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Brennan Lecture

An earlier version of this text was delivered as the James Madison Lecture at the New York University School of Law on October 13, 2016.

Observers have suggested that adding sources of interpretation tends to increase interpreter discretion. The idea is embedded in a quip, attributed to Judge Harold Leventhal, that citing legislative history is like “looking over a crowd and picking out your friends.” Participants in debates over interpretive method have applied the idea to the proliferation of other sources as well, including canons of construction and originalist history. But the logic of “more sources, more discretion” has escaped serious testing. And predicting the effect of source proliferation is not a matter of logic alone. The empirical study of how information loads affect behavior has grown dramatically in recent decades, though almost without notice in legal scholarship on interpretive method.

This Article tests the logic and evidence for “more sources, more discretion.” The idea turns out to be incorrect, without more, as a matter of logic. Adding sources tends to reduce the chance of discretion using a simple model of interpretation. This starter model depicts judges as aggregators of source implications, and it draws on basic probability theory and computer simulations to illustrate. The analysis does change if we allow judges to “spin” or “cherry pick” sources, but without much hope for limiting discretion by limiting sources. Of course, judges will not always behave like machines executing instructions or otherwise follow the logic of these models. Thus the Article goes on to spotlight provocative empirical studies of information-load effects, develop working theories of interpreter behavior, and present new evidence.

After emphasizing that interpreters might ignore additional information at some point, the Article tests three other theories. First, an extended dataset casts doubt on an earlier study that linked a growing stock of precedents to increased judicial discretion. Adding to the pile of precedents seems to have no simple pattern of effect on discretion. Second, existing studies indicate that increasing information loads might prompt judges to promote the status quo, and new data suggest that this effect depends on the type of information added. The number of sources cited in appellant briefs appears to have no effect on judges’ willingness to affirm—in contrast with the number of words and issues presented, which may have opposing effects. Third, an expanded dataset supports an earlier finding that judges who face a large number of doctrinal factors might weight those factors in a quasi-legal fashion. This time-saving prioritization does not seem to follow conventional ideological lines.

With simple intuitions in doubt, thoughtful work remains to be done on the effects of source proliferation. Observers interested in judicial discretion have good reason to look beyond source proliferation to find it. And observers interested in institutional design have good reason to rethink the range of consequences when information is added to our judicial systems.

Political gerrymandering has been a feature of our republic since the early days of the United States. The majority of states in the U.S. allow state legislators to draw the district lines for legislative elections. Legislator-led redistricting is plagued with legislator conflict of interest, producing elections that are spectacularly uncompetitive and rampant with partisanship. In the process, the interests of voters are in conflict with the party and individual interests of legislators, threatening the legitimacy of our republican form of government. The results are often incumbent entrenchment in “safe seats” and overt partisan-based district manipulation. While not necessarily indicative that the will of the people is being usurped by the ambitions of legislators, one must inevitably ask, are voters choosing their legislators or are legislators choosing their voters? Until recently, the Supreme Court has taken a “hands-off” approach to remedying the negative effects of the partisan gerrymandering that occurs in states employing legislator-led redistricting. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court upheld Arizona voters’ right to transfer redistricting authority from state legislators to an independent commission of citizens via ballot initiative. This Note argues that the delegation theory applied by the Court in the Arizona Independent Redistricting Commission decision, and the authority of voters to be the supreme regulators of the political market, is supported by the Framers’ vision of political competition and accountability as articulated in The Federalist Papers.

Objective facts—while perhaps always elusive—are now an endangered species. A mix of digital speed, social media, fractured news, and party polarization has led to what some call a “post-truth” society: a culture where what is true matters less than what we want to be true. At the same moment in time when “alternative facts” reign supreme, we have also anchored our constitutional law in general observations about the way the world works. Do violent video games harm child brain development? Is voter fraud widespread? Is a “partial-birth abortion” ever medically necessary? Judicial pronouncements on questions like these are common, and—perhaps more importantly—they are being briefed by sophisticated litigants who know how to grow the factual dimensions of their case in order to achieve the constitutional change that they want.

The combination of these two forces—fact-heavy constitutional law in an environment where facts are easy to manipulate—is cause for serious concern. This Article explores what is new and worrisome about fact-finding today, and it identifies constitutional disputes loaded with convenient but false claims. To remedy the problem, we must empower courts to proactively guard against alternative facts. This means courts should push back on blanket calls for deference to the legislative record. Instead, I suggest re-focusing the standards of review in constitutional law to encourage fact-checking. It turns out some factual claims can be debunked with relative ease, and I encourage deference when lower courts rise above the fray and do just that.

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s argument for a form of agency fragmentation called the new “administrative separation of powers,” a structure consisting of three fundamental sets of actors: agency heads, civil society, and the civil service. According to Michaels, his thought-provoking idea has roots in the traditional separation of powers among the branches of government. Michaels also claims that these three intra-agency actors are able to maintain a “self-regulating ecosystem” that allows agencies to improve their functions similarly to the way that the constitutional checks and balances sharpen the operation of the political branches.

For Michaels’s tripartite agency to be legitimately characterized as a form of separation of powers, however, there must be a meaningful connection between the two frameworks. As of now, the analogy is hindered by some essentials aspects in which Michaels’s agency players do not reflect the three branches of government. These include, for example, each administrative stakeholder’s relative inability to protect its own jurisdiction from encroachment by the others and constraints on agencies’ capacity to further rule of law values. These limitations render constitutional separation of powers principles less valuable to the development of Michaels’s theory, because they reduce the extent to which the tripartite agency might, in fact, behave like the political branches.

In addition, both the use of Michaels’s model for executive-checking purposes and the ultimate success of his theory’s overall execution depend on the extent to which they
are grounded in the concrete characteristics of agencies and the polity. Additional substantiation of Michaels’s tripartite could be furthered by analysis of the diversity
among agency heads and civil servants across the executive branch and of the weaknesses in civil society’s ability to leverage its interests vis-à-vis government officials. Those seeking to realize the promise of Michaels’s model should also consider the impact of differences in administrative, political and societal structures, orientations and incentives on Michaels’s framework.

Bijal Shah, Toward An Intra-Agency Separation of Powers​, 92 N.Y.U. L. Rev. Online 101 (2017).

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s claim, insightfully developed in his recent Article, that the administrative realm functions as a self-regulating ecosystem. Michaels’s claim rests on his description of a trio of administrative rivals that mirror the constitutional branches: The civil service manifests key rule-of-law qualities of the judiciary, agency heads mimic the partisan leadership of the presidency, and—of greatest interest here—civil society plays the “popular, deliberative” role of Congress. Michaels argues that this “administrative separation of powers” legitimates and appropriately constrains agency action. Further intervention by the constitutional branches, in his view, is generally unnecessary and destabilizing.

Michaels’s intriguing comparison between civil society and Congress raises important questions about the oversight function of each institution. I argue that substituting civil society for Congress runs the risk of replicating—and likely exacerbating—pathologies of inequality and exclusion that undermine oversight’s democratic value. Both Congress and civil society are prone to elitism and representational failures that fall short of constitutional ideals. Yet because their respective mandates, structures, and capacities differ, the two institutions are likely to perform better oversight in tandem than civil society could alone. Congressional oversight, I argue, may channel a different and somewhat more inclusive perspective than civil society alone. At the same time, civil society has advantages over Congress: It can give voice to political minorities, act more swiftly and decisively, and engage with agencies more consistently over time. Taking account of the flaws and attributes of each institution thus points toward a reorientation of Michaels’s model. Rather than casting the administrative sphere as self-regulating in isolation, we should focus on the complementary nature of the administrative and constitutional rivals.

Miriam Seifter, Complementary Separations of Power, 91 N.Y.U. L. Rev. Online 186 (2016).