prior to each football and baseball games
coerces student participation in religious events.’”195 Subsequently, both parties appealed. SFISD argued that the enjoined portion of the October policy was
permissible.196 Whereas, the Does argued that both alternatives violated the Establishment Clause.197
B.
The Fifth Circuit Opinion
When Santa Fe reached the Fifth Circuit Court of Appeals, it was not a case of first impression. In Jones v. Clear
Creek Independent School District,198 the Fifth Circuit established a rule that student-led prayer is permitted as part of a
school’s program at graduation if it is approved by vote of the
students and if it is nonsectarian and nonproselytizing. After
this decision, Mississippi attempted to codify the Clear Creek
prayer policy and apply it throughout the public schools. Its
statute authorized “nonsectarian, nonproselytizing studentinitiated voluntary prayer at all school related events, whether
190
Santa Fe, 530 U.S. at 296.
Id.
192 See id. at 298.
193 Id.
194 Id. at 299.
195 See Santa Fe, 530 U.S. at 299.
196 See id.
197 See id.
198 977 F.2d. 963 (5th Cir. 1992).
191
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THE FALLEN BRICKS OF THE WALL
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compulsory or noncompulsory.”199 However, a federal district
court entered an injunction against implementation of the
statute in all its applications except graduation.200 After an
appeal, the Fifth Circuit affirmed and declined to reconsider
the Clear Creek decision.201
Although the Fifth Circuit endorsed its Clear Creek policy at graduations, it distinguished athletic events. In Doe v.
Duncanville Independent School District,202 the Fifth Circuit
affirmed a preliminary injunction against school-encouraged
prayer “during curricular or extra-curricular activities, including before, during, or after school-related sporting events.”203 In
a later appeal, the Duncanville school district relied on Clear
Creek to attack the provision of the injunction forbidding school
employees from supervising or participating in prayer initiated
by students.204 In affirming the injunction, the Fifth Circuit
held “that high school graduation is a significant, once-in-alifetime event,” and that the athletic events were “a setting
that is far less solemn and extraordinary.”205
Under this precedent, the Fifth Circuit analyzed
SFISD’s July policy and discussed: (1) whether the July policy
was designed to solemnize its graduation ceremony and thus
satisfy the Lemon test’s secular purpose requirement;206(2)
whether without the nonsectarian, nonproselytizing restrictions SFISD’s modified Clear Creek prayer policy fail Lemon’s
primary effect prong;207 (3) whether SFISD’s prayer policy violate the endorsement test because the government has appeared to take a position on questions of religious belief or has
conveyed a message that religion is favored, preferred, or promoted over other beliefs;208 (4) whether the SFISD policy vio199
MISS . CODE ANN. § 37-B-4.1(2) (1986).
See Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss.
1994), aff’d 88 F.3d 274 (5th Cir. 1996).
201 See Ingebretsen, 88 F.3d at 280.
202 994 F.2d 160 (5th Cir. 1993).
203 Id. at 163.
204 Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir. 1995).
205 Id. at 406-07.
206 See Doe v. Santa Fe, 168 F.3d 806, 815 (5th Cir. 1999) [hereinafter Doe].
207 See id. at 816. The court labeled SFISD’s policy a modified Clear Creek
prayer policy because the policy did not limit speakers to nonsectarian, nonproselytizing invocations and benedictions. Most of the opinion was dedicated to SFISD’s attack
on the Clear Creek requirements.
208 Id. at 817.
200
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late the coercion test;209 (5) whether the SFISD through its
July policy created a limited public forum;210 and (6) whether
the Clear Creek prayer policy’s “nonsectarian” and nonproselytizing” requirement can be extended to football games through
the SFISD’s October policy.211
In its secular purpose analysis under Lemon, the court
began by noting that deference must be paid to a government’s
articulation of a secular purpose. However, the court cautioned
that a government’s statement of secular purpose cannot be a
mere “sham.”212 With this in mind, the court examined the July
policy and its effects on the graduation ceremony. First, the
court stated that the prayers would alter the tone of the
graduation ceremony and shift the focus away from the students and the secular purpose of the graduation to the religious
content of the speaker’s prayers.213 Second, the court determined that permitting the recitation of prayers would polarize
and politicize the event.214 Finally, the court stated that sectarian and proselytizing prayers would alter the character of the
event and possibly disrupt it.215 As a result, the court rejected
the possibility that permitting students to deliver sectarian
and proselytizing prayer would further a solemnizing effect.
Under Lemon’s second prong, the court opined that
without the nonsectarian, nonproselytizing restrictions,
SFISD’s modified Clear Creek policy failed Lemon’s primar y
effect prong. First, the court noted that in the context of public
school children, it is important to ensure that a practice does
not convey a message of religious endorsement or disapproval.216 Second, the court dismissed the importance of the
student vote because the students could conceivably designate
a formal religious representative to deliver a “full-fledged, fireand-brimstone, Bible or Koran-quoting, sectarian sermonette
(in the dress for a prolonged invocation or benediction) at
graduation.”217
209
Id.
Id. at 819.
211 Doe, 168 F.3d at 822.
212 Id. at 816.
213 See id.
214 See id.
215 See id.
216 See Doe, 168 F.3d at 816.
217 Id. at 817.
210
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Because the Lemon test is disjunctive, the court did not
address Lemon’s third prong. However, the court continued its
analysis of SFISD’s policy. It rejected the notion that, because
the ultimate choice was the students’, “the sermonette would
not facially bear the government’s imprimatur.”218 The court
was not persuaded because the prayers would be: (1) delivered
to a government-organized audience; (2) by government-owned
appliance and equipment; (3) on government controlled property; and (4) at a government-sponsored event.219 Finally, the
court concluded that a message was conveyed that government
endorsed religion, including a particular form of religion, because the school permitted sectarian and proselytizing
prayers.220 Here, it seems the court utilized princ iples of the
endorsement test as well as dictum from Lee when it discussed
the “government’s imprimatur.” Thus, the
court mixed and matched Establishment Clause jurisprudence
to strike down the policy.
Next, the court moved to a troublesome rendition of the
endorsement test analysis. The court summarily asserted that
due to these same reasons, the SFISD’s policy “obviously” violated the endorsement test.221 Here, it seems the court opined
that in its discussion of the two Lemon prongs and allusions to
Lee dictum that the policy clearly violated the endorsement
test. Then, the court sadly asserted
[H]aving concluded that student-selected, student-given, sectarian,
proselytizing invocations and benedictions at high school graduations violate both the Lemon test and the endorsement test, we are
not required to determine that such public school prayer policies also
run afoul of the Coercion test to hold them antithetical to the Establishment Clause.222
The court did not “[address] . . . whether SFISD’s policy violates the Coercion Test.”223 These statements are upsetting because they prove that lower courts can utilize any Establishment Clause test they desire to justify their results. Moreover,
218
Id.
Id.
220 See id.
221 Doe, 168 F.3d at 818.
222 Id. (emphasis added).
223 Id.
219
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this clearly shows a lack of uniformity and clear guidelines.
Although the Santa Fe Court clearly supported the coercion
test, the Fifth Circuit ignored the test and its principles. Instead, the court rested its decision on the policies’ failure to
prohibit “sectarian and proselytizing” prayers. Because it
lacked these elements, the court utilized Lemon by stating that
SFISD’s July policy lacked a secular purpose and had the primary effect of advancing and unconstitutionally endorsing religion.224
In its public forum analysis, the court considered
whether SFISD’s July policy survives constitutional scrutiny
because it created a limited public forum.225 First, the court
quickly declared that the graduation ceremony is “quite obviously not a traditional public forum.” Therefore, the court addressed whether the SFISD’s commencement program constituted a government designated public forum. In concluding
that the state did not transform its property into designated
public forum, the court examined (1) governmental intent and
(2) the extent of the use granted.226
The court first found that SFISD’s policy clearly did not
meet the test of government intent. First, the policy’s character
and history did not make the ceremony, in general, nor the invocation and benediction portions, in particular, appropriate
fora for such public discourse.227 Second, graduation ceremonies are not the place for presentations on topics of public concern.228 Lastly, the court reasoned that a graduation ceremony
comprised one activity which is singular in purpose, unlike a
debate or other venue for the exchange of competing viewpoints.229
When examining the extent of free speech use, the court
asserted that SFISD did not grant general access to a class of
speakers at its graduation ceremony because only a limited
number of speakers were chosen to deliver prayers.230 Also, the
court noted that the speakers would not be given free reign to
address issues, or even a particular issue of political and social
224
See id.
See id. at 819-21.
226 See Doe, 168 F.3d at 819-20.
227 See id. at 820.
228 See id.
229 See id.
230 See id.
225
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significance.231 Therefore, the court concluded that no one was
granted “indiscriminate use” of SFISD’s government-controlled
channel of communication.232
Because the state cannot discriminate against religious
speech in a limited public forum, the court took great pains to
distinguish limited public forum cases. The court stated that
public forum analysis did not play a role in its Clear Creek decision and the words public forum were not even mentioned in
the opinion.233 As a result, the court held that public forum
doctrine could not apply to the July policy and did not implicate Free Speech Clause protection as a limited public forum.234 Thus, using the Establishment Clause, the court
rejected SFISD’s policy because it was missing the nonsectarian and nonproselytizing restrictions.235
Lastly, the court addressed whether a prayer policy including the nonsectarian and nonproselytizing requirements
could be extended to football games. In rejecting the extension
to football games, the court was convinced that the issue was
identical to the Duncanville case discussed earlier.236 In an attempt to distinguish the cases, SFISD argued that the students
did not initiate prayers spontaneously.237 Instead, the students
had a voting system. The court quickly rejected this distinction
as unimportant.238 It stated that the controlling and relevant
principle enunciated in Clear Creek was the singular context
and serious nature of a graduation ceremony.239 Thus, the
court held that SFISD’s policy including the nonsectarian,
nonproselytizing restrictions could not be extended to football
games.240
231
See Doe, 168 F.3d at 820.
Id.
233 See id. at 821.
234 See id.
235 See id.
236 See Doe, 168 F.3d at 822. Duncanville is discussed supra notes 201-204 and
accompanying text.
237 Id.
238 Id.
239 Id.
240 Id.
232
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The Supreme Court Opinion
On appeal, the Supreme Court limited its inquiry to the
question of “[w]hether petitioner’s policy permitting studentled, student-initiated prayer at football games violates the Establishment Clause.”241 In the first part of its analysis, the Supreme Court utilized the coercion test in Lee to determine if the
October policy violated the Establishment Clause. Applying the
coercion test, the Court discussed: (1) whether the October policy messages are private student speech, not public speech;242
and (2) whether SFISD’s football policy is distinguishable from
the graduation prayer in Lee because it did not coerce students
to participate in religious observances.243 Lastly, the Supreme
Court applied the Lemon test to decide whether the Does made
a premature facial challenge to the October policy.244
First, the Court announced that Lee’s coercion test was
applicable to this case even though Lee involved student prayer
at a different type of school function.245 By announcing that
“our analysis is properly guided by the principles that we endorsed in Lee,”246 it seemed that Justice Stevens would utilize
the coercion test to judge the constitutionality of the October
policy. However, the opinion is filled with dictum and analysis
from several different Establishment Clause tests.
Before the Court discussed the Establishment Clause, it
addressed the public forum issue and the Free Speech Clause.
The Court recognized that there is a crucial difference between
government speech endorsing religion and private speech endorsing religion. However, the Court rejected SFISD’s argument that the pre-game invocations should be regarded as private speech because the school officials did not show, either by
policy or by practice, any intent to open the pre-game ceremony
to indiscriminate use by the student body generally.247 Instead,
the Court opined that the school allowed only the same student
for the entire season to give the invocation.248 Therefore, the
241
See Santa Fe, 530 U.S. at 301.
See id. at 302.
243 See id. at 311.
244 See id. at 314.
245 See id. at 303.
246 Santa Fe, 530 U.S. at 301.
247 See id.
248 See id.
242
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Court concluded that “selective access does not transform government property into a public forum.”249
Second, the Court found that Santa Fe’s student election system ensured that only those messages deemed “appropriate” under the SFISD’s policy would be delivered.250 Here,
the Court opined that “the majoritarian process implemented
by SFISD guarantees, by definition, that minority candidates
will never prevail and that their views will be effectively silenced.”251 The Court determined that Santa Fe’s student election did nothing to protect minority views.252 The Court found
that the SFISD’s elections were “insufficient safeguards of diverse student speech” because fundamental rights may not be
submitted to a vote and do not depend on the outcome of elections.253
Third, the Court rejected the argument that the SFISD
adopted a hands-off approach to the pre-game invocation. Instead, the court found that the realities of the situation revealed that SFISD’s policy involved both perceived and actual
endorsement of religion. The Court found that the “degree of
school involvement” made it clear that the pre-game prayer
bore “the imprint of the State and thus put school-age children
who objected in an untenable position.”254
Fourth, the Court found that the two-step student election process did not disentangle the district from the religious
messages because the text of the October policy “exposes the
extent of the school’s entanglement” and the policy “by its
terms invites and encourages religious messages.”255 Beyond
the text of the policy, the Court noted that other factors established the endorsement of the religious message. Some of the se
factors included: (1) the invocation was delivered to a large audience assembled as part of a regularly scheduled, schoolsponsored function conducted on school property; and (2) the
message was broadcast over the school’s public address system
which remains subject to the control of school officials.256 The
249
Id. at 303.
Id.
251 Santa Fe, 530 U.S. at 303.
252 See id.
253 Id.
254 Id.
255 Id. at 306.
256 See Santa Fe, 530 U.S. at 306.
250
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Court also decided that regardless of a listener’s “support for,
or objection to, the message, an objective Santa Fe High School
student will unquestionably perceive the pre-game prayer as
‘stamped’ with her school’s seal of approval.”257
Lastly, the Court rejected SFISD’s argument that the
purposes of the policy were secular: to “foster free expression of
private persons as well as to solemnize sporting events, promote good sportsmanship and student safety, and establish an
appropriate environment for competition.”258 The Court found
that SFISD’s approval of only one specific kind of message, an
invocation, was not necessary to further any of its stated purposes259 and that permitting only one student to give a contentlimited message suggested that the policy did little to foster
free expression.260 The Court concluded that “regardless of
whether one considers a sporting event an appropriate occasion
for solemnity, the use of an invocation to foster such solemnity
is impermissible when, in actuality, it constitutes prayer sponsored by the school.”261
In the second part of the analysis, the Court addressed
whether the SFISD’s football policy was distinguishable from
the graduation prayer in Lee. Here, the SFISD argued that the
there was no impermissible government coercion because the
pre-game messages are the product of student choices.262 The
Court rejected this argument because the issue in the first
election was whether a student would deliver prayer at varsity
football games. Before this election, the students would debate
a religious issue. Furthermore, this case demonstrated that the
“views of the students are not unanimous on [this] issue.”263
This was troubling to the Court. It declared that the “Establishment Clause purports to remove debate over [whether to
have prayer] from governmental supervision or control.”264 The
Court explained that the two student elections authorized by
the policy, coupled with the debates that follow each, impermissibly invade the private sphere that must be preserved for
257
Id.
Id.
259 See id.
260 See id.
261 Santa Fe, 530 U.S. at 306.
262 See id.
263 Id. at 310.
264 Id.
258
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religious beliefs and worship.265 In addition, the Court clarified
that the policy violated the Establishment Clause because it
encouraged “divisiveness along religious lines in a pubic school
setting.”266
The SFISD further asserted that there was no coercion
because attendance at an extracurricular event, unlike a
graduation ceremony, is voluntary.267 The Court rejected this
formalistic argument because some students such as cheerleaders, band members, and team members have seasonal
commitments that mandate their attendance.268 In fact, Respondent Doe’s daughter was a cheerleader at the school.269
Also, the court opined that the choice between whether to attend the events or to risk facing a “personally offensive religious ritual is in no practical sense an easy one.”270 Finally, the
Court reasoned that the constitutional command “will not permit the District to exact religious conformity from a student as
the price of joining her classmates at a varsity football
game.”271
In the third part of the analysis, the Court addressed
whether the Does made a premature facial challenge to the
October policy.272 Looking to Lemon to assess the constitutionality of the policy, the Court examined whether the policy
lacked a “secular legislative purpose.”273 The Court opined that
the October policy had an unconstitutional purpose. First, the
Court noted that the plain language of the policy demonstrated
the school’s involvement in the election of the speaker and the
content of the message.274 Second, the text of the policy specified a preferred traditional religious invocation.275 Third, the
Court stated that the selective access of the policy and the
other content restrictions revealed that it was not a contentneutral regulation that created a limited public forum for the
265
See id.
See Santa Fe, 530 U.S. at 310.
267 See id.
268 Id. at 311.
269 See Respondent’s Brief at 46.
270 Santa Fe, 530 U.S. at 312.
271 Id. at 313.
272 See id.
273 Id. at 314.
274 See id.
275 See Santa Fe, 530 U.S. at 314.
266
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expression of student speech.276 Thus, the Court concluded that
the policy was invalid on its face because “it establishes an improper majoritarian election on religion, and unquestionably
has the purpose and creates the perception of encouraging the
delivery of prayer at a series of important school events.”277
In a rigorous dissent, Chief Justice Rehnquist pointed
out flaws in the majority opinion. He emphasized that this was
a facial challenge to the October policy. Therefore, in facial
challenges in the Establishment Clause context, “[the Court
has] looked to Lemon’s three factors to guide the general nature of our inquiry.”278 Yet, Chief Justice Rehnquist emphasized that the Court is unwilling to be confined to any single
test in this sensitive area. Like the majority opinion, this assertion allowed the dissent to employ several different tests,
principles, and dictum to achieve its end. Thus, the dissent suffered from the same vice as the majority opinion.
IV.
THE AFTERMATH OF SANTA FE
While the Supreme Court properly held that SFISD’s
policy was unconstitutional, its decision left unanswered questions. Unfortunately, the issue in this case was difficult because it implicated both the public forum doctrine and the conflict between the religion clauses. As a result, the Court had to
confront the competing principles associated with these different components of First Amendment jurisprudence. The Court
has found that religious beliefs and expression are forms of
speech and are protected by the Free Speech Clause of the
First Amendment.279 In addition, some early free speech decisions involving religious expression relied on the Free Exercise
Clause as well.280 Moreover, statutes and policies that attempt
to accommodate the concerns of adherents of religion lie at the
borderline of the Free Exercise and Establishment Clauses. As
a result, the problem of student religious speech creates intricate problems. In fact, some commentators question whether
276
See id.
Id.
278 Id. at 315 n.1.
279 See GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 573 (1999).
280 See id. at 573.
277
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the two religion clauses are compatible in a pluralist nation.281
Because of the role religion plays in many parts of the
country, it is not unreasonable to assume that other school districts will attempt to create policies similar to SFISD. Furthermore, it is foreseeable that school districts will attempt to
seek refuge in the public forum doctrine and claim viewpoint
discrimination against religion. As a result, the Court needs to
draw a brighter line in these cases between government speech
and private speech. More importantly, the Court needs to use
only one test to govern the issues in this area of Establishment
Clause jurisprudence. The Court can no longer use malleable
doctrines and dictum from different Establishment Clause
cases and tests to justify its findings. Instead, the Court needs
to provide a uniform Establishment Clause test that gives
lower courts and school districts guidance in this troublesome
area.
This final section of the Note will first examine the
Santa Fe Court’s private speech analysis. Then, it will explore
the Court’s utilization of different Establishment Clause tests
throughout the opinion. Next, this Note will briefly examine
the Chandler and Adler decisions. Lastly, this Note will posit
that one solution is to: (1) apply forum analysis and its categorical approach; and (2) conduct an Establishment Clause inquiry using an “any reasonable observer endorsement test”
version of the endorsement test instead of Lee’s coercion test.
A.
The Private Speech Analysis in Santa Fe
When confronted with SFISD’s argument that the messages are private student speech, the Court immediately cited
dictum from Board of Education of Westside Community v.
Mergens282 that “there is a crucial difference between government speech endorsing religion, which the Establishment
Clause forbids, and private speech endorsing religion, which
the Free Speech and Free Exercise Clauses protect.”283 Although the Court agreed with the distinction, it was not per281
See id. at 611. The authors note that the Establishment Clause requires
(some sort of) neutrality, while the Free Exercise Clause requires (some sort of) preference to religion and may permit other preferences. See id.
282 496 U.S. 226 (1990).
283 Id. at 250.
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suaded that the pre-game invocations should be regarded as
private speech. Yet, the Court did not adequately explain the
reasons why these invocations are not private speech. Because
this dictum from Mergens has been cited in many cases, it is
useful to examine the original context. After stating this proposition, the Mergens Court stated, “we think that secondary
school students are mature enough and are likely to understand that a school does not endorse or support student speech
that it merely permits on a nondiscriminatory basis.”284 The
Court further stated that the proposition that schools do not
endorse everything they fail to censor is not complicated.285
Lastly, the Court supported the proposition that “students below the college level are capable of distinguishing between
State-initiated, school-sponsored, or teacher-led religious
speech on the one hand and student-initiated, student-led religious speech on the other.”286
It is questionable whether the Court should be relying
on this case at all. First, the Mergens Court was interpreting a
federal statute that allowed religious speech in a situation entirely different from pre-football game ceremonies. Second, it is
clear by its language that the Mergens Court was applying the
endorsement test, not the coercion test. In fact, the coercion
test was formulated after the Mergens case. Therefore, the
Mergens Court was not using the principles established in Lee
to guide its analysis as the Santa Fe Court claimed.
The Santa Fe Court also stated that although the
SFISD relied on cases involving public forum analysis, it is
“clear” that the pre-game ceremony is not the type of forum
discussed in those cases. Subsequently, the Court importantly
stated that “a conclusion that the District had created a public
forum would help shed light on whether the resulting speech is
public or private.”287 Here, the Court cited to Justice
O’Connor’s concurrence in Capitol Square Review and Advisory
Board v. Pinnette. In that case, the plurality opinion formulated a per se approach holding that religious expression does
not violate the Establishment Clause where it is purely private
and occurs in a traditional or designated public forum. Justice
284
Id.
See id.
286 Id.
287 Santa Fe, 530 U.S. at 303 n.13.
285
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O’Connor disagreed with the plurality’s per se approach to
speech in public forums and would not “carve out an exception
to the endorsement test for the public forum context.”288 Although this Note posits that Justice O’Connor’s approach was
the better approach, citing this statement was troubling for
several reasons. First, the Court used the ambiguous term
“public forum.” However, as Perry and its progeny explained,
there is a separate analysis regarding each distinct forum. The
Court failed to establish whether it would rule one way or another due to the creation of a traditional public forum, a limited public forum, or a nonpublic forum. Second, the concurrence in Pinette is clearly using the endorsement test. Citing
Allegheny , Justice O’Connor stated that “in my view, the endorsement test asks the right question about governmental
practice challenged on Establishment Clause grounds.”289 By
invoking Allegheny ’s endorsement test, the Court mixed a different Establishment Clause test with the principles announced in Lee. Thus, the Court left courts and school districts
guessing which test or which principles properly guide the
analysis in this sensitive area of law.
B.
The Mixing and Matching of Different Esta blishment
Clause Tests
Throughout the Santa Fe opinion, the Court utilized
dictum and principles from different Establishment Clause
tests and cases. As a result, the Court has given lower courts
an opportunity to justify its decision using principles and tests
created by different Supreme Court justices. Because of the
change in the make-up of the Supreme Court, it is foreseeable
that decisions will be based on principles espoused by justices
no longer on the Supreme Court. Therefore, the Supreme Court
should clarify the law in this particular context by using one
Establishment Clause test.
In Santa Fe, the majority opinion is filled with principles and dictum from all of the Establishment Clause tests.
First, the Court began the opinion by stating that “our analysis
288
289
(1995).
Id.
See Capitol Square Rev. & Advisory Bd. v. Pinette 515 U.S. 753, 772
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is properly guided by the principles that we endorsed in Lee.”290
Then, the Court opined that “the realities of the situation
plainly reveal that its policy involves both perceived and actual
endorsement of religion.”291 In the following paragraph, the
Court stated “the District has attempted to disentangle itself
from the religious messages by developing the two-step student
election process.”292 Then, the Court claimed that the “actual or
perceived endorsement of the message, moreover, is established
by factors beyond just the text of the policy.”293 Later in the
opinion, the Court returned to discussing the “coercive element
of the . . . message.” However, as the dissent points out, the
Court acknowledged that this case is a facial challenge to the
policy late in the opinion. More importantly, the Court stated
that “as in previous cases involving facial challenges on Establishment Clause
grounds . . . we assess the constitutionality
of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman.” One wonders whether the other
two-thirds of the opinion were necessary. Then, after announcing the Lemon test, the Court strays from its test. The Court
discusses “endorsement” as well as coercion throughout the
rest of the opinion.
Mixing and matching principles from different Establishment Clause tests is troubling and irresponsible in this
particularized context. The Court needs to set a single standard and test to provide uniformity for school districts and
lower courts throughout the country.
C.
Chandler v. Siegelman
The concerns expressed above occurred in a recent
Eleventh Circuit decision. In Chandler, the Eleventh Circuit
addressed an action challenging the facial constitutionality of
Alabama’s statute permitting non-sectarian, non-proselytizing
student-initiated prayer, invocations, and benedictions during
compulsory or non-compulsory school-related assemblies, sporting events, graduation ceremonies, and other school- related
290
See Santa Fe, 530 U.S. at 301.
See id. at 305.
292 See id. at 305-06.
293 See id. at 307.
291
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events.294 After the lower court instituted a permanent injunction, the school district appealed.295
In its opinion,296 the Eleventh Circuit, on remand from
the Supreme Court, held that the “the prayer condemned there
(in Santa Fe) was coercive precisely because it was not private.”297 Then, the Eleventh Circuit summarily asserted: “the
Court’s holding in Santa Fe is only that State-sponsored, coercive prayer is forbidden by the Constitution.”298 As a result,
many concerns are raised by Chandler such as whether: (1)
this was the only holding of Santa Fe, (2) it necessarily follows
that the Santa Fe Court was only concerned with coercion and
not endorsement, and (3) whether lower courts should ignore
forum analysis. Moreover, the next paragraph of the Eleventh
Circuit opinion called the soundness of Santa Fe into question.
The Eleventh Circuit stated that Santa Fe explicitly reaffirms
the basic principle espoused in Mergens, that “there is a crucial
difference between government speech endorsing religion,
which the Establishment Clause forbids, and private speech
endorsing religion, which the Free Speech and Free Exercise
Clauses protect.”299 Then, the Eleventh Circuit significantly
asserted that “Santa Fe leaves unanswered, however, under
what circumstances religious speech in schools can be considered private and, therefore, protected.”300 Therefore, the Eleventh Circuit in Chandler highlighted the fact that Santa Fe’s
incomplete analysis has created uncertainty in this area. As a
result, lower courts were left to decide which Establishment
Clause test to follow and apply when confronted with similar
issues.
294
See Chandler, 230 F.3d at 1314.
See id. The court of appeals vacated the permanent injunction holding that
the injunction may neither prohibit genuinely student-initiated religious speech, nor
apply restrictions on the time, place, and manner of that speech which exceed those
placed on student’s secular speech.
296 On June 26, 2000 the Supreme Court granted certiorari in Chandler, vacated the judgment and remanded the case for further consideration in light of Santa
Fe. On remand the Eleventh Circuit reinstated its opinion and judgment. Chandler v.
Siegelman, 530 U.S. 1256 (2000).
297 Chandler, 230 F.3d at 1315.
298 Id. at 1315 (emphasis added).
299 Id. at 1317.
300 Id. at 1315 (emphasis added).
295
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Adler v. Duval County School Board
In addition to the mixed signals sent by the Chandler
decision, the Supreme Court this term has added even more
uncertainty to the law governing student-led prayer in public
schools. On December 10, 2001, the Supreme Court refused to
review the Eleventh Circuit decision upholding a Florida school
district’s policy permitted graduating students to vote on
whether to have unrestricted student-led messages at the beginning and closing of graduation ceremonies.301 Unfortunately, the Duval policy represents the same Establishment
Clause dangers found in the unconstitutional Santa Fe policy.
In Adler, the Eleventh Circuit found that the Duval policy was distinguishable from Santa Fe because it did not allow
school officials to review the content of the student message.302
Because the Duval students chose their own message for the
ceremony, the Eleventh Circuit found the student speech not
state-sponsored.303 However, the Santa Fe Court rejected the
same “circuit-breaker” argument. Jay Sekulow, arguing on behalf of the Santa Fe petitioners, urged that the policy created
the ultimate circuit-breaker because the independent, individual student determined the content of the message.304 In rejecting this argument, the Court found that “contrary to the District’s repeated assertions that it has adopted a ‘hands-off’ approach . . . the realities of the situation plainly reveal that its
policy involves both perceived and actual endorsement of religion.”305 Thus, this same hands-off approach cannot render the
Duval policy constitutional.
Moreover, Justice Souter’s question during the Santa Fe
oral argument demonstrates the Establishment Clause dangers clearly present in the Duval policy. He asked
301
See Adler v. Duval County Sch. Bd., 122 S. Ct. 664 (2001). Two years ago,
the Supreme Court vacated and remanded the initial Eleventh Circuit decision to be
considered in light of Santa Fe. See Adler, 531 U.S. 801 (2000). After reviewing Santa
Fe, the Eleventh Circuit reinstated its en banc decision in favor of the school district.
See Adler 250 F.3d 1330 (11th Cir. 2001).
302 See Adler, 250 F. 3d. at 1336.
303 See Adler, 250 F. 3d at 1337-38.
304 See Transcript of Oral Argument, Santa Fe v. Doe, 530 U.S. 290 (2000),
available at 2000 WL 374300 at *17.
305 See Santa Fe, 530 U.S. at 305.
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if the student who is chosen exercises that student’s choice to pray,
we are still faced with a system in which it is the school or the school
district that provides the forum in which this is going to appear, requires the attendance of a certain number of students to be there
and, therefore, requires those students to sit there while a prayer is
going on. What more do we need to decide the Establishment Clause
case?306
Clearly, Justice Souter succinctly illuminates Establishment
Clause concerns that the Eleventh Circuit disregarded in
Adler. Undoubtedly, this exact question could be posed to the
Duval school district lawyer. Therefore, despite its minor
variations, the Duval policy still offends the Establishment
Clause.307 Although the Supreme Court should have granted
certiorari in this case, it will certainly face future challenges to
similar policies. Thus, the Court must give clearer guidance to
lower courts, clarify its approach to this issue, and pay proper
respect to the Establishment Clause.
E.
One Possible Remedy
As noted above, the Court over time has applied several
different tests and principles to the issue of school prayer.308
However, the Court has been unwilling to confine itself to a
single test in the entire area of Establishment Clause jurisprudence. Still, lower courts need clearer guidance to determine
the constitutionality of school policies allowing student-led,
student initiated prayers at extra-curricular events and pregame ceremonies. As the Eleventh Circuit decisions highlight,
the Court should no longer announce that it is guided in a certain area by the principles of one test and rest its decision on
principles and language from other tests. One possible remedy
is to pursue a two-step analysis in this context. First, courts
should apply forum analysis with its categorical approach. Second, the courts should use a particularized form of the endorsement test that asks whether the challenged policy has the
purpose or effect of endorsing religion by focusing on the per306
307
tion.”
See Tr. of Oral Argument at *17.
One difference was that the Duval policy did not contain the word “invoca-
308 For an overview of developments, see Ira C. Lupu, The Lingering Death of
Separationism, 62 GEO. WASH. L. REV . 230 (1994).
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ception of any reasonable observer. This Note will elaborate
on the two steps of the
analysis, address some counterarguments, and apply the
analysis to a hypothetical situation.
1. Step One: Conducting a Public Forum Analysis
In Santa Fe, the Court held that the SFISD policy did
not create a public forum. However, the Court did state that “a
conclusion that the District had created a public forum would
shed light on whether the resulting speech is public or private.”309 As a result, school districts may seek refuge in the
public forum doctrine and argue that the messages given under
their policy are protected private speech. Thus, lower courts
must still engage in public forum analysis to address this argument. As a result, the first prong of the proposed analysis is
to determine in which category the forum belongs and engage
in the analysis enunciated in Perry.
Under this analysis, the pre-game ceremony context
clearly does not lend itself to the classic, or quintessential, traditional public forum, such as a park or a sidewalk. However,
when the forum is not a historic type of public forum, but has
nonetheless been opened to the public’s first amendment activities, a designated public forum may have been created. In
this forum, following Widmar, Mergens, and Lamb’s Chapel,
lower courts will apply strict scrutiny when schools exclude
speakers based on their religious speech. Finally, if lower
courts determine that the school district created a nonpublic
forum, the government will be free to exclude speech or speakers based upon the subject of the message, except in cases of
viewpoint discrimination. For example, the lower court could
allow a regulation such as “no religious speech in this forum.”
However, it could not allow viewpoint discrimination in a regulation such as “no Buddhist speech in this forum.”
When analyzing religious speech in traditional or designated public forums, some commentators argue that the Court
should apply the per se rule from Pinette.310 In that case, the
plurality held that “religious expression cannot violate the Es309
310
Santa Fe, 530 U.S. at 305.
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995).
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tablishment Clause where it is (1) purely private and (2) occurs
in a traditional or designated public forum.”311 The court found
that an expression is private simply when someone other than
a state actor engages in the speech. However, I agree with Justice O’Connor’s concurrence and Stevens dissent in Pinette that
this approach is flawed and pays little respect to the Establishment Clause. It is unwise to allow the public forum doctrine
to convey an absolute constitutional right to engage in religious
speech. Despite the forum, students may still be unwillingly
exposed to others’ religious views. Worse, the views may be
espoused in a setting surrounded by indicia of the school. As a
result, the students may be subjected to evils the Establishment Clause forbids. Therefore, lower courts should not find
the type of forum dispositive and should conduct an Establishment Clause inquiry.
2. Step Two: Applying the Modified Endorsement Test
After the forum has been established, courts should employ an Establishment Clause inquiry using the “any reasonable observer endorsement” version of the endorsement test.
This step is derived from Justice Stevens’ Pinette dissent in
which he advocated that a religious display would violate the
Establishment Clause when some reasonable observer would
attribute a religious message to the State.312
In order to correctly apply this standard, lower courts
need to focus on an objectively reasonable person. In Pinette,
Justice O’Connor in her concurrence and Justice Stevens in his
dissent disagreed about the reasonable observer’s state of mind
when observing a religious display in a limited public forum.
Justice O’Connor gave the reasonable person knowledge of the
forum’s history and past uses.313 In contrast, Stevens argued
against assuming the observer knew the existence of a public
forum.314 Justice Stevens pointed out that “Justice O’Connor
apparently would not extend Establishment Clause protection
311
Id. at 770.
Id. at 800 n.5.
313 Id. at 808 n.14.
314 Id. at 807.
312
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to passers-by who are unaware of Capitol Square’s history.”315
Extending this logic to the Santa Fe context, some students
will be unaware of the school property’s history and uses.
Therefore, the same objectively reasonable standard should be
utilized in this particular school speech context.316 This focus
will better prevent students from feeling like outsiders in matters of religion and believing that their sovereign supports a
faith to which they do not subscribe.
In employing this second prong, lower courts should not
utilize language or dictum from other Establishment Clause
inquiries. Therefore, in the Santa Fe context, the Court should
abandon the Lee test because it is a malleable doctrine and too
subjective in nature. While courts may look at a situation and
attempt to figure out if a state is endorsing or favoring religion,
a judgment that a “nonadherent” feels coercion is too personal
in nature. In addition, the coercion test gives courts an opportunity to use formalistic arguments to reach their intended result. Moreover, because different towns have different cultural
makeups, a student in Maine may feel coerced whereas a student in Alabama in a similar situation may not. In sum, this
prong is a more workable analytical tool and better protects
Establishment Clause values.
3. Step 3. Applying the Two-Part Test
By applying the above analysis to a hypothetical case, I
hope to clarify the analysis and show the intricacies involved in
this problem. Suppose a school in town X conducts a “pep-rally”
assembly every afternoon before its football games. The high
school students would sit in the bleachers and the football
coach would announce the players. Next, assume that the
school has a policy allowing a student to approach the podium
and give a two-minute “message” to the student body. Traditionally, the team captain, the head cheerleader, and the student council president address the student body using the microphone on the podium. Here, the school did not evince any
315
See Pinette, 515 U.S. at 808 n.15.
In Pinette, Justice Stevens argued that “a person who views an exotic cow
at the zoo as a symbol of the government’s approval of the Hindu religion” would be not
be objectively reasonable. Id.
316
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intent to open this forum to the public. Additionally, historically and traditionally the school property is not open for free
speech debate and activity. Under Perry, it seems the school is
not allowing “indiscriminate use” by the general public and the
property would be a nonpublic forum. However, arguably the
school’s policy opens the school property to a certain class of
speakers. Also, this practice may be a tradition practiced every
year. Therefore, it is foreseeable that the school district X
would argue that the three students would be engaging in private speech that the Free Speech Clause protects. As a result,
the school will claim that it does not want to engage in viewpoint discrimination against religious speech.
Furthermore, assume that two students are in the audience who recently moved to town X. These students are devout
followers of religion Y. At the conclusion of the football captain’s speech, he recites a Christian prayer to the entire school.
After the football captain, the other students recite the same
prayer. Is it possible that the two religion Y students in the
audience will attribute the football captain’s comments to the
school? What if these students completely disagree with Christianity and are utterly offended? Many issues need to be considered. First, the school district could argue that the football
captain’s expression would be his own private student speech
because the school did not direct the captain or control his
choice of message in any way. Second, the pep-rally has many
of the earmarks of the school. The pep-rally was a regularlyscheduled, school-sponsored function conducted on school property. Third, the school had a policy that allowed these messages to be given to the rest of the student body. Lastly, the
three students used a microphone and stood on a school podium covered with the indicia of the school. As a result, the
public forum analysis cannot end the inquiry.
Under the coercion test, it is possible that the religion Y
students may feel that the school is “coercing” them to support
or participate in the Christian religion. On the other hand,
these students may not feel any coercion and believe the
prayers are innocuous. A court may rule either way in this
case. This type of guessing and probing into the subjective
mind is one of the vices of Lee’s coercion test.
Under the second prong of the proposed analysis, the
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courts should utilize the “any reasonable observer endorsement” test. In this example, the court would then look to
whether the school was endorsing, favoring, promoting or preferring the religious belief espoused by the students focusing
on any reasonable observer. Furthermore, the courts should
look to whether reasonable observers would attribute a religious message to the state. When applying the reasonable observer standard, courts should not look to an ideal observer
with knowledge of the history and values of the community.
The religion Y students may not know the history or the policy
surrounding this activity. Also, the students do not understand
the intricacies of the First Amendment and do not know the
difference between a public forum, a limited public forum, and
a nonpublic forum. It is problematic to attribute to some observers knowledge that would save the policy from an Establishment Clause violation. Instead, the courts should determine whether an objectively reasonable student listener of the
religious speech would be likely to perceive government endorsement.
Applying this standard to the students of religion Y, the
court must remember that they are students in the school who
are equally entitled to be free from government endorsement of
the Christian religion. Under this version of the endorsement
test, the courts should test the situation using objective criteria. Here, the school had a policy of allowing these messages to
be given to the entire student body. Many of the indicia of the
school are present. Also, the students are assembled as part of
a regularly-scheduled, school-sponsored function on the
school’s athletic field and stadium. Regardless of whether the
students of religion Y feel coerced by the school to participate
or approve of the Christian prayer, it seems objectively reasonable that the school is endorsing the Christian prayer. Although the other students may wish to pray privately, they
should not be able to utilize the school’s microphone and podium to espouse their religious views.
In conclusion, Lee’s coercion test gives lower courts and
school districts more room to defy Supreme Court principles.
Instead of concentrating on objective determinations, the coercion test focuses on the subjective views of the students. It is
evident that these views may differ dramatically with each
student and that some students may be more sensitive than
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others. Therefore, the “any reasonable observer” version of the
endorsement test is a better analytical tool. Instead of mixing
and matching old principles of Supreme Court jurisprudence,
the Court should employ a single straightforward test for this
troublesome area of the Establishment Clause.
CONCLUSION
In Santa Fe, the Supreme Court exacerbated the controversial area of school prayer. The Court utilized several different tests and rationales to find the policy unconstitutional.
Unfortunately, the Court carelessly used dictum that left many
questions and concerns unresolved. The decision leaves lower
courts without clear guidance on which test to employ and results in inconsistent decisions. As the Chandler decision highlights, lower courts may deviate from the central holding of
Santa Fe by citing to unanswered questions concerning private
speech. One possible solution is for courts to utilize the single
test proposed above in this particularized context: First conduct a public forum analysis, and second, apply the “any reasonable observer” version of the endorsement test. Until the
Supreme Court employs a straightforward, clear analysis,
lower courts will wander and fend for themselves in the depths
of this confusing and intricate area of jurisprudence.
Ross Schmierer†
†
B.A. in English, University of Wisconsin-Madison, 1998; candidate for degree of Juris Doctor, Brooklyn Law School, 2002. The author wishes to thank his
friends and family for their love and support.