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Constructing A Way Out of the Liberal Predicament
Published online by Cambridge University Press: 20 November 2018
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- Review Symposium: On Ackerman's Reconstructing American Law
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- Copyright © American Bar Foundation, 1985
References
1 See also Bruce Ackerman & William Hassler, Clean Coal/Dirty Air ch. 1 (New Haven, Conn.: Yale University Press, 1981).Google Scholar
2 We are celebrating the fiftieth anniversary of the New Deal. See Symposium, The Legacy of the New Deal: Problems and Possibilities in the Administrative State (pts. 1 & 2), 92 Yale L.J. 1083, 1357 (1983); New Deal Symposium, 59 Wash. L. Rev. 691 (1984), especially Leon Keyserling, The New Deal and Its Current Significance in re National Economic and Social Policy, 59 Wash. L. Rev. 795 (1984); and Michael Parrish, The Great Depression, the New Deal, and the American Legal Order, 59 Wash. L. Rev. 723 (1984). Ackerman's contribution to the Yale Symposium, Foreword: Law in an Activist State, 92 Yale L.J. 1083 (1983), is a shorter version of Reconstructing American Law. Google Scholar
3 Ackerman, Bruce, Private Property and the Constitution (New Haven, Conn.: Yale University Press, 1977); id., Social Justice in the Liberal State (New Haven, Conn.: Yale University Press, 1980).Google Scholar
4 Ackerman, Private Property, supra note 3, at 5.Google Scholar
5 Hyde, Alan, Is Liberalism Possible? 57 N.Y.U. L. Rev. 1031 (1982); Lawrence Alexander, Liberalism as Neutral Dialogue: Man and Manna in the Liberal State, 28 U.C.L.A. L. Rev. 816 (1981); and Ronald Dworkin, What Liberalism Isn't, N. Y. Rev. Books, Jan. 20, 1983, at 47.Google Scholar
6 Liberalism is under attack more from the far Left than from the conservative and neoconservative Right. The critical legal studies movement has studiously made liberalism its target instead of bogging its ideology down in debate with traditional conservatives. See, e.g., David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982); Roberto Unger, Knowledge and Politics chs. 1–3 (New York: Free Press, 1975); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976); id., The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 209 (1979); Gerald Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276 (1984); and alternating articles in Symposium, Critical Legal Studies, 36 Stan. L. Rev. 1 (1984).Google Scholar
7 Since constructivism is Ackerman's invention, can there be more than one version? Given that constructivism is painted in rather broad strokes, different readers can construct their own constructivist programs.Google Scholar
8 See, e.g., Stephen Breyer, Regulation and Its Reform (Cambridge: Harvard University Press, 1982); Robert E. Litan & William D. Nordhaus, Reforming Federal Regulation (New Haven, Conn.: Yale University Press, 1983); and Jerry L. Marshaw, Bureaucratic Justice: Managing Social Security Disability Claims (New Haven, Conn.: Yale University Press, 1933).Google Scholar
9 Choper, Jesse L., Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980); and Guido Calabresi, A Common Law for the Age of Statutes (Cambridge: Harvard University Press, 1982).Google Scholar
10 The lingering death of formalism is part of the realist legacy. See, e.g., Grant Gilmore, The Ages of American Law (New Haven, Conn.: Yale University Press, 1977); and Duncan Kennedy, Legal Formality, 2 J. Legal Stud. 351 (1973). Compare with Thomas Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1 (1983); and Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 Tex. L. Rev. 35 (1981).Google Scholar
11 Ackerman notes (at 30) that lawyers not only assume familiarity with the law's particularities, such as “Section 101(a)(ii)(B)(6)(ff),” they wallow in them.Google Scholar
12 A “polycentric” lawsuit is one with several parties, multiple interests, future impacts, ambiguous and uncertain data, and an uneven distribution of tensions among the various parties and interests. Environmentalists opposed to nuclear power, for example, can find themselves in an odd and uncomfortable alliance with coal producers and against consumers. See Fuller, Lon, The Forms and Limits of Adjudication, 92 Haw. L. Rev. 353 (1978); Joel Yellin, High Technology and the Courts: Nuclear Power and the Need for institutional Reform, 94 Harv. L. Rev. 489 (1981); and Milton Wessel, Science and Conscience (New York: Columbia University Press, 1980).Google Scholar
13 Ex post analysis is essentially a retrospective look at the question of fault. The analysis starts with the time of injury and looks backward in an effort to arrive at a fair apportionment of loss. Ex ante arguments approach a dispute from a different angle. According to Ackerman, ex ante analysis looks to a time before the dispute arose and asks what the parties could have done to avoid the problem (at 53–55). Ex ante analysis can also begin at the time of the harm. However, instead of asking whether the loss distribution between the parties was fair, the ex ante analyst asks about the effects of a particular ruling. Will the ruling either party asks for have a fair prospective application? See Easterbrook, Frank, The Supreme Court, 1983 Term—Foreword: The Court and the Economic System, 98 Harv. L. Rev. 4, 10–12 (1984). Both types of ex ante analysis are consequentialist, and therein lies the crucial distinction between ex post and ex ante analysis. An analyst more concerned with future consequences than present predicament has a different vision of the world than does the person interested in making a present adjustment to past behavior. These two orientations are simply other examples of the distinction between a Kantian deontological perspective and a Utilitarian teleological perspective.Google Scholar
14 Chayes, Abram, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976); id., The Supreme Court, 1981 Term—Foreword: Public Law Litigation and the Burger Court, 96 Harv. L. Rev. 4 (1982); and Owen Fiss, The Supreme Court, 1978 Term—Foreword: The Forms of Justice, 93 Haw. L. Rev. 1 (1979).Google Scholar
15 See, e.g., Stewart, Richard, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1671–88 (1975); Simon, William, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 2, 39–42, 61–74; Visions of Practice in Legal Thought, 36 Stan. L. Rev. 469 (1984); and Frug, supra note 6, at 1297–1317.Google Scholar
16 Ackerman's desire to rid modern lawyering of the reactive constraint indicates a certain sympatico with the critical legal studies talk of illegitimate hierarchies and false consciousnesses. Yet, there is a certain restraint in Ackerman. Social institutions can (should) be viewed with a healthy self-conscious skepticism. If the structure is defective, it should be repaired or replaced. In either event, the state of institutional health must be questioned. A more detailed description of when it is legitimate to replace ailing institutions is in Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013 (1984).Google Scholar
17 See, e.g., Judith Resnick, Managerial Judges, 96 Harv. L. Rev. 374 (1982); Owen Fiss, The Bureaucratization of the Judiciary, 92 Yale L.J. 1442 (1983); Gilbert Merritt, Owen Fiss on Paradise Lost: The Judicial Bureaucracy in the Administrative State, 92 Yale L.J. 1469 (1983); and Patricia Wald, Bureaucracy and the Courts, 92 Yale L.J. 1478 (1983).Google Scholar
18 The obituary of the public law/private law distinction appears throughout Symposium, On the Public/Private Distincion, 130 U. Pa. L. Rev. 1289(1982). see also Frug, Gerald, The City as Legal Con. cept, 93 Harv. L. Rev. 1059, 1128–49 (1980).Google Scholar
19 Coase, Ronald, The Problem of Social Cost, 3 J. L. & Econ. 1 (1960).Google Scholar
20 Supra note 13.Google Scholar
21 See, e.g., Joseph P. Tomain, Contract Compensation in Nonmarket Transactions, U. Pitt. L. Rev. (forthcoming).Google Scholar
22 When Ackerman writes about reconstructing social institutions with new analytic forms, he is rejecting the idea that law is a completely autonomous discipline. Instead, law as an effective social force derives its power from other disciplines such as economics. Economics then is both a metaphor for understanding facts and a foundation for developing constructs of the future. If law talk is grounded in economics, then law will be evaluated according to whether it is efficient or wealth maximizing. No reason is given for the preeminence of economics talk. Other disciplines are equally useful in discerning patterns of life to help us understand the human condition and construct futures. See, e.g., Douglas Hofstadter, Godel, Escher, Bach: An Eternal Golden Braid (New York: Vintage Books, 1980) (mathematics, art, and music through the imaginary eye of a computer programmer); David Bohm, Wholeness and the Implicate Order (Boston: Ark Paperbacks, 1983) (physics); Michael Guillen, Bridges to Infinity: The Human Side of Mathematics (Los Angeles: Jeremy P. Tarcher, 1983) (mathematics); Lewis Thomas, The Lives of a Cell (New York: Penguin Books, 1978); and id., The Medusa and the Snail: More Notes of a Biology Watcher (New York: Bantam Books, 1980) (medicine and biology). Although this embarrassingly partial list ignores history, literature, sociology, and psychology, among other disciplines, I hope a point is made. Law is a fundamental and essential human device to help order an imperfect and uncertain world. Perhaps the real power of constructivism lies in finding unifying themes and patterns in several disciplines and using them to illuminate and understand the conflicts we lace in this complex world.Google Scholar
23 See, e.g., Richard Stewart, Regulation in a Liberal State: The Role of Non-Commodity Values, 92 Yale L.J. 1537 (1983).Google Scholar
24 It is unclear to me whether Ackerman sees constructivism as a powerful force intended to change traditional dispute-resolution mechanisms. Clearly, constructivism helps us synthesize complex or poly-centric litigation. If Ackerman's strategy is to replace realist litigation with constructivist litigation, then smaller, less complicated lawsuits must be handled with different methodologies such as arbitration, negotiation, and mediation in forums other than courts. Constructivism can be seen as an ADR-forcing strategy.Google Scholar
25 See, e.g., Frug, Gerald, The Language of Power, 84 Colum. L. Rev. 1881 (1984) (reviewing Reconstructing American Law).Google Scholar
26 Ackerman might refute my assertion that lawyers were “creating” the new language and claim that his constructivist lawyers use language and rhetorical devices developed by economists, other social scientists, and computer programmers. Even so, lawyers have a disproportionate amount of power and status in society, enabling them to make the new language operational and to institutionalize the language in social structures such as legislatures, courtrooms, and bureaucratic agencies. The institutionalization of the language of economics in our legal culture, for example, came about through the law and economics movement, not by the force of economics alone. See, e.g., Easterbrook, supra note 13.Google Scholar
27 Control of language perforce gives lawyers power. See, e.g., Edward T. Mitchell, ed., The Politics of Interpretation (Chicago: University of Chicago Press, 1981).Google Scholar
28 “Rights discourse” is currently a topic of great interest. See, e.g., Symposium: A Critique of Rights, 62 Tex. L. Rev. 1363 (1984). The debate about the “existence” or “usefulness” of rights turns on one's attitude about indeterminacy. Certainly, rights are not concrete, determinate “things” in the world. They are, however, useful for dispute resolution, preventive lawyering, legal counseling, and legal communication.Google Scholar
29 For a distinction between political program and political theory, see Mark Sagoff, Liberalism and Law, In Douglas MacLean & Claudia Mills, eds., Liberalism Reconsidered 12(Totowa, N.J.: Rowman & Allenheld, 1983).Google Scholar
30 See, Ackerman, Social Justice, supra note 3; id., supra note 16; Ronald Dworkin, Liberalism, in Stuart Hampshire, ed., Public and Private Morality 113 (New York: Cambridge University Press, 1978); and Dworkin, Neutrality, Equality, and Liberalism, in Liberalism Reconsidered, supra note 29, at 1.Google Scholar
31 See also Ackerman, Social Justice, supra note 3.Google Scholar
32 Sagoff, supra note 29; and Gerald Frug, Why Neutrality? 92 Yale L.J. 1591 (1983).Google Scholar
33 See sources cited supra note 5.Google Scholar
34 See, e.g., Sagoff, supra note 29, and Dworkin sources, supra note 30.Google Scholar
35 But see, Ackerman, supra note 16. In his Storrs lectures, Ackerman describes a governmental structure that allows the completely private self-interested person to exist without any sense of public spiritedness. Still, the state is not neutral regarding the good life. Excessive privatism is allowed as one of many forms of the good life. Ackerman does not address the private person whose lifestyle contravenes public expectations, e.g., gun toting or cocaine trafficking.Google Scholar
36 See, e.g., Westen, Peter, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982).Google Scholar
37 The most forceful libertarian tract is Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). His critics include all those liberals, such as Ackerman, Dworkin, Sagoff, and the authors cited infra notes 38 and 43, who believe the state must play a role in the redistribution of wealth and power and must act to mediate values conflicts.Google Scholar
38 See, e.g., Levinson, Sanford, Escaping Liberalism: Easier Said Than Done, 96 Harv. L. Rev. 1466 (1983) (reviewing D. Kairys, supra note 6); Allan C. Hutchinson & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199 (1984); and Steven Shifferin, Liberalism, Radicalism, and Legal Scholarship, 30U.C.L.A. L. Rev. 1103 (1983).Google Scholar
39 For arguments against single-criterion philosophies, see Stuart Hampshire, Morality and Conflict (Cambridge: Harvard University Press, 1983); and Virginia Held, Rights and Goods: Justifying Social Action (New York: Free Press, 1984).Google Scholar
40 See, e.g., Leonard T. Hobhouse, Liberalism (New York: Holt & Co., 1912).Google Scholar
41 On legitimacy, see Alan Hyde, The Concept of Legitimacy in the Sociology of Law, 1983. Wis. L., Rev. 319, and Ackerman, supra note 16.Google Scholar
42 See, e.g., Samuel P. Huntington, American Politics: The Promise of Disharmony (Cambridge, Mass.: Belknap Press, 1981); Louis Hartz, Liberal Tradition in America (New York: Harcourt, Brace & Co., 1955); Richard Hofstadter, The American Political Tradition (New York: Vintage Books, 1948); John P. Diggins, The Lost Soul of American Politics: Virtue, Self-Interest and the Foundations of Liberalism (New York: Basic Books, 1984).Google Scholar
43 See Sandel, Michael J., Liberalism and the Limits of Justice (Cambridge, England: Cambridge University Press, 1982); and Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983).Google Scholar
44 Ackerman, Social Justice, supra note 3.Google Scholar
45 see also Brest, Paul, The Substance of Process, 42 Ohio St. L.J. 131 (1981).Google Scholar