Centerfield

My take is that I think the piece is a little too simplistic, not least because it assumes that the post-Roe world will look a lot like the current one. Others have said before that once it actually matters what state legislators think about abortion, the public will pay closer attention to whom they elect to those offices. By the same token, I find it hard to believe that any state - including Massachusetts - will permit abortion on demand post-Roe, as the consensus seems overwhelming that at least some restrictions (parental notification, ban on PBA) should exist. Moreover, I also think that the inclusion of Washington D.C. in the "abortion on demand" column is wrongheaded; my suspicion is that (barring a Democratic resurgence in Congress), there will be a bill in the hopper restricting abortion in all federal jurisdictions, including the D.C.

Posted by: Simon at April 18, 2006 11:10 AM

Does USA Today say "when?" Or do they say "if?"

I think reasonable restrictions may come to pass, and that they'll vary from state to state as time passes. I expect we'll see a similar landscape of variation over time regardless of whether Roe gets overturned wholesale by SCOTUS, or simply adjusted based on various principles of exception while the basic right of a woman to private reproductive choice endures.

Such an outcome is of course bound to be unsatisfactory to purists who seek absolute legal clarity without conflict or confusion or varying standards. But as every exception passes, the set of people who remain deeply dissatisfied with the revised post-adjustment version of the law(s) will dwindle. It will take time, but my hope is that eventually we have a series of abortion regulations that most people can live with, and 2 small disgruntled purist minorities left to crank to their diminishing bands of zealots.

Posted by: bk at April 18, 2006 02:57 PM

Paragraph #2:

The South Dakota legislation and the abortion rights group's warning are early skirmishes in a battle over what states would do if the landmark Roe v. Wade decision were overturned — though both sides concede that may never happen.

Best thing about the article for data freaks is that click-sortable "States Compared" chart on the left. Chock full o' contextual goodness!

Posted by: Tully at April 18, 2006 03:40 PM

In order for reasonable regulations to come to pass, states have to be free to adopt reasonable regulations, but as long as the Supreme Court maintains that the Constitution protects "the basic right of a woman to private reproductive choice" (a characterization, in any event, that I would dispute), states are not able to adopt reasonable regulations. Therein lies the heart of the problem; any reasonable regulation is certain to "impose[] an undue burden on a woman's ability to make th[e] decision" to seek an abortion. Under that standard, any regulation is presumptively invalid and effectively unsustainable.

In Casey, Justice O'Connor opined that "state and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution;" the guidance they should recieve is that the Constitution says nothing about the matter, and the states are therefore free to resolve the issue for better or worse according to paramaters of the normal democratic process. That, as far as I'm concerned, is "legal clarity without conflict or confusion or varying standards," even if there are as many different abortion regulation regimes - from no regulation to outright prohibited - as there are states.

I fully agree with you, Brian, that eventually, the abortion situation will normalize, and that in the due course of events - post-Roe-Casey - as we move towards a more sensible and rational set of policies at the state level, "the set of people who remain deeply dissatisfied with the revised post-adjustment version of the law(s)" - on the left as much as on the right, needless to say - "will dwindle . . . [as there develops] abortion regulations that most people can live with." I pass no comment on whether this is desirable, but I agree it is inevitable; the only question is one of venue: will this grand societal Peace of Westphalia be hammed out by vote(s) by five unelected lawyers, or that of the duly elected representatives of the people in whose name it is enacted, in legislatures throughout the country?

Posted by: Simon at April 18, 2006 03:48 PM

Tully:

both sides concede that may never happen.

I can't help but suspect that those who oppose that result and say it will never happen are sitting comfortably in a major egyptian river, and those who support it and say that it may never be overruled are just too afraid of igniting a firestorm from the left to debate the issue on the merits. After thirty years of pro-Roe propaganda that overruling that the right to abortion hinges on that case (and the inexplicable, contemptible seeming concession of that territory by my side of the debate), the right seems afraid to defend its views. The reality is that - given a summer retirement and the confirmation of an appropriate nominee - Roe could be dead (if not quite buried) within twelve months.

Posted by: Simon at April 18, 2006 03:59 PM

Heck, all I can do there is quote Brian:

Such an outcome is of course bound to be unsatisfactory to purists who seek absolute legal clarity without conflict or confusion or varying standards.

No?

The reality is that - given a summer retirement and the confirmation of an appropriate nominee - Roe could be dead (if not quite buried) within twelve months.

Are you offering odds?

Posted by: Tully at April 18, 2006 04:40 PM

Tully,
I said "could be". ;)

In terms of clarification, I do think there needs to be legal clarity. Where Brian and I differ, I think, is that he thinks this is an issue to be resolved by the courts, whereas my entire point is that the courts need to get out of this business entirely.

Posted by: Simon at April 18, 2006 05:00 PM

I still thought the best of the article was that click-sort chart. Showing little things like the fact that just five states account for half of all abortions in the nation.

Posted by: Tully at April 18, 2006 05:10 PM

In order for reasonable regulations to come to pass, states have to be free to adopt reasonable regulations, but as long as the Supreme Court maintains that the Constitution protects "the basic right of a woman to private reproductive choice" (a characterization, in any event, that I would dispute), states are not able to adopt reasonable regulations. Therein lies the heart of the problem; any reasonable regulation is certain to "impose[] an undue burden on a woman's ability to make th[e] decision" to seek an abortion. Under that standard, any regulation is presumptively invalid and effectively unsustainable.

Hmm. We'll see. I for one won't be surprised if Roe is slowly shaped and whittled over time instead of struck down. All it takes is for 5 judges to decide that such rights need to be balanced against some other rights/compelling interests, therefore yada yada yada... .. This of course would be further "bebopping and scatting" all over the sanctity of the constitution. Buit if it helps achieve those reasonable guidelines that all but the purists can accept, I can live with it.

This is IMO a centrist quality...a willingness to tolerate messy, confusing, meandering processes that usually seem to basically pull things in the right direction even if not quickly or in a straight line. Not adore, not especially admire, tolerate.

Posted by: bk at April 19, 2006 09:52 AM

Just to stick a word in regarding our never-ending debate, Brian...

I've got no problem with the messiness you describe playing out in the political process... but judges are not very good at it, even leaving aside the fact that they are not given that power by the Constitution.

Posted by: PatHMV at April 19, 2006 10:11 AM

What Pat said. Messy and complicated compromises are fine when you're talking about politics, but not when you're talking about decisions by a court of law. The rule of law is a law of rules, not messy, squishy and malleable standards. Politics ain't beanbag, but law ain't jello.

Posted by: Simon at April 19, 2006 11:34 AM

Well you guys are free to keep hoping that this one of the 3 branches of government will someday be free of politics, just don't hold your breath.

As you know, I don't even disagree especially strongly with the notion that ideally constitutional law would manifest in a clear, concise, well-defined, all T's crossed and all I's dotted way. It's just that I don't think that's very realistic, which is one reason why I advocate the tolerance I do.

For me, it's at least in part a question of human nature. If all or most or even many Americans could be relied upon to regularly pay close intelligent attention to the vast array of issues and problems we face, and to buy strongly into vigilant adherence to process, I might feel differently. But I believe that people are much more Jacksonian that that, wakening mostly only when their interests seem directly affected. So I'm not especially troubled if the courts have to function as yet another official body that occasionally takes advantage of periodic opportunities to do the best they can on the basis of overarching principles about what's best for the nation. Even if such actions are construable as beyond the scope of their roles as they have been defined (which IMO is at least somewhat debatable anyway).

And let me stress that my perception is that the vast majority of I's and T's are dotted and crossed, and that much of the wiggle room that has been used is defensible. I really don't see the sort of grotesque divergence that y'all perceive. I see a crooked path that looks to me like it usually goes in the right direction, like a sailboat headed into the wind. You guys seem to suggest a path that often goes in the completely wrong direction...

IMO, most people simply don't deify process the way you guys do. You guys seem awfully sure that the nation would be far better served if we deified the process much more highly.

I really am not very sure where that faith comes from, but it feels to me like it comes from your guts at least as much as from rationally digested experience. Let me hasten to add that I doubt I'm free of that. I think it's worth it for all of us to entertain the notion that many of our political views are in part a function of personality...are you basically an optimist, are you risk averse, and so on....

Posted by: bk at April 19, 2006 12:40 PM

I was just tossing in an aside, Brian, not starting the debate again.... I think your feelings come from your gut, too, but saying that doesn't advance the debate in any way. I think we've reached the stage where we must agree to disagree or get trapped repeating ourselves ad nauseum.

Posted by: PatHMV at April 19, 2006 02:00 PM

agreed.

Posted by: bk at April 19, 2006 03:05 PM

"IMO, most people simply don't deify process the way you guys do. You guys seem awfully sure that the nation would be far better served if we deified the process much more highly."

Very well said. But I wouldn't limit it only to pro-life conservatives, but also to pro-choice liberals. And to me that proves you really can never take politics out of court rulings. To make the claim that judges should (or even can) interpret the constitution literally as written ignores human nature, and the constitution was written by men (revolutionaries) with a personal stake in the outcome.

Posted by: tim at April 19, 2006 04:56 PM

Brain,
Surely, you mean "exalt", or something of that nature, not "deify." Seems to me that one either does or does not elevate something to the level of a god; one cannot "sort of" deify something, or moderately raise it to the level of a god, or do so just a little bit, or even deify it "much more highly," as if on a scale of one to ten.

But in any event, yes, I am very sure that it would be better for the nation if courts were more concerned with making the legally correct ruling, rather than the one that makes it easy for them to sleep at night.

Posted by: Simon at April 19, 2006 05:16 PM

Hmm, maybe I do mean exalt. Similar ideas. The point I'm getting at is that in the case of constitutional law, you feel that product is a subordinate good to a rigid form of process. In your view, if the process is followed to YOUR letter, then it necessarily follows that the product MUST be good. If the system works precisely as you believe it was intended to work, then its product is as perfect as one might dare to expect. Any problems caused or unmitigated by the possibility of a "crap in, crap out" function are beyond the scope of the judicial branch.

That feels like "deifying" to me. It's just that your deification is domain-specific. In this part of your hierarchy, perfect processing is god. My impression is that you feel that within the domain of of constitutional law, all rulings and actions of the practitioners must be utterly subordinate to your rigid view of the process as it is supposed to unfold from the first words.

I very much think that our discussion of such law is a discussion about what the "greatest good" is within this domain. Your view is that the greatest good flows from deifying or exalting first words. My view is that even those first words were always no better than a means to an end, which means that it's OK in rare instances for justices to the more ultimate end, even if that ultimate greatest good of an end is not precisely definable. As Pat points out, we've had this discussion before.

In the view of you and Pat, you are entirely comfportable with judges declining to act to provide justice unless previously enacted statutes provide very direct guidance. Judges are supposed to act only or primarily as dispassionate technicians. I'm not averse to judges incorporating such an ideal into their thinking, but IMO mhistory shows that even twhen they belive they're doing it, they may well not be. So much of my point relates to the notion of no longer being willing to hold my breath while I wait for humans to become dispassionate technicians.

Previous to Pat saying he thought my views also came from my gut, I thought I'd already just previously conceded that substantial possibility. And I continue to concede it...but on the matter of human nature, I do feel that it is experience that has taught me to be more realistic about human nature, because my impulses in younger years always led me to expect much more from them than history had shown them able to deliver. So while the feeling may indeed have sunk onto my gut at this point, I feel that this shining bulb was FORCED into my sphere of vision despite my fiercest efforts to acknowledge it.

Posted by: bk at April 20, 2006 10:28 AM

WHY do I let myself keep getting dragged into this discussion? Brian, you said:

In your view, if the process is followed to YOUR letter, then it necessarily follows that the product MUST be good.

This is NOT what I keep saying. I say that OVER TIME, it is following the process which has kept our society so stable for so long, not that every single decision made pursuant to the process is a good one. Using prohibition as an example, the process was followed properly but practical experience showed the end result to be flawed, so the process was again followed to undo it. This allowed the fundamental decision makers in our society, the people to learn and understand what happened and to take part directly in the decision to make changes.

Will bad substantive policies come along from time to time? Sure. But having the courts exercise their own substantive policy judgment insulates the people from the consequences of their own policy judgments, making it more likely that they (we) will make even more bad judgments later.

You also say:

In the view of you and Pat, you are entirely comfportable with judges declining to act to provide justice unless previously enacted statutes provide very direct guidance.

Again, that's NOT what I say. There are many areas where judges are supposed to provide justice without explicit statutory guidance... those are your everyday garden variety common law cases: contract suits, torts, family custody matters, etc. What I oppose is judges interpreting the Constitution and existing statutes based primarily on their personal feelings rather than the language of the law itself, in accordance with the meaning the words had at the time the law was adopted.

It is one thing to acknowledge that humans cannot ultimately act as dispassionate technicians interpreting the law. It is another thing to declare that they shouldn't even bother trying. Read some of Justice Kennedy's opinions, for example, and you see few if any references to the actual language of the Constitution and contemporary documents and practices of the Founders. He begins and ends from a perspective of "evolving standards of decency," current legislative trends, and foreign law.

As for gut, I feel just as strongly as you do that my own gut feelings are based on my own deep understanding of human nature. I have seen the disruption brought about to our communities over, say abortion, and I am fundamentally convinced that those problems would not be as severe had the Court allowed us to work that problem out for ourselves rather than to yank it entirely out of the democratic process. 12 years as a lawyer have shown me, up close and personal, that regardless of whether they like the end result or not, people will accept decisions and judgments much more easily if they agree that the process has been fair and that they have been listened to. But if they think the process was not fair, that the judge didn't listen to them, they get very, very angry.

We have not, as a society, agreed that the Supreme Court is the proper body to make major social changes. The process is thus seen as unfair by a very large segment of the population, and the results of that process are not easily accepted because of it. This causes damage to our body politic.

Beyond that, the Supreme Court takes an oath to uphold the Constitution and Laws of the United States. That oath is not fulfilled when they begin imposing their own social judgments on the rest of us.

Posted by: PatHMV at April 20, 2006 11:03 AM

What I oppose is judges interpreting the Constitution and existing statutes based primarily on their personal feelings rather than the language of the law itself

Which is exacty what Judges like Scalia and Thomas have done time after time (along with their "friends" on the other side of the isle), except when it's your guys doing the activisum, it just some how seems objective. Funny how that works ain't it?

Posted by: Rick DeMent at April 20, 2006 12:04 PM

My trap worked. ;) The point I was getting at, Brian, was that word choice matters - indeed, that is the whole point of textualism: that, absent genuinely compelling reason, words should be assumed to be used to connote their acutal meaning.

In point of fact, you have it backwards. I do not contend that, as long as the right process is followed, the product must be good; what I do contend is that if the right process is not follwed, the product will be invalid, even if I happen to like that product. On a normative level, I think "products" like abortion being illegal or capital punishment being suspended forthwith are very appealing, but I deny that court rulings which established those "products" would be valid, even if I happen to like them. This is not to say, however, that I disagree with your suggestion that "[a]ny problems caused or unmitigated by the possibility of a 'crap in, crap out' function are beyond the scope of the judicial branch." To conclude otherwise would "assume[] that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended" (Scalia, colloquy at A.U., 1/13/05).

Posted by: Simon at April 20, 2006 12:25 PM

Using prohibition as an example, the process was followed properly but practical experience showed the end result to be flawed, so the process was again followed to undo it.

Right. I mean, nobody is saying that the Constitution as currently promulgated and amended will necessarily and automatically cover every imaginable contingency. Nobody is saying that the Framers were wrong to include an amendment process. General Grant supposedly averred that the best way to get rid of an unjust law is to enforce it vigorously - the people will not tolerate it, and the law will be repealed. So it was with prohibition; an unjust law, vigorously enforced, and ultimately gone within a decade, all without the need for action on the part of our caped - or robed - crusaders on Mount Olympus.

I think that people mistakenly think that formalists are opposed to change. Or that the reason that we oppose the use of foreign law is because we don't like the norms that proponents of such seek to import. But "[t]he question is not whether or not American law should resemble natural law, foreign law, or even the laws of the planet Krypton; the question is who gets to decide" (I think they’re turning Portuguese: The stealthy emasculation of the royal prerogative and the expansion of executive power in Britain, at n11).

Posted by: Simon at April 20, 2006 12:33 PM

Rick, kindly point to a case where Justice Scalia and Justice Thomas relied on their personal policy preferences, rather than the text of the Constitution, to decide a case. Your assertion that it is true does not make it so. I can, off the top of my head, think of several counter-examples. For example, the recent medical-marijuana case. Justice Scalia joined the more liberal judges in upholding the federal power, but Justice Thomas (presumably just as much a "conservative" and opposed to drug use as the rest of the bunch) joined the other more conservative members of the Court to advocate striking down the broad Congressional ban and allowing in-state, non-commercial use of medical marijuana.

By contrast, look at Justice Kennedy's vote and opinion in the Roper case on the "juvenile" death penalty, the execution of those who were 16 or 17 at the time they committed murder. In a case decided early in Justice Kennedy's tenure on the Court, he found such a penalty constitutional. Just 15 or 16 years later, in the Roper case, he found the penalty unconstitutional. Not even the make-up of the Court had changed in the interim. The ONLY thing which changed was that 5 states which had previously allowed for such a penalty had decided not to impose it. On that basis, because the "trend" was to get rid of that penalty, Justice Kennedy declared that it had suddenly became unconstitutional to impose such a penalty on 17 year old convicted of murder. That is not the rule of law, but the rule of the whim of judges. In my copy of the Constitution, it says that 3/4 of the states (38) must agree to amend the Constitution, not 5.

Posted by: PatHMV at April 20, 2006 02:08 PM

absent genuinely compelling reason, words should be assumed to be used to connote their acutal meaning.

Let the search begin for the truck too large to drive through that one, Simon!

what I do contend is that if the right process is not follwed, the product will be invalid, even if I happen to like that product.

Right! Your concern is that the process must be valid, because your view is that the process is the godhead. So you maintain that you'd prefer a lousy result achieved via your vision of the valid process over a more desirable result achieved va a process whose validity is debatable (or in your view, invalid).

So you are one the hearty few ( a very few, IMO!) who wouldn't be bitching about Roe if the constitution had explictly declared a right to privacy which includes but is not limited to x, y, and z, and set forth a general spirit of erring on the side of individuals making their own choices.

Or so you believe, anyway.

Posted by: bk at April 20, 2006 02:14 PM

The problem, Brian, is this. As I understand it, your basic argument is that courts should sometimes break the rules to do the right thing; that is, even if we both agreed that there was no basis in the Constitution for (to pick a couple of examples we will probably both think are such "good" decisions) Brown or Loving, the court was still right to make that decision to move society forward. This is, in essence, an appeal to natural justice, or natural law.

More specifically than that, even, this view that Judges should sometimes abandon formalism to "do what is right" rests on a presumption that there is a singular natural justice - a "brooding omnipresence in the sky" - to which the laws of society should be conformed. I think we would all agree on that much; indeed, I'm not sure that many laws have ever been made other than out of a conviction that they either are, or are as close to as practicalities allow, some sort of sense of natural justice.

The problem, though, is this. While mostly everyone agrees that society's laws should resemble natural law, not everyone agrees on what this "natural law" is. For example, what is "natural justice" where abortion is concerned? What does natural law demand on that? In my opinion, natural justice requires that abortion be prohibited, to preserve the life of the child, except to save the life of the mother. I suspect that you, on the other hand, think natural justice requires something very different: that abortion be permitted to preserve a woman's right to control her own destiny. Or we could pick something else, a subjet where perhaps you and I would both agree as to the dictates of natural justice; perhaps we would both agree that preventing homosexuals from marrying their partners and accruing the same legal benefits as married heterosexuals flies in the face of natural justice. You and I might agree on that, but millions of Americans - I would dare to say a majority of Americans in every state, as we are slowly discovering, election after election - would totally disagree with us; to them, it is gay marriage is at odds with natural law, not its prohibition.

So what should we do, faced with a shared belief that society's law should reflect natural justice, but when deep divisions exist over what natural justice requires?

It will not surprise you to know that I have an idea. It's novel and maybe even unprecedented, but if you bear with me, I think it makes sense. Because the debate is difficult, we should elect a group of citizens, as a microcosm of society, to something we'll call a "legislature", and we'll let them debate these various conceptions of natural justice until they come out with something all can live with - and we'll agree to be bound by the results they come up with. We'll call these results "positive law". And what these positive law makers in the "legislature" - lets call them "legislators" - will do all day is to find some sort of compromise where the laws that everyone in society have to obey, the "positive laws", as closely resemble natural justice as possible, even though they won't perfectly match everyone's idea of natural justice. To be sure, there will be arguments and it won't be easy, but I think that the natural result will be that a group that we could term "moderates" - or perhaps, because they sit at the center of various differing views on natural law, we could call them "centrists" - will emerge, that will help broker compromises to forge these "positive laws". How does that sound?

Of course, these "positive laws" will be generally applicable, which means that there may be situations where there is uncertainty how they apply to a given situation. So we're going to need a group of folks - let's call them "judges" - read the positive laws and say how those "positive laws" (which, remember, are mutually-agreed compromises between competing visions of natural justice) apply to certain cases. I know it's new and untested, but I have faith in such a system.

The only possible danger to this system is if these "judges" take it upon themselves to upset those delicate compromises, by declaring that it is their idea of natural justice which should govern the instant case, rather than the delicate compromise between competing visions of natural law that these "moderates" hammered out into positive law. Something like that would be terrible for society, but particularly disastrous for these "moderates", because suddenly they'd become redundant; law would no longer be a process of compromising in these "legisatures" to create "positive law", it would be become bloody armageddon between those groups of differing conceptions of natural justice, fighting each other tooth and nail to make sure that the nation's judges are ones who agreed with their conception of natural justice. Fortunately, I think such a disaster is quite far-fetched. All we have to do is create a sort of "contract of employment", one which spells out our agreement as a society to be bound by these "positive laws" that our "legislators" come up with; that contract would spell out that the law is made by these "legislators" and that the only role of judges is to say how the law applies to a given case, rather than to remake the law as they see fit. The only part that I haven't yet worked out is what we'd call this "contract" - do you have any suggestions?

Posted by: Simon at April 20, 2006 03:21 PM

Incidentally, I would still be bitching about Roe, even if the Constitution contained a general right to privacy, explicitly or impliedly, because - as Rehnquist's Roe dissent noted in passing, the right to abortion cannot grounded directly on a right to privacy. That is, as I put it in January, even if there were such a right:

I would say that it does not protect the right to an abortion. Abortion is not a right supported by a general right to privacy . . . it must rest on a [quite separate] right to bodily autonomy

To get to a right to abortion with the existing language, you have to abstract from the Fourth Amendment a Constitutionally-protected right to privacy, and then abstract from that to Constitutionally-protected a right of bodily autonomy, on which you can base a right to an abortion.

But all this, even, presumes that Roe would be any more valid had it declared a right that was directly grounded on a right to privacy, such as the right to eat cheese or enjoy the musical stylings of Katharine McPhee in the comfort of one's own home. The problem isn't that the Roe court declared abortion to be a constitutional right, it was that the Roe court arrogated to itself the power to insert any new right. There is a huge leap between the court declaring doctrine that gives practical effect to constitutional rights, even if that doctrine itself resembles the declaration of certain rights; the exclusionary rule, for example. I have no problem with that, and I would have no problem with the court now doing away with the exclusionary rule as long as it did so in favor of some other rule which gave effect to the Fourth Amendment. But to flat-out make up new constitutional rights? No way.

The rights of the mother vs. the unborn are a difficult, complex, hugely subjective and ultimately moral judgement. For that reason, it seems to me that the most appropriate situation would be for each state to make that determination as its people see fit. Of course, I know what decision I would rather that they make, but I deny that such a determination can be imposed, one way or another, by the Supreme Court.

Posted by: Simon at April 20, 2006 03:24 PM

As I understand it, your basic argument is that courts should sometimes break the rules to do the right thing

Not really. My argument is that I expect that they'll do it from time to time, that it's rationally defensible based on the wiggle room of language vagueness, and that I'm willing to tolerate it for a variety of reasons, the most important of which is my assessment of human nature and imperfection.

Ideally, people, including judges, should do things perfectly according to clear and well-defined processes. Such as the democratically determined ones we've done our best to define. But language and human nature being what they are, the wiggle room and political and moral variance and contentiousness has persisted. People persist in failing to do things perfectly according to clear and well-defined processes. My reaction to such failures is determined on a case by case basis. This is the way that the real world functions. In the real world, if its good enough for most people, then it's good enough.

The technicians, referees, and purists are IMO doomed to perennial disappointment. For everyone else, if a system works well enough most of the time, people tolerate it, and the griping varies from person to person as they go about their self-interested lives, payiong close attention to each of their oxen and whether each ox might be gored.

The problem for you is that not enough people think the current system as it actually functions is really and truly goring their most important oxen. Or they are unconvinced that the offered alternatives will reduce overall goring.

Oh, and of course people disagree about the nature of these alleged natural laws. That's why I never brought them up. You did. I'll not defend them. My view is that the "good enough" system is foprgiving enough to tolerate instances when judges act based on any such perception. Quite often,m they get it right enough. When they don't, we either fix it or flow around it.

Posted by: bk at April 20, 2006 04:24 PM