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Friday, February 12, 2016

A Comparative Critique of "The Ultimate Unifying Approach to Complying With All Laws and Regulations"

In the new Green Bag, Daniel Solove and Woodrow Hartzog have an article titled "The Ultimate Unifying Approach to Complying With All Laws and Regulations." It's described here. This is the SSRN abstract: "There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation."

As with Orin Kerr's A Theory of Law, the fun lies largely in its brevity and in the slight surprise involved in clicking through to the article. (This also means that people who want to get the joke have to download it from SSRN, at least for now and until now. It already has over 1,500 downloads.) I honor that here by offering the standard "SPOILER" alert here and continuing after the jump, where I reveal the approach, take it seriously, and critique it at slightly greater length than the article itself.

Not including the abstract, the article reads, in full:

Be reasonable.

So, how well does this approach work? Of course, like most people, I like it and try to live it, albeit more for moral and ethical reasons than out of a desire to avoid legal consequences. I find it intuitively attractive as a general Golden Rule for living under the law. Insofar as it cuts through the fog, and through reams of paper, to find a common-sense conclusion, I like it for that reason as well. Still, I'm pretty dubious.

One reason is empirical. As Solove's colleague Cynthia Lee notes in her book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, different individuals and communities may have different views about what constitutes reasonableness, and/or about what the reasonable member of a community would consider reasonableness. There is a large literature out there calling for more empirical study of the application of the reasonable person standard, although my quick tour through it suggests that there have been more calls than responses.

Another is, roughly speaking, political and sociological, although it's related to the empirical point. The United States is a highly pluralistic society across any number of dimensions, including political views relevant to questions about how a reasonable person should comply with the law--reasonably; with an eye toward a default assumption of minimal state power and individual liberty; with avoidance or avoision in mind; loyally; purposively; and so on. There are also varied views, exacerbated by the increasingly polarized and heated division over politics and culture, about the substance of individual laws, and that's likely to create inconsistency in and between individuals over whether a particular law or legal rule should "reasonably" be interpreted broadly and purposively or narrowly and literally. 

One might have less reason to worry about all this if the official interpretive community were sufficiently homogeneous in its views of the "reasonable person" to allow such a standard to be interpreted consistently. Decisions by judges and other legally trained officials would then be consistent, and decision by juries would likely be subject to some judge-imposed constraints. Individual actors would "be reasonable" according to their predictions about what judges, lawyers, and government officials, or maybe the professional/managerial class more generally, consider reasonable. There are obvious problems with this, however. One is the simple question whether the class of people subject to the laws is able to make these sorts of predictions. Another, lying somewhere between descriptive and normative concerns, is whether such predictions will be more difficult if there is a widening gulf between the professional/managerial class and others. On the normative side of the line, asking such a question raises obvious concerns about political legitimacy.

All that aside, is it accurate to describe the relevant interpretive community in the United States as sufficiently homogeneous?  Views differ, but I don't think so. Notwithstanding complaints that the legal profession is not sufficiently diverse, it is already (or also) the case that there is a great deal of variation and conflict in the political, social, and cultural views of lawyers, a conflict that plays itself out, among other things, in debates, divisions, and polarization within the legal community that parallel the debate and polarization within the broader political and civic community. Because law in the United States is so often political, and so many lawyers and legal thinkers are content or eager to treat it as such, or believe that they must do so rather than "unilaterally disarm," that condition is not going away any time soon. Any society, or legal interpretive community within that society, in which there is strong disagreement over something as fundamental, simple, and vital as how to interpret a statute is not well-suited to live by the injunction to "be reasonable."   

This brings me to an interesting (to me, admittedly) comparative point. Other legal interpretive communities do operate by various "be reasonable" rules. In Canada, for instance, courts often quote Elmer Driedger's book (now carried on by Ruth Sullivan) on the Construction of Statutes and its description of the "Golden Rule" of statutory interpretation: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." This is essentially an injunction to "be reasonable" in the interpretation of a statute, and Canadian courts have regularly said as much. Similarly, Canadian constitutional analysis, like judicial constitutional review in many countries, relies heavily on a proportionality test, and there too reasonableness is a linchpin of the analysis.  It is sometimes lamented that American constitutional doctrine is not conducted more explicitly in terms of reasonableness, balancing, and proportionality, and Justice Breyer, among others, has argued that it should be.

My sense as a former member of the Canadian legal interpretive community, however, is that however well reasonableness functions as a guide, much of that success has to do not with the test, but with the homogeneity of the interpretive community. It's a big country, of course; moreover, one often associates it with the split between Quebec and the rest of Canada, or between English-speaking and French-speaking Canadians. My take, however, is that Canadian law, government, and administration have generally been overseen by a smaller mandarin class within which there is a fair amount of cultural similarity and political consensus. There are about 23 law schools in Canada, of which say 17 are of reasonable long standing and establishment and among which the "tiering" is nowhere near as strong as among American law schools. A larger number of faculty within those schools come from outside the country than was the case when I was a student in the early 90s; still, there is a substantial amount of cultural and especially political consensus, and unity and similarity of training, among them. And the same kind of relative educational, cultural, and political homogeneity also characterizes the political/administrative managerial class more broadly. It is still largely captured by people with similar educations and views, coming from or having lived in a relatively small number of major Canadian cities: Toronto, Vancouver, Montreal, Ottawa/Hull, maybe a couple of others. If you think "Washington" is an epithet for people captured by the Beltway culture, and are struck by the tiny number of law schools responsible for producing our Supreme Court justices, you're right. But even so, the legal and political culture here is relatively diverse and divided, even within DC, compared to the Canadian mandarinate, and notwithstanding other ways in which that group has become diverse along other dimensions such as race, ethnicity, and religion. And the American professional/managerial class lives, works, and disagrees in many other places than Washington.

Indeed, from my distant perspective, one of the most interesting and salutary things about the rise of the Conservative Party in Canada was that it revealed a gulf between the mandarin culture and at least some of the regular citizens in at least some of the regions of Canada--especially the West, which, Vancouver and Victoria aside, has different views and much less Ottawa-based political representation in the political class than the Toronto-Ottawa-Montreal nexus. That's not to say I shared that party's views. As a Torontonian and a member of the professional/managerial class, I lamented the death of the much more "reasonable" Progressive Conservative Party; and, if I didn't much care for the Liberal Party given its ideological vagueness and the inevitable corruption that afflicts a party long used to power, I was generally comfortable being governed by it, for similar reasons. But it was interesting and, I think, valuable to see the West take a greater share of the political power from which it had generally been frozen out, and to see the ways in which the views of the country were different from those of the average entrenched deputy minister. That idea ought to resonate some. We are, after all, seeing a political season in which revolt against the United States's own professional/managerial establishment and its shared values and assumptions is a major element in the successes of challengers in both parties.   

In short (hah!), if a "be reasonable" rule works in Canada, and perhaps in other countries that also rely on things like proportionality, it may be not because there's much content to or value in the rule itself, but because the class interpreting it already shared a substantial consensus and worldview. I suspect that such an interpretive community would have reached similar results and consensus if it had instead adopted a fairly strict rule of textualism as the approach to interpreting statutes, and a more originalist and/or categorical approach to constitutional interpretation--that, indeed, textualism, originalism, and categoricalism in legal interpretation could all be undertaken more successfully in that legal culture than they could be or are in the United States. It may also have something to do with the degree to which law is or isn't consistently made a vehicle of "politics" there, compared to the United States.   

I will make explicit what I've already implied: in such a country, if the professional/managerial class shares a strong political and cultural consensus but the consensus is not shared across the country and some regions, classes, and views are absent or shut out from that class, then there are good reasons to think that even a 'successful' "be reasonable" legal interpretive regime there has serious political legitimacy problems. But neither those problems nor the day-to-day stability and consistency of the interpretive regime have much to do with the approach to legal interpretation that this class adopts. And American champions of things like proportionality, balancing, and "reasonableness" as interpretive tools--for rules, statutes, constitutional questions, and other issues--who point abroad for examples of the value and workability of such a system should dig deeper into the homogeneity of the legal classes charged with administering those systems, and into how representative and politically legitimate they are. In any event, and despite the many ways in which we already live under something of the rule of a professional/managerial class here, as people often complain, the United States is too culturally and politically diverse for "be reasonable" to be a sufficient guide in general, however well it functions for individuals. However much people like me are attracted to "be reasonable" as a guide, and however much it looks like plain common sense, we should also recognize the degree to which the proposed rule is heavily freighted with politics--and the politics of a particular class, at that. 

I grant that this is a slightly lengthier critique than the article itself. If I were doing it Green Bag-style, I suppose my response to the Solove/Hartzog article would be, "It's complicated--and political."

Posted by Paul Horwitz on February 12, 2016 at 01:35 PM in Paul Horwitz | Permalink

Comments

You realize that this response is about 3 orders of magnitude longer than the original article. That has to set some sort of record, I would think!

Posted by: Bruce Boyden | Feb 12, 2016 2:03:29 PM

Your Green Bag-style response is better. Much better. Many fewer words but still somehow says much more.

Anyone really disagree?

Posted by: Goober | Feb 12, 2016 3:15:53 PM

Hell, even I agree. But adding the comparative bit--"It's complicated--and political. And consider other countries."--already had me up to eight words, so I figured what the hell.

Posted by: Paul Horwitz | Feb 12, 2016 8:13:23 PM

I'm delighted our piece sparked such extensive discussion. I will leave it to interpreters as to whether we are advancing our theory as an actual account of the law or as a sarcastic critique of legal standards. We hope we will one day be as fortunate as Orin Kerr to spawn a symposium on our piece. But I must adjust my hopes to be more realistic, so I'm only hoping for a SCOTUS citation.

Posted by: Daniel Solove | Feb 14, 2016 3:01:50 AM

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