The distinctive role of legislatures in expressing and pursuing the goals of constitutional democracies is the subject of this volume, and it could not be more important, timely, or wide-ranging. The contributors are prominent scholars who have helped to frame some of the most original perspectives on this subject.

Constitutional democracies form and express their ideals through two mechanisms. First, they contain broadly representative political bodies, which we call legislatures. Second, they are constituted by a constitution (written or unwritten) whose laws support a set of democratic procedures and substantive rights that are more basic than the ordinary statutes routinely passed by legislatures.

This volume considers how legislatures can support both the procedural and substantive goals of a constitutional democracy. Contributors consider the principles that should govern legislation; the ways in which legislatures can serve as lawmakers, law followers, and codeterminers with courts of constitutional law; and how legislatures can engage in productive dialogue with citizens and courts at home and peer institutions in other countries.

The primary reason why this subject is so timely and important is that constitutional democracies have been multiplying throughout the world; yet, theorists and practitioners of constitutional democracy alike have yet to fully grasp just how legislatures and courts should divide up the labor of furthering democratic and constitutional values. The virtue of this volume is that it does not pretend to settle this extremely complex issue, but rather it intelligently explores almost every plausible permutation of an answer.

The literature on judicial independence has begun to be enriched by what might be described as its complement: a focus on judicial interdependence – that is, judicial connection or affiliation with identifiable groups in the larger population, members of whom will predictably appear before the courts. Judges are, as a normative matter, assumed or exhorted to be independent; yet they may also have, as a descriptive matter, connections to or affinities for different groups within their jurisdictions. Works arguing that these affinities shape the process or outcomes of adjudication date back to the legal realists; and they have recently served to challenge the norm of independence. But these works have tended to elide a set of more difficult questions: How precisely does judicial interdependence affect the operation of the judicial role? Is judicial connection with particular groups simply in tension with impartiality, or might a more interdependent judicial stance be in some ways consistent with impartiality, or help to refine our understanding of what impartiality for situated decisionmakers might mean? In order to confront these questions more directly, I propose to examine judicial interdependence in the context of one kind of affinity: ascriptive group membership, or membership in certain socially-salient groups or categories, which tends to be assigned through a series of complex social processes, on the basis of visible, largely immutable characteristics such as gender or race.

This chapter begins by considering several related literatures that highlight judicial interdependence or connection with particular groups.

Judges, as everybody knows, have a very special role in common law legal systems. In common law systems, a good deal of the law is judge-made. An important body of rules, doctrines, and practices developed over time, through case-law, and cannot be tied to any statutory text. Common law decisions created the bulk of the law of contracts and torts, and a good deal of the law of property. The common law mentality extends even to fields of law that do have a text (which, today, most of them do). To a common law lawyer, a statute hardly means anything until it goes through its baptism of fire – getting construed by courts. And some statutes are so vague that they hardly restrict the judges at all; the case-law under such statutes is basically common law. In many areas of law that are, in theory, statutory, significant bodies of doctrine take the form of “interpretations” but are in fact attached to the text (of a statute or regulation) by the thinnest of strings, or no string at all.

In common law countries, legal tradition and education focus heavily on the work of judges. Statutes, laws, regulations, ordinances have multiplied in the last century like rabbits; yet law schools still spend almost all of their time on case-law. The materials that students break their heads over are contained in thick books called “Cases and other materials,” but the cases far outnumber and outweigh the “other materials.”

Scholars of the commons typically have compared the merits of ownership of a pasture (or similar resource) by a single individual with its ownership by dozens of villagers. This stylized bifurcation neglects the reality that many pastures and other resources are owned and occupied exclusively by members of a multiperson household – an institution situated somewhere between the individual and the village. This chapter investigates this intermediate organization, including the rules that household members implicitly adopt to govern their affairs.

Households are ancient human institutions and have had Promethean influence. The rules that our ancestors developed to resolve problems arising around their hearths have provided templates for solutions to other small-scale problems of interpersonal coordination. It is within the household that most children first learn how to recognize and deal with the problems posed by common property, collective enterprise, and intrafamily dependence. A deeper understanding of the household therefore can shed light on more complex institutions.

The members of a multiperson household can be defined as the customary users of a space where two or more persons regularly share shelter and meals. Because many individuals spend over half their time at home, the household is a prime site for economic production, leisure activity, and intimate social interactions. In the United States, estimates of the value of within-household production have run from 24 percent to 60 percent of GDP – that is, to trillions of dollars per year.

I start with the words of someone famous, and then an account of the deeds of someone not quite so famous, as a way of framing an argument about the commons in cyberspace.

First the words.

In a letter written late in his life, Thomas Jefferson, the first commissioner of the patent office, commenting about the limited scope of patents, had this to say about the very idea of protecting something like an idea:

Several months ago I returned home from an out-of-town business trip. By the time the taxi made the trip from the airport to my house it was dark. The driver told me the fare was $16, and I fumbled in my wallet and pulled out what I thought was a $20 bill. I gave the bill to the driver and told him to keep the change. There came a moment of silence. Then the driver said, “You just gave me a $50 bill.”

In the early 1980s, when I was taking graduate level courses in economics and in law, my instructors taught me that events like this generally did not occur, and if they did, I ought not pay attention because such behavior was uncommon and unpredictable. Instead, I was taught that the best way to model human behavior was to assume that people always behaved like homo economicus – that they were both perfectly rational and perfectly selfish creatures. Both I and my instructors knew, of course, that real people did not always behave this way. But departures from rational selfishness were presumed to be rare, capricious, and not worth trying to consider.

Times change, and these days even scholars who are sympathetic to rational choice – I fit myself into that category – have begun to question the wisdom of always assuming that people behave in a rational and selfish manner. This trend is especially obvious in the legal literature.

The subject of this chapter is cognitive science, economics, and law, and some issues and problems confronting their interaction. The fundamental problems that face societies, economies, polities – and indeed the law – result from a world of ubiquitous uncertainty. Considered here is the nature of that uncertainty, its interaction with economics and legal systems, and its implications for our understanding the world and improving the human condition.

It will be useful to begin with some definitions. Economics is about how people make choices in a world of scarcity. A legal system is part of the institutional framework that structures human interaction. And uncertainty, using the Frank Knight definition, is a condition in which we cannot make a probability distribution of outcomes. Or, going to Lord Keynes's definition, it is a condition which does not allow us even to know what possible outcomes could occur.

The approach of economics to uncertainty is that it is an unusual condition. Because most economists agree that it is impossible to theorize in the face of uncertainty, they assert that what we really face is risk. According to Knight, risk does allow a probability distribution of outcomes and, therefore, we can theorize about it. If, as economists typically assume, risk rather than uncertainty is the usual state of affairs, then humans can act rationally in the pursuit of their objectives of improving the economic human condition and reducing scarcity.

INTRODUCTION

Contemporary economic theory is one of the more successful, empirically verified social science theories to explain human behavior. It does best, however, in the settings for which it was developed – the exchange of private goods and services in an open, competitive market. The theory is based on a theory of goods, a set of rules for social exchange, and a model of human behavior. When the goods involved are easily excludable and rivalrous, and individuals are interacting in a competitive market, theoretical predictions have strong empirical support. When the goods involved are not easy to exclude – such as public goods or common-pool resources (CPRs) – conventional theoretical predictions receive much less empirical support. In a static setting, the conventional predictions are that individuals will not produce public goods and that they will overharvest common-pool resources. The evidence for both predictions is mixed.

In “public goods” experiments, for example, instead of contributing nothing to the provision of a public good, as is predicted by neoclassical theory for individuals pursuing material payoffs, individuals tend to contribute, on average, between 40 to 60 percent of their assets in a one-shot game. In repeated games, the average level of contribution starts at around 50 percent but slowly decays toward the predicted zero level. With non-binding communication – cheap talk – participants are able to sustain cooperation in public goods experiments for long periods of time.

1. Custom, that unwritten law

2. By which the people keep even kings in awe.

So wrote Charles Davenant, in Circe, about three hundred years ago. There are not many kings left in the world, but custom, in various forms, does still link closely with law. Indeed, norms and laws are intimately connected and influence each other. The influences work in both directions.

Norms have an impact on the actual rules of operation in a society in at least two distinct ways. First, the conduct and behavior of people are influenced, to varying extents, by the established norms in a society. Norms can impose obligations and constraints which work like law, and this is perhaps the most direct manifestation of norms as “unwritten law” to which Charles Davenant referred. At the very least, norms can supplement legal rules (the “written law,” as it were) that are in force.

To consider an often discussed example, the enforcement of economic contracts can be made much easier if the power of legal force is supplemented by appropriately conformist behavior. Voluntary compliance can, in this sense, play an auxiliary but important part in the enforcement of contracts, for which policing may be the last resort. This recognition, incidentally, is not in conflict with Douglass North's critical argument, which I find entirely persuasive, that “neither self-enforcement by parties nor trust can be completely successful,” and that “a coercive third party is essential” for the enforcement of contracts.

The Constitution establishes the judiciary as a co-equal department of the federal government and protects its members from political interference by granting them life tenure and prohibiting Congress from reducing their salaries. Yet Congress is free to decide whether to create lower federal courts at all, to define their jurisdiction narrowly or widely, to establish rules of procedure, and to determine the size of the judiciary's budget. Moreover, federal courts are not only staffed by presidential nominees, they must also rely on the executive branch to enforce their judgments. From this perspective it is hard not to agree with Alexander Hamilton who noted in Federalist 78 that the judiciary, having neither purse nor sword, is the “least dangerous branch.” Hamilton, it must be said, offered this as assurance to those who feared the new constitution might establish independent and unaccountable judges as threats to liberty. But he surely worried that the complex ways in which federal judges were embedded in the political structure and their dependence on the political branches might undermine their capacity to withstand political pressures.

A contemporary observer might be forgiven for thinking, after two centuries of practice, that these concerns about the independence of the federal courts were overblown. Starting with its clever and cautious stance in Marbury v. Madison, the Supreme Court has proved more than capable of protecting its institutional powers relative to the other branches and, even more, relative to the state governments.

How do people make judgments about appropriate punishment? How do they translate their moral judgments into more tangible penalties? What is the effect of group discussion? And what does all this have to do with social norms?

In this essay I attempt to make some progress on these questions. I do by outlining some of the key results of a series of experimental studies conducted with Daniel Kahneman and David Schkade, and by elaborating, in my own terms, on the implications of those studies. Among other things, we find that the process of group discussion dramatically changes individual views, most fundamentally by making people move toward higher dollar awards. In other words, groups often go to extremes. The point has large implications for the role of norms in deliberation and the effect of deliberation in altering norms. We also find that people's judgments about cases, viewed one at a time, are very different from their judgments about cases seen together. Making one-shot decisions, people produce patterns that they themselves regard as arbitrary and senseless. The point has large implications for the aspiration to coherence within the legal system.

More particularly, our principal findings are as follows:

• In making moral judgments about personal injury cases, people's judgments are both predictable and widely shared. The judgments of one group of six people, or twelve people, nicely predict the judgments of other groups of six people, or twelve people.

• In making punitive damage awards for personal injury cases, people's judgments are highly unpredictable and far from shared. People do not have a clear sense of the meaning of different points along the dollar scale. Hence dollar judgments of one group of six people, or twelve people, do not well predict the dollar judgments of other groups of six people, or twelve people.

• […]

Norms guide human conduct and social interaction as much as formal legal rules. The new institutional economics, premised on institutions as the “rules of the game” that structure social and economic systems, defines institutions to include informal rules, like norms, religious precepts and codes of conduct, and formal rules, like statutes and the common law. In this sense, norms and law work in parallel to influence society.

Norms and law also have an impact on each other. Sometimes the law can be a strong influence on a change in norms, by forcing a change in conduct that gradually becomes accepted throughout society or by inducing a change in the perceptions about the propriety of certain conduct. Changes in social norms regarding the use of seat belts and smoking in public places are examples of this. Of course, the law can rarely change norms, even over decades, without the concomitant influence of education, propaganda, peer pressure, and other similar forms of social persuasion. The influence in the other direction, however, is much stronger because much of the law reflects society's values and norms.

A country's formal law grows out of its culture and society, as emphasized by scholars as different as F. A. Hayek and Lawrence Friedman. The prevailing views of a society act as a constraint on both judge-made and statutory law because social norms influence judges and legislators alike. To the extent that law reflects society, enforcement costs are lower as citizens are more willing to follow the law.