John O. McGinnis

Symmetric Entrenchment: A Constitutional and Normative Theory

In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue. First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment. In particular, the Framers incorporated into the Constitution the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison - comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments. On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments - entrenchments that are enacted under the same supermajority rule that is needed to repeal them - are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric, because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures.

Law’s Algorithm

This article offers an historical, theoretical and practical perspective of law as an information technology. Law fundamentally concerns information—providing information to the community about the content of legal norms and, at least in its common law form, eliciting information about the world from the disputes before a court. After a brief survey of law’s history as an information technology, the article applies information theory to understand recent developments in an important aspect of that technology—legal search. Information theory focuses on the signal to noise ratio of communication. The key to progress in creating a better computerized legal search engine is to reduce the signal to noise ratio in the link between the user and the search engine. As this ratio decreases, we show that legal search translates the uncompressed form of legal information into an algorithm for predicting what the law will be in a particular situation. Computerized legal search can therefore become the law itself. This transformation is changing the optimal form of the law by changing the cost of finding it. It rebalances the weights in the classic debate between rules and standards. In particular, exponential increases in computational power make standards relatively more attractive than rules by decreasing the costs of their application. These same increases also allow us to embed information gathering processes within the law itself by creating dynamic rules. These are rules that could be designed by legislatures as algorithms, set to respond automatically to changing empirical information. Since we believe that standards and dynamic rules are likely to be prevalent legal forms of the coming era, we close our article with a comparison of their relative benefits. * George C. Dix Professor of Constitutional Law, Northwestern University. We are grateful to Nelson Lund, Mark Movsesian, and participants in a faculty workshop at Northwestern University Law School for helpful comments on previous drafts. † President, Fantasy Journalist, Inc. ; J.D., Northwestern Law School

The Condorcet Case for Supermajority Rules

The Condorcet Jury Theorem has been deployed to argue that majority rule is the best voting rule for popular decisionmaking, including for legislatures. Yet the United States Constitution employs supermajority rules of various kinds as the primary decisionmaking rule. In this article, we show that modifi cations in the Condocet paradigm that make the model more realistic have the effect of making supermajority rules more desirable than majority rule in a variety of circumstances. We explain that on plausible factual assumptions the Constitution’s supermajority rules generally correspond to situations in which supermajority rules are desirable under a Condorcet paradigm, including the supermajority rules for impeachment, the implicit supermajority rule created by the tricameral structure for passing legislation, and the stringent supermajority rule for entrenching constitutional provisions. We also argue that there is an insurance rationale for using a supermajority rule for entrenching constitutional provisions. Because there is often uncertainty as to how majority rule and supermajority rule will function, risk averse parties may prefer supermajority rules because their effects are less extreme than that of majority rule. Finally, we show that the Condorcet paradigm helps to justify the continuing authority of the Constitution to displace statutes.

Lawrence V. Texas and Judicial Hubris

Lawrence v. Texas produces a desirable policy result, but it deserves condemnation as a legal decision. It repudiates the Supreme Courts most recent attempt to put doctrinal restraints on the most anticonstitutional doctrine in constitutional law - substantive due process. That doctrine, for which the Court has never provided a successful textual justification, has been selectively employed over the decades to advance a variety of political agendas popular with Supreme Court majorities. In 1938, Carolene Products put meaningful restraints on substantive due process, taming that doctrine for about a quarter of a century. With Griswold and Roe v. Wade, the Court adopted a new substantive due process agenda - sexual freedom. In Washington v. Glucksberg, the Court sought to restore most of the limits of the Carolene Products approach, while leaving the Griswold-Roe line in place, by adopting a test requiring that newly recognized rights be deeply rooted in the nations history and tradition. Lawrence repudiates the Glucksberg approach and instead deploys an undisciplined form of judicial mysticism. Notwithstanding the availability of plausible arguments based on precedent to invalidate the Texas law, the Lawrence Court chose instead to rely on a series of utterly untenable arguments and analytically empty bombast. We argue that the Lawrence approach is not law in any meaningful sense of the term, but only a vehicle for judges to impose their own political preferences on the nation. We also rebut some justifications that could be offered in defense of Lawrence. We show that Professor Robert Posts concept of a conversation between the Court and the nation obliterates the concept of law as something distinct from politics, and offers a theory of judicial review that would justify even a decision like Plessy v. Ferguson. Second, we show that Professor Randy Barnett fails in his effort to provide Lawrence with a foundation in the Constitution because he misinterprets the Ninth Amendment and the Privileges or Immunities Clause. Third, we rebut those who would defend Lawrence on pragmatic grounds by explaining why we think competitive federalism is a far superior mechanism for creating new norms of liberty, and for correcting the mistakes that are inevitable in any process of policy development. Finally, we outline the case for repudiating the Griswold-Roe-Lawrence line of cases and for using the Glucksberg test to return the Courts substantive due process jurisprudence roughly to where it stood as a result of Carolene Products.

The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty

In this essay, we explore the effects of the application of the filibuster to judicial confirmations. We conclude that the judicial filibuster has fundamental implications for both the composition of the courts and nature of constitutional law. If employed, the filibuster will change the kind of judges who are confirmed and so over time reshape the Supreme Court itself. We argue that the filibuster will lead to more moderate judges. With the help of spatial models from the political science literature, we contend that supermajority confirmation rules, of which the filibuster rule is an example, will tend to make justices more moderate, where moderate means having a jurisprudential view closer to the view held by the median Senator. We thus identify an apparent paradox that a supermajority rule for judicial confirmation actually furthers the views of the legislative majority. We also analyze the Filibuster Deal, an agreement of 14 moderate Senators designed to preserve the filibuster. We contend that the deal furthered the political self-interest of this group, because the filibuster generates the appointment of the moderate judges that these Senators support. We also make predictions about how the key terms in the deal will be interpreted. Our argument that the filibuster rule generates more moderate judicial appointments also suggests that the rule will temper the countermajoritarian difficulty - the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches. We maintain that a supermajority confirmation rule that generates appointments that accord with the median senators view is also more likely to produce judges who act based on a majority of the publics view of judicial review. In this way, judicial review would be more likely to impose the limitations on popular government that a majority of the people desire. In developing this argument, we unpack the countermajoritarian difficulty into three components - jurisprudential, temporal, and confirmational. Finally, we use our framework to explicate other important features of the confirmation process. We show that the presence of a filibuster rule will lead the President to select more stealth nominees, but that such nominees will still tend to be more moderate than those nominated under majority confirmation rules. We also show that whether a filibuster occurs will depend on a variety of factors; that nominees for the court of appeals are more likely to be filibustered than the Supreme Court nominees; that filibusters are more likely toward the end of the Presidents term; and that the decision whether to filibuster a nominee will depend on expectations about future nominees and the type of reputation the Senate minority wants to develop.

Predicting litigation likelihood and time to litigation for patents

An ability to forecast the likelihood of a patent litigation1 and time-to-litigation benefits companies in many aspects, such as in patent portfolio management, and strategic planning. Thus, we develop predictive models for estimating the likelihood of litigation for patents and the expected time to litigation. Our work focuses on improving the state-of-the-art by relying on a different set of features and employing more sophisticated algorithms with realistic data. Specifically, we consider potential factors influencing a patent to be litigated in the model. These features, collected at the issue date of the patent and thus prior to the actual litigation, include textual features, patents general information as well as financial information of patents assignee. Our proposed models are a combination of a clustering approach coupled with an ensemble classification method. With a very low litigation rate of 1 to 2 percent, the results from the models show promising predictability. Financial information and features related to referencing are important indicators to distinguish between litigated and non-litigated patents

Presidential Review as Constitutional Restoration

This Essay mounts a fresh normative defense of the president’s exercise of regulatory review authority and his role in enforcing federalism—responsibilities embodied in executive orders issued by President Ronald Reagan and continued in large measure by President William Jefferson Clinton. These executive orders move in some measure toward the restoration of two central principles of the original Constitution—tricameralism (i.e., the combination of bicameralism and the presidential veto) and federalism. The soundness of these orders as a bipartisan, post–New Deal structure of governance derives from their ability to advance the implicit goal of these venerable constitutional principles—producing government regulation that efficiently promotes the public interest rather than special interests.

Originalism, hypothesis testing and big data

In this paper, we describe how data mining and hypothesis testing can advance the analysis of originalism in American constitutional law.

Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm

In this essay I explore the connections between public choice and originalism, arguing that public choice is crucial to development of the originalism both in its diffuse popular and more academic form. As Robert Bork’s famous article, Neutral Principles and Some First Amendment Problems, illustrates, originalism begins as a reaction to the Warren Court, but it is a reaction that largely accepts the primacy of democratic majoritarianism that had begun in the Progressive era. It is public choice more than any other theory of politics that loosens the straightjacket that majoritarianism has on constitutional theory. In its more diffuse form, public choice with its emphasis on the self- interested nature of politicians, the power of interest groups, and the pathologies of collective choice made majority rule less attractive. James Buchanan’s contribution with Gordon Tullock in The Calculus of Consent has particular relevance to originalism, because it decisively breaks from the idea that majority rule should be the presumptive norm in constitutional republics. If constitutions are best made by supermajority rules, as Buchanan and Tullock imply, originalism can be justified as a way of protecting the results of supermajoritarian constitutionmaking from change by either majorities or the peculiar submajorities that are comprised by the justices of the Supreme Court. As important as are the interpretive disputes within originalism, like that between original intent and public meaning, public choice’s inflection point may be more important because it moves originalism from a theory that was concerned primarily with protecting democratic majorities to a theory that was concerned with preserving a republican regime that was in its formation and essence nonmajoritarian. That shift in turn empowered originalism to become a much more aggressive theory of judicial review of legislation, creating more potential conflict between the judiciary and legislative majorities. The essay also briefly critiques some constitutional theorists who have stayed within the Progressive Paradigm, because their theories fail to solve the countermajoritarian difficulty at its heart. It ends with a description of four problems that public choice originalism has yet fully to address.