John O. McGinnis - Academia.edu (original) (raw)

Papers by John O. McGinnis

SSRN Electronic Journal, 2017

*. George C. Dix Professor, Northwestern Pritzker School of Law. Thanks to Mark Movsesian, Nelson... more *. George C. Dix Professor, Northwestern Pritzker School of Law. Thanks to Mark Movsesian, Nelson Lund, and participants at a Northwestern workshop. **. Associate, Boies Schiller Flexner LLP. I would like to thank my family for their support in my academic and professional pursuits-especially my late grandfather William J. Roche and grandmother Isabelle Grodem who I hope smile down while they read this. 1. GEORG FRIEDRICH KNAPP, THE STATE THEORY OF MONEY 2 (1924).

Accelerating Democracy

This chapter focuses on artificial intelligence (AI). The development of machine intelligence can... more This chapter focuses on artificial intelligence (AI). The development of machine intelligence can directly improve governance, because progress in AI can help in assessing policy consequences. More substantial machine intelligence can process data, generate hypotheses about the effects of past policy, and simulate the world to predict the effects of future policy. Thus, it is more important to formulate a correct policy toward AI than toward any other rapidly advancing technology, because that policy will help advance beneficial policies in all other areas. The holy grail of AI is so-called strong AI, defined as a general purpose intelligence that approximates that of humans. The correct policy for AI—substantial government support for Friendly AI—both promotes AI as an instrument of collective decision making and helps prevent the risk of machine takeover.

Harvard Journal of Law Public Policy, Sep 22, 2001

Technology does not change the essential problems that constitutionalism (1) seeks to address bec... more Technology does not change the essential problems that constitutionalism (1) seeks to address because these problems are rooted in the enduring nature of man. Technological change, however, can transform man's environment. A different environment, in turn, may require substantially modified forms of constitutionalism even if the underlying objectives remain constant. As the great political philosopher Edmund Burke recognized, the key to sound structures of governance in every age and place is to understand the intersection of man's enduring nature with his particular circumstances. (2) Because technology increasingly shapes the circumstances of modern man, technology is becoming progressively more important to constitutionalism. I. THE ENDURING GOALS OF CONSTITUTIONALISM Before examining how technology changes the forms of constitutionalism, it is essential to understand what in human nature creates the problems constitutionalism must try to solve. It is beyond the scope of this short essay to offer a complete description of the enduring goals of constitutionalism in light of the realities of human nature, but here is a thumbnail sketch. Humans, like many other animals that live in groups, have two modes of gaining resources, both backed by a set of instincts. (3) One mode is exchange, by which humans provide goods and services in return for other goods and services. The other is hierarchy, by which humans gain goods and services based on their position and status in the social order. If exchange is the prevalent mode of acquiring resources in society, wealth increases because individuals gain incentives to create what others want. (4) If hierarchy is the prevalent mode of acquisition, wealth dissipates because individuals are afraid to create what others can take by virtue of their position in the social hierarchy. The latter mode also breeds conflict, because individuals gain incentives to fight for a better position in the pecking order. (5) In a world shaped by political hierarchy, it is natural for each citizen to regard his fellow citizens either as sources of wealth he can seize or as threats to commandeer his property. (6) Thus, the prospect of acquisition through hierarchy seems to sow suspicion and division among all citizens. Accordingly, for moral as well as economic reasons, sound constitutive structures of government aim at promoting exchange and constraining hierarchy. (7) Achieving these goals is more complicated than it might seem, because a government that is powerful enough to protect both the right to exchange and the fruits of exchange is also powerful enough to take away property. In other words, although government can restrain bands of predators from oppressing liberty and taking away property, government itself as a band of humans is a potential predator that needs to be restrained. (8) As St. Augustine wrote, "Justice being taken away, then, what are kingdoms but great robberies?" (9) Constitutionalism depends on technology because the structure of restraints on government most likely to produce justice varies with the technology of the time. This point is illustrated by how the most important original justice-producing structure of the Constitution -- federalism -- was dependent on the technology of its day. II. THE TECHNOLOGICAL UNDERPINNINGS OF FEDERALISM'S CREATION AND DECLINE Federalism -- the concept that encapsulates the doctrine of enumerated powers -- was the Framers' most important contribution to solving the greatest dilemma of political theory. (10) Democracy does not dissolve the dilemma that a government powerful enough to protect liberty and property may be a government powerful enough to threaten liberty and property. (11) An elected ruling coalition may tax and regulate its members to their detriment. Taxation and regulation designed to redistribute opportunities and property from certain groups to others reduces incentives for productive activity and restricts the pursuit of happiness. …

SSRN Electronic Journal, 2001

ABSTRACT In this essay I argue that a system of vouchers better realizes the principles of the Fr... more ABSTRACT In this essay I argue that a system of vouchers better realizes the principles of the Framers in today's world than our current system, where all publicly funded primary and secondary schools are publicly controlled. The religion clauses of the Constitution are designed to allow citizens to express their values and opinions through their own religious choices, free from interference by the government. Empowering individuals to choose a school that reflects their values, religious or otherwise, better preserves such freedom than coercing individuals to pay twice for education - once for a government school that they reject and once for a private school that acts consistently with their values. My argument moves in three stages. First, I very briefly sketch some of the Framers' principles of religious freedom. Then through a series of hypotheticals I show that a voucher program can achieve all the legitimate goals for government involvement in education, such as providing equal opportunity. In contrast, I show that opposition to vouchers can be traced to educational goals that are in tension with the Framers' views, such as those of Jean-Jacques Rousseau. Rousseau thought that the state must exercise substantial control over the ideological content of education in the name of equality and democracy. Such goals necessarily subordinate the liberty of opinion that the religion clauses were designed to protect.

SSRN Electronic Journal, 2000

ABSTRACT This essay argues that limitations on campaign expenditures by individuals or associatio... more ABSTRACT This essay argues that limitations on campaign expenditures by individuals or associations are unconstitutional and would damage economic growth. First, campaign expenditure limitations lack neutrality and would empower the media and other groups whose business is influencing politics at the expense of citizens who engage in other enterprises. There is no justification under the First Amendment for the government to prevent citizens from renting the media to make political statements, while owners of media enjoy the right to influence elections as they please. Campaign finance limitations would also limit economic growth because they would create a monopoly politics dominated by the scribal class ? the media, academics and Hollywood - with barriers to entry against the materially productive. Second, the essay argues that campaign expenditures limitations offend both the original understanding of the First Amendment and modern First Amendment doctrine. Third, the essay also responds to some criticism of my position from Frank Michelman of Harvard Law School and Samuel Issacharoff of Columbia Law School. Finally, the essay addresses the validity of the current limits on how much money individuals and associations may contribute to others' campaigns.

Harv. JL & Pub. Pol'y, 2008

... free-form methods of judicial interpreta-tion do not provide similar assurance of superiority... more ... free-form methods of judicial interpreta-tion do not provide similar assurance of superiority ... lawmaking.39 Although this Essay defends originalism as a pragmatic interpretive approach, originalism ... Americans and women did not vote on the Constitution and key amendments.54 ...

The University of Chicago Law Review, 1996

for helpful comments on various drafts. I also am grateful to colleagues at faculty workshops at ... more for helpful comments on various drafts. I also am grateful to colleagues at faculty workshops at Cardozo and Seton Hall. The variety of their questions and critiques provided yet more support for a theory of the First Amendment that puts the individual first. Jason Lief supplied splendid research and editing assistance. Thanks too to Daniel Goldfisher and Dara Norman for assistance with the terminology of cyberspace. I should note that as an attorney in the Reagan and Bush administrations I was involved in formulating their position on the fairness doctrine-an issue briefly discussed in this Article. ' See Steven Shiffrin, The Politics of the Mass Media and the Free Speech Principle, 69 Ind L J 689, 716 (1994) (concluding that the free speech principle is more "solidly anchored" in our culture than ever before). In this paper, unless otherwise indicated, I use the term "First Amendment" as a shorthand for the Free Speech and Free Press Clauses.

The Cambridge Handbook of Artificial Intelligence

Proceedings of the 16th edition of the International Conference on Articial Intelligence and Law, 2017

Patent lawsuits are costly and time-consuming. An ability to forecast a patent litigation and tim... more Patent lawsuits are costly and time-consuming. An ability to forecast a patent litigation and time to litigation allows companies to better allocate budget and time in managing their patent portfolios. We develop predictive models for estimating the likelihood of litigation for patents and the expected time to litigation based on both textual and non-textual features. Our work focuses on improving the state-of-the-art by relying on a different set of features and employing more sophisticated algorithms with more realistic data. The rate of patent litigations is very low, which consequently makes the problem difficult. The initial model for predicting the likelihood is further modified to capture a time-to-litigation perspective.

Accelerating Democracy, 2012

This chapter considers the impact of new technologies on the administrative state. Information te... more This chapter considers the impact of new technologies on the administrative state. Information technology has the potential to improve administrative government by changing the nature of the information on which it relies. Theorists in the New Deal may have been correct that Congress could not effectively gather information to create the detailed policy directives that would achieve its legislative objectives. But regulatory agencies have not proved all that much better. Only by requiring agencies to rely on the more dispersed sources of information provided by markets and experiments is the situation likely to improve. By creating more objective measures of results, the use of such information technologies also constrains the influence of special interests.

Accelerating Democracy, 2012

SSRN Electronic Journal, 2020

Political polarization is perhaps the great political problem of our time. While it has many sour... more Political polarization is perhaps the great political problem of our time. While it has many sources, one of its most important causes, which has not been previously discussed, is the deformation of our governmental structure. That structure has been transformed from an arrangement where consensus was needed to enact important policy changes to one where the President or the Supreme Court can adopt such change unilaterally. This transformation has greatly contributed to political polarization. Congress’s delegation of authority to administrative agencies to make policy allows the President’s administration to make important regulations. Because the President represents the median of his party, not of the nation, his agents' decisions normally are more extreme than what would emerge from the congressional political process, particularly when, as is usually the case, the houses of Congress and the President are divided between the parties. Similarly, presidential claims of authority to engage in military interventions and to make substantial international agreements on their own – rather than with congressional authority as the Constitution requires – require no political consensus even on decisions of fundamental importance to the nation. Finally, the Supreme Court’s arrogation to itself of the power to create or eliminate rights also forestalls compromise, infuriating those who disagree with its ukases. These diverse constitutional departures have a common effect: They generate extreme outcomes, promote polarization, and block the dialogue that can lead to fruitful compromise. Understanding the institutional roots of polarization provides a roadmap to tempering our current discontents. Delegation should be curbed, forcing Congress to make the key decisions. The President's initiation of hostilities and executive agreements should be allowed only if they are swiftly ratified by Congress. The Supreme Court should refrain from creating or eliminating rights, leaving fundamental change to the constitutional amendment process. None of these reforms require us to begin the world anew, but instead to return to tried and tested structures. They would also transform our political culture. In a politics where compromise is routinely required, citizens would become less polarized, seeing each other less as targets or threats and more as partners in a common civic enterprise.

Originalism is often thought, by both its advocates and its critics, to be inconsistent with prec... more Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent. This Article challenges this common view of originalism and argues that nothing in the Constitution forbids judges from following precedent. First, the Constitution as a matter of judicial power incorporates a minimal notion of precedent. Second, the Constitution treats precedent as a matter of federal common law that it is revisable by congressional statute. Thus, the courts in the first instance and Congress ultimately have significant discretion over what precedent rules should be adopted. Having established that the original meaning of the Constitution does not forbid precedent, the next question is: what is the normatively best approach to precedent under originalism? As consequentialists, we argue that precedent doctrine should consist of rules that require precedent to be followed when doing so would produce net benefits and that require original meaning to be applied instead of precedent in other cases We then balance these benefits of following the original meaning with the benefits of following precedent. This Article, while not offering a full precedent doctrine, does recommend three specific precedent rules. First, precedent should be followed when it is necessary to avoid imposing enormous costs. Second, precedent should be followed when it is entrenched-when the precedent enjoys strong support that is comparable to that enjoyed by a constitutional amendment. Third, precedent should be followed when it corrects the results of a failure in the original super majoritarian process of making the Constitution, such as the exclusion of African Americans.

Harvard Journal of Law Public Policy, 2012

My subject is federalism and rights. I will argue that jurisdictional competition is, by and larg... more My subject is federalism and rights. I will argue that jurisdictional competition is, by and large, an effective way for society to discover a good set of rights for people to flourish. It is wholly appropriate to discuss federalism in relation to law and economics because federalism creates a market for governance. (1) Like other market processes, federalism offers a process of discovery--for individuals who can find states with the rights that allow them to flourish and for society that can allow it to evaluate best the effects of different rights by comparing the results in different jurisdictions. I draw on work on which Professor Nelson Lund and I collaborated. (2) I will begin with an abstract discussion of the advantages of competitive federalism and then illustrate these advantages in a concrete case, suggesting that competitive federalism provides a better alternative than the judicial doctrine of substantive due process for creating freedoms connected to sexual autonomy. This area is a useful one in which to compare federalism and the Supreme Court as mechanisms for creating rights, not simply because writing about rights of sexual freedom keeps people's attention but because it is in the area of sexual autonomy that the Court has most usurped the process of competitive federalism. I begin with two simple premises--one about the content of rights and another about their epistemology. First, good societies are concerned with protecting both liberty and other conditions for human flourishing. (3) In a good society, people should have freedom to act, but legal norms also should help sustain the conditions for the success of family life, friendship, and other social goods. In short, we should seek the set of rights that will maximize freedoms without permitting these rights to turn into license--the kind of activity that damages other social goods. (4) My second premise is that it is hard to draw a line between liberty and license. This is because it is difficult to assess the consequences of freedoms and restrictions in the social realm-maybe even more difficult than it is to assess than the effects of economic regulation because of their scope and subtlety. (5) Like many law professors, I have predictions about the likely effects of many rights that are debated. But everyone, even a law professor, must admit occasionally that he is fallible in his social and moral intuitions. Because of such all too human fallibility, a desirable feature of constitutional design is a structure that helps us calculate together the consequences of our social policies by providing us evidence beyond just our intuitions. The need for such a mechanism of individual and social discovery offers a powerful argument of a presumption against a monopolized process for creating rights whether the monopoly is held by Congress or the courts. I say presumption because I do not deny that some rights may best be protected at the federal level, and some should be protected against legislative abridgement. We have a constitutional process that can entrench specific rights at the federal level so long as they obtain supermajority support. (6) That consensus gives us greater confidence than we have in ordinary politics. In contrast with monopoly power at the federal level, states take part in a process that is relatively competitive, better approximating the private market. (7) To be sure, federal constitutional law plays a crucial role in creating the framework for competitive federalism by protecting the free movement of people and information among the States. (8) These protections leave individuals "free to exit [their states] if the balance between liberty and license becomes radically off-kilter." (9) The paradox of a system of constitutional federalism is that two levels of government with defined roles can better protect freedom than one by permitting states to choose a bundle of rights while the federal government guarantees the rights of movement and information. …

SSRN Electronic Journal, 2010

ABSTRACT This essay argues for government support for “friendly AI” - a kind of artificial intell... more ABSTRACT This essay argues for government support for “friendly AI” - a kind of artificial intelligence that will not endanger humans. AI is not, contrary to some theorists, necessarily a threat to humans, because AI will not necessarily be anthropomorphic and possess an all-too-human will to power. Government support for friendly AI makes it more like that friendly AI will emerge before other more dangerous kinds. Moreover, such support is also justified because the acceleration of AI will aid in the analysis of the risks and benefits created by the many other kinds of technology that are also accelerating - from nanotechnology to biotechnology. Only AI of all the many accelerating technologies of our present day helps perform this crucial function. Alternative approaches to AI - relinquishment or regulation of kinds of AI that might be deemed harmful - are infeasible. Given that AI is so central to modern military power, relinquishing or inhibiting AI would empower the worst nations on earth.

SSRN Electronic Journal, 2017

*. George C. Dix Professor, Northwestern Pritzker School of Law. Thanks to Mark Movsesian, Nelson... more *. George C. Dix Professor, Northwestern Pritzker School of Law. Thanks to Mark Movsesian, Nelson Lund, and participants at a Northwestern workshop. **. Associate, Boies Schiller Flexner LLP. I would like to thank my family for their support in my academic and professional pursuits-especially my late grandfather William J. Roche and grandmother Isabelle Grodem who I hope smile down while they read this. 1. GEORG FRIEDRICH KNAPP, THE STATE THEORY OF MONEY 2 (1924).

Accelerating Democracy

This chapter focuses on artificial intelligence (AI). The development of machine intelligence can... more This chapter focuses on artificial intelligence (AI). The development of machine intelligence can directly improve governance, because progress in AI can help in assessing policy consequences. More substantial machine intelligence can process data, generate hypotheses about the effects of past policy, and simulate the world to predict the effects of future policy. Thus, it is more important to formulate a correct policy toward AI than toward any other rapidly advancing technology, because that policy will help advance beneficial policies in all other areas. The holy grail of AI is so-called strong AI, defined as a general purpose intelligence that approximates that of humans. The correct policy for AI—substantial government support for Friendly AI—both promotes AI as an instrument of collective decision making and helps prevent the risk of machine takeover.

Harvard Journal of Law Public Policy, Sep 22, 2001

Technology does not change the essential problems that constitutionalism (1) seeks to address bec... more Technology does not change the essential problems that constitutionalism (1) seeks to address because these problems are rooted in the enduring nature of man. Technological change, however, can transform man's environment. A different environment, in turn, may require substantially modified forms of constitutionalism even if the underlying objectives remain constant. As the great political philosopher Edmund Burke recognized, the key to sound structures of governance in every age and place is to understand the intersection of man's enduring nature with his particular circumstances. (2) Because technology increasingly shapes the circumstances of modern man, technology is becoming progressively more important to constitutionalism. I. THE ENDURING GOALS OF CONSTITUTIONALISM Before examining how technology changes the forms of constitutionalism, it is essential to understand what in human nature creates the problems constitutionalism must try to solve. It is beyond the scope of this short essay to offer a complete description of the enduring goals of constitutionalism in light of the realities of human nature, but here is a thumbnail sketch. Humans, like many other animals that live in groups, have two modes of gaining resources, both backed by a set of instincts. (3) One mode is exchange, by which humans provide goods and services in return for other goods and services. The other is hierarchy, by which humans gain goods and services based on their position and status in the social order. If exchange is the prevalent mode of acquiring resources in society, wealth increases because individuals gain incentives to create what others want. (4) If hierarchy is the prevalent mode of acquisition, wealth dissipates because individuals are afraid to create what others can take by virtue of their position in the social hierarchy. The latter mode also breeds conflict, because individuals gain incentives to fight for a better position in the pecking order. (5) In a world shaped by political hierarchy, it is natural for each citizen to regard his fellow citizens either as sources of wealth he can seize or as threats to commandeer his property. (6) Thus, the prospect of acquisition through hierarchy seems to sow suspicion and division among all citizens. Accordingly, for moral as well as economic reasons, sound constitutive structures of government aim at promoting exchange and constraining hierarchy. (7) Achieving these goals is more complicated than it might seem, because a government that is powerful enough to protect both the right to exchange and the fruits of exchange is also powerful enough to take away property. In other words, although government can restrain bands of predators from oppressing liberty and taking away property, government itself as a band of humans is a potential predator that needs to be restrained. (8) As St. Augustine wrote, "Justice being taken away, then, what are kingdoms but great robberies?" (9) Constitutionalism depends on technology because the structure of restraints on government most likely to produce justice varies with the technology of the time. This point is illustrated by how the most important original justice-producing structure of the Constitution -- federalism -- was dependent on the technology of its day. II. THE TECHNOLOGICAL UNDERPINNINGS OF FEDERALISM'S CREATION AND DECLINE Federalism -- the concept that encapsulates the doctrine of enumerated powers -- was the Framers' most important contribution to solving the greatest dilemma of political theory. (10) Democracy does not dissolve the dilemma that a government powerful enough to protect liberty and property may be a government powerful enough to threaten liberty and property. (11) An elected ruling coalition may tax and regulate its members to their detriment. Taxation and regulation designed to redistribute opportunities and property from certain groups to others reduces incentives for productive activity and restricts the pursuit of happiness. …

SSRN Electronic Journal, 2001

ABSTRACT In this essay I argue that a system of vouchers better realizes the principles of the Fr... more ABSTRACT In this essay I argue that a system of vouchers better realizes the principles of the Framers in today's world than our current system, where all publicly funded primary and secondary schools are publicly controlled. The religion clauses of the Constitution are designed to allow citizens to express their values and opinions through their own religious choices, free from interference by the government. Empowering individuals to choose a school that reflects their values, religious or otherwise, better preserves such freedom than coercing individuals to pay twice for education - once for a government school that they reject and once for a private school that acts consistently with their values. My argument moves in three stages. First, I very briefly sketch some of the Framers' principles of religious freedom. Then through a series of hypotheticals I show that a voucher program can achieve all the legitimate goals for government involvement in education, such as providing equal opportunity. In contrast, I show that opposition to vouchers can be traced to educational goals that are in tension with the Framers' views, such as those of Jean-Jacques Rousseau. Rousseau thought that the state must exercise substantial control over the ideological content of education in the name of equality and democracy. Such goals necessarily subordinate the liberty of opinion that the religion clauses were designed to protect.

SSRN Electronic Journal, 2000

ABSTRACT This essay argues that limitations on campaign expenditures by individuals or associatio... more ABSTRACT This essay argues that limitations on campaign expenditures by individuals or associations are unconstitutional and would damage economic growth. First, campaign expenditure limitations lack neutrality and would empower the media and other groups whose business is influencing politics at the expense of citizens who engage in other enterprises. There is no justification under the First Amendment for the government to prevent citizens from renting the media to make political statements, while owners of media enjoy the right to influence elections as they please. Campaign finance limitations would also limit economic growth because they would create a monopoly politics dominated by the scribal class ? the media, academics and Hollywood - with barriers to entry against the materially productive. Second, the essay argues that campaign expenditures limitations offend both the original understanding of the First Amendment and modern First Amendment doctrine. Third, the essay also responds to some criticism of my position from Frank Michelman of Harvard Law School and Samuel Issacharoff of Columbia Law School. Finally, the essay addresses the validity of the current limits on how much money individuals and associations may contribute to others' campaigns.

Harv. JL & Pub. Pol'y, 2008

... free-form methods of judicial interpreta-tion do not provide similar assurance of superiority... more ... free-form methods of judicial interpreta-tion do not provide similar assurance of superiority ... lawmaking.39 Although this Essay defends originalism as a pragmatic interpretive approach, originalism ... Americans and women did not vote on the Constitution and key amendments.54 ...

The University of Chicago Law Review, 1996

for helpful comments on various drafts. I also am grateful to colleagues at faculty workshops at ... more for helpful comments on various drafts. I also am grateful to colleagues at faculty workshops at Cardozo and Seton Hall. The variety of their questions and critiques provided yet more support for a theory of the First Amendment that puts the individual first. Jason Lief supplied splendid research and editing assistance. Thanks too to Daniel Goldfisher and Dara Norman for assistance with the terminology of cyberspace. I should note that as an attorney in the Reagan and Bush administrations I was involved in formulating their position on the fairness doctrine-an issue briefly discussed in this Article. ' See Steven Shiffrin, The Politics of the Mass Media and the Free Speech Principle, 69 Ind L J 689, 716 (1994) (concluding that the free speech principle is more "solidly anchored" in our culture than ever before). In this paper, unless otherwise indicated, I use the term "First Amendment" as a shorthand for the Free Speech and Free Press Clauses.

The Cambridge Handbook of Artificial Intelligence

Proceedings of the 16th edition of the International Conference on Articial Intelligence and Law, 2017

Patent lawsuits are costly and time-consuming. An ability to forecast a patent litigation and tim... more Patent lawsuits are costly and time-consuming. An ability to forecast a patent litigation and time to litigation allows companies to better allocate budget and time in managing their patent portfolios. We develop predictive models for estimating the likelihood of litigation for patents and the expected time to litigation based on both textual and non-textual features. Our work focuses on improving the state-of-the-art by relying on a different set of features and employing more sophisticated algorithms with more realistic data. The rate of patent litigations is very low, which consequently makes the problem difficult. The initial model for predicting the likelihood is further modified to capture a time-to-litigation perspective.

Accelerating Democracy, 2012

This chapter considers the impact of new technologies on the administrative state. Information te... more This chapter considers the impact of new technologies on the administrative state. Information technology has the potential to improve administrative government by changing the nature of the information on which it relies. Theorists in the New Deal may have been correct that Congress could not effectively gather information to create the detailed policy directives that would achieve its legislative objectives. But regulatory agencies have not proved all that much better. Only by requiring agencies to rely on the more dispersed sources of information provided by markets and experiments is the situation likely to improve. By creating more objective measures of results, the use of such information technologies also constrains the influence of special interests.

Accelerating Democracy, 2012

SSRN Electronic Journal, 2020

Political polarization is perhaps the great political problem of our time. While it has many sour... more Political polarization is perhaps the great political problem of our time. While it has many sources, one of its most important causes, which has not been previously discussed, is the deformation of our governmental structure. That structure has been transformed from an arrangement where consensus was needed to enact important policy changes to one where the President or the Supreme Court can adopt such change unilaterally. This transformation has greatly contributed to political polarization. Congress’s delegation of authority to administrative agencies to make policy allows the President’s administration to make important regulations. Because the President represents the median of his party, not of the nation, his agents' decisions normally are more extreme than what would emerge from the congressional political process, particularly when, as is usually the case, the houses of Congress and the President are divided between the parties. Similarly, presidential claims of authority to engage in military interventions and to make substantial international agreements on their own – rather than with congressional authority as the Constitution requires – require no political consensus even on decisions of fundamental importance to the nation. Finally, the Supreme Court’s arrogation to itself of the power to create or eliminate rights also forestalls compromise, infuriating those who disagree with its ukases. These diverse constitutional departures have a common effect: They generate extreme outcomes, promote polarization, and block the dialogue that can lead to fruitful compromise. Understanding the institutional roots of polarization provides a roadmap to tempering our current discontents. Delegation should be curbed, forcing Congress to make the key decisions. The President's initiation of hostilities and executive agreements should be allowed only if they are swiftly ratified by Congress. The Supreme Court should refrain from creating or eliminating rights, leaving fundamental change to the constitutional amendment process. None of these reforms require us to begin the world anew, but instead to return to tried and tested structures. They would also transform our political culture. In a politics where compromise is routinely required, citizens would become less polarized, seeing each other less as targets or threats and more as partners in a common civic enterprise.

Originalism is often thought, by both its advocates and its critics, to be inconsistent with prec... more Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent. This Article challenges this common view of originalism and argues that nothing in the Constitution forbids judges from following precedent. First, the Constitution as a matter of judicial power incorporates a minimal notion of precedent. Second, the Constitution treats precedent as a matter of federal common law that it is revisable by congressional statute. Thus, the courts in the first instance and Congress ultimately have significant discretion over what precedent rules should be adopted. Having established that the original meaning of the Constitution does not forbid precedent, the next question is: what is the normatively best approach to precedent under originalism? As consequentialists, we argue that precedent doctrine should consist of rules that require precedent to be followed when doing so would produce net benefits and that require original meaning to be applied instead of precedent in other cases We then balance these benefits of following the original meaning with the benefits of following precedent. This Article, while not offering a full precedent doctrine, does recommend three specific precedent rules. First, precedent should be followed when it is necessary to avoid imposing enormous costs. Second, precedent should be followed when it is entrenched-when the precedent enjoys strong support that is comparable to that enjoyed by a constitutional amendment. Third, precedent should be followed when it corrects the results of a failure in the original super majoritarian process of making the Constitution, such as the exclusion of African Americans.

Harvard Journal of Law Public Policy, 2012

My subject is federalism and rights. I will argue that jurisdictional competition is, by and larg... more My subject is federalism and rights. I will argue that jurisdictional competition is, by and large, an effective way for society to discover a good set of rights for people to flourish. It is wholly appropriate to discuss federalism in relation to law and economics because federalism creates a market for governance. (1) Like other market processes, federalism offers a process of discovery--for individuals who can find states with the rights that allow them to flourish and for society that can allow it to evaluate best the effects of different rights by comparing the results in different jurisdictions. I draw on work on which Professor Nelson Lund and I collaborated. (2) I will begin with an abstract discussion of the advantages of competitive federalism and then illustrate these advantages in a concrete case, suggesting that competitive federalism provides a better alternative than the judicial doctrine of substantive due process for creating freedoms connected to sexual autonomy. This area is a useful one in which to compare federalism and the Supreme Court as mechanisms for creating rights, not simply because writing about rights of sexual freedom keeps people's attention but because it is in the area of sexual autonomy that the Court has most usurped the process of competitive federalism. I begin with two simple premises--one about the content of rights and another about their epistemology. First, good societies are concerned with protecting both liberty and other conditions for human flourishing. (3) In a good society, people should have freedom to act, but legal norms also should help sustain the conditions for the success of family life, friendship, and other social goods. In short, we should seek the set of rights that will maximize freedoms without permitting these rights to turn into license--the kind of activity that damages other social goods. (4) My second premise is that it is hard to draw a line between liberty and license. This is because it is difficult to assess the consequences of freedoms and restrictions in the social realm-maybe even more difficult than it is to assess than the effects of economic regulation because of their scope and subtlety. (5) Like many law professors, I have predictions about the likely effects of many rights that are debated. But everyone, even a law professor, must admit occasionally that he is fallible in his social and moral intuitions. Because of such all too human fallibility, a desirable feature of constitutional design is a structure that helps us calculate together the consequences of our social policies by providing us evidence beyond just our intuitions. The need for such a mechanism of individual and social discovery offers a powerful argument of a presumption against a monopolized process for creating rights whether the monopoly is held by Congress or the courts. I say presumption because I do not deny that some rights may best be protected at the federal level, and some should be protected against legislative abridgement. We have a constitutional process that can entrench specific rights at the federal level so long as they obtain supermajority support. (6) That consensus gives us greater confidence than we have in ordinary politics. In contrast with monopoly power at the federal level, states take part in a process that is relatively competitive, better approximating the private market. (7) To be sure, federal constitutional law plays a crucial role in creating the framework for competitive federalism by protecting the free movement of people and information among the States. (8) These protections leave individuals "free to exit [their states] if the balance between liberty and license becomes radically off-kilter." (9) The paradox of a system of constitutional federalism is that two levels of government with defined roles can better protect freedom than one by permitting states to choose a bundle of rights while the federal government guarantees the rights of movement and information. …

SSRN Electronic Journal, 2010

ABSTRACT This essay argues for government support for “friendly AI” - a kind of artificial intell... more ABSTRACT This essay argues for government support for “friendly AI” - a kind of artificial intelligence that will not endanger humans. AI is not, contrary to some theorists, necessarily a threat to humans, because AI will not necessarily be anthropomorphic and possess an all-too-human will to power. Government support for friendly AI makes it more like that friendly AI will emerge before other more dangerous kinds. Moreover, such support is also justified because the acceleration of AI will aid in the analysis of the risks and benefits created by the many other kinds of technology that are also accelerating - from nanotechnology to biotechnology. Only AI of all the many accelerating technologies of our present day helps perform this crucial function. Alternative approaches to AI - relinquishment or regulation of kinds of AI that might be deemed harmful - are infeasible. Given that AI is so central to modern military power, relinquishing or inhibiting AI would empower the worst nations on earth.