Adrian Vermeule Research Articles

The Institutional Theory of Legal Interpretation

In his provocative and masterly book Judging Under Uncertainty Adrian Vermeule seeks to displace the dominance of what he calls first-best conceptualism in legal theory and instead argues that interpretive law needs to take an institutional turn. Vermeule's focus on the empirical problems of institutional interpretation is a welcome and long overdue contribution to legal theory. Judging Under Uncertainty is an ambitious book and a valuable contribution to legal theory. The book deals exclusively with American law and Vermeule's institutional approach to legal interpretation takes the existing status quo of the American system as a given. This, one might be tempted to complain, limits the scope and application of the institutional theory advanced by Vermeule. I shall raise some of these concerns towards the end of this review article when I consider some of the insights Canadian jurisprudence could contribute to the development on an institutional theory of legal interpretation (as well as the insights Canadian legal theorists can take from Vermeule's compelling and important arguments).

The Strict Constructionism of Adrian Vermeule: A Call for an Orwellian Judiciary

The Strict Constructionism of Adrian Vermeule: A Call for an Orwellian Judiciary

Justice Breyer's Democratic Pragmatism

There have been many efforts to reconcile judicial review with democratic self-government. Some such efforts attempt to justify judicial review if and to the extent that it promotes self-rule. Active Liberty, by Justice Stephen Breyer, is in this tradition; but it is also marked by a heavy pragmatic orientation, emphasizing as it does the need for close attention to purposes and to the importance of consequences to legal interpretation. Its distinctiveness lies in its effort to forge close connections among three seemingly disparate ideas: a democratic account of judicial review; a purposive understanding of legal texts; and a neo-pragmatic emphasis on consequences. Breyer’s argument is convincing insofar as it challenges “originalist” approach on pragmatic grounds. It is more vulnerable insofar it downplays the inevitable role of judicial discretion in the characterization of purposes and the evaluation of consequences. Those who emphasize consequences, and active liberty, might well end up embracing textualism, or even broad judicial deference to legislative majorities. Moreover, it is not simple to deduce, from the general idea of “active liberty,” concrete conclusions on the issues that concern Breyer, such as affirmative action, campaign finance reform, privacy rights, and commercial advertising. Many competing approaches to these issues, and to interpretation as a whole, can also march proudly under the pragmatic banner. * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago Law School. This essay grows out of Cass R. Sunstein, The Philosopher-Justice, The New Republic (Sept. 19, 2005); I have substantially revised and expanded the discussion here, and in some ways the basic orientation has shifted. I am grateful to Adrian Vermeule for extremely valuable comments on a previous draft.

Killing in Good Conscience: What's Wrong with Sunstein and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations?

In a recent article, Cass Sunstein and Adrian Vermeule argue that capital punishment is morally required if it will deter more killings than it inflicts. They claim that the state's duty is to minimize the incidence of murder, and that recent deterrence research shows that state executions, even if deemed murders themselves, can do so. If these findings are true, they argue, the state is morally obligated to undertake such "life-life tradeoffs." The logic of Sunstein and Vermeule's argument justifies not only state executions, but any state-perpetrated injustice that promises to reduce the incidence of similar injustices overall, as the authors acknowledge in a comment about torture. Recently such lesser evil arguments have indeed been invoked to justify state torture, detention without trial, and other human rights violations. In this essay, I identify problems that are common to all of these arguments, as illustrated by the well-developed example Sunstein and Vermeule have provided. My aim is to demonstrate that, however valid the lesser evil approach may be in some domains, it fails when invoked to defend state violations of the right to life and other fundamental human rights.

The President's Completion Power

A U T H O R S. Henry L. Shattuck Professor of Law and Professor of Law, Harvard Law School. We thank participants at The Yale LawJournal's Symposium for their stimulating questions. We also thank David Barron, Bradford Clark, Richard Fallon, Charles Fried, Elena Kagan, Elizabeth Magill, Henry Monaghan, Sai Prakash, Eric Posner, Nick Rosencranz, Matthew Stephenson, Peter Strauss, Cass Sunstein, and Adrian Vermeule for helpful comments, and Nick Degani, Tijana Dvornic, Jean-Denis Greze, Jeff Harris, and Christina Henk for excellent research assistance.

Black on "Brown"

The most important and illuminating early writing on Brown v. Bd. of Education is a nine-page essay by Charles Black. Black memorably shows that segregation was a crucial part of a racial caste system. At the same time, he cuts through legal abstractions that made it difficult to answer the question whether the Court’s decision was sufficiently “neutral.” At the same time, Black’s argument suffers from two serious problems: formalism and institution-blindness. Black writes as if his interpretation of the equal protection clause can be simply read off the clause, and he does not engage the complex institutional problems that were raised by the Court’s decision. Nonetheless, the legal culture needs more voices like Black’s. Of all the early writing on Brown v. Bd. of Education, the most striking is a ninepage essay by Charles Black. Black’s essay is striking because of its simplicity, its concreteness, and its realism—its clear statement of what the system of segregation did and meant, and of the relationship between that statement and Black’s reading of the Constitution. For three reasons, Black’s essay is worth careful consideration today. First, it gives a vivid sense of the social realities that Brown actually confronted—a sense that was entirely missing from the legal culture at the time, and one that often seems to have been lost in contemporary discussions of the Brown problem. Second, Black’s essay offers a distinctive understanding of what the equal protection clause should be taken, above all, to forbid: the maintenance of a caste system. That understanding of the clause seems to me correct, and it bears on a number of issues today. Third, Black provides a sophisticated and morally committed version of a certain approach to constitutional * Karl N. Llewellyn Distinguished Service Professor, University of Chicago Law School. 1 347 US 483 (1954). argument, one that retains considerable influence. I think that for all its virtues, his approach suffers from the serious vices of formalism and institutional blindness. In particular, Black’s approach suffers from its failure to see the issues that have arisen as a result of the institutional turn of post-1980s constitutional law. We can learn a great deal about Brown by reading Black sympathetically. We can learn something about constitutional interpretation by reading him skeptically. Let us begin by listening to him. I. The Sovereign Prerogative of Philosophers Black begins with a two-part argument that he describes as “awkwardly simple.” First, the equal protection clause is best read to forbid state law from significantly disadvantaging the Negro race as such. Second, segregation counts as a massive intentional disadvantaging of the Negro race as such. “No subtlety at all. Yet I cannot disabuse myself of the idea that that is really all there is to the segregation cases. If both these propositions can be supported by a preponderance of argument, the cases were rightly decided.” Black attempts to support the first proposition by reference to precedent. In several cases, the Court had seemed to endorse it. To be sure, Plessy v. Ferguson appeared to be “a faltering from this principle.” But even in Plessy, the Court did not repudiate the principle. On the contrary, the Court found it necessary to show that any disadvantaging from segregation was produced not by state law, but by the “choice” of those who construed it as a form of disadvantaging. Hence the fault of Plessy lay not in 2 See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale LJ 421 (1960). 3 See Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 101 Mich L Rev 885 (2002). The institutional turn has many strands and can be found in many places. See, e.g., Gerald Rosenberg, The Hollow Hope (1993) (emphasizing limitations of courts in producing social change); Mark Tushnet, Taking the Constitution Away from the Courts (1999) (raising doubts about judicial review); David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996) (emphasizing common law approach toward Constitution). For my own views, see Cass R. Sunstein, One Case At A Time (1999). 4 Id. at 421. 5 Id. 6 163 US 537 (1896).

The Aretaic Turn in Constitutional Theory

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators.Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, Interpretation and Institutions. Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn.Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision.Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue.

Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated

The nondelegation doctrine has roots that extend as far back as three centuries, or so most of us suppose. In The Second Treatise of Government, John Locke listed four constraints on power, last that power, being derived from People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, Legislative can have no to transfer their Authority of making Laws, and place it in other hands.Most contemporary readers have assumed two things about Locke's statement: First, that was to make rules for society. Second, that this delegated to make laws could not be transferred to third parties because people had never authorized their agents to further delegate. These two principles underlay conventional nondelegation doctrine, which maintains that if a statutory delegation of discretion to third parties sweeps too broadly, it will constitute an impermissible delegation of power.In their recent article, Interring Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider meaning of Locke's epigram and reassess foundations of nondelegation doctrine. In their view, legislative power generally references right to vote on bills in a legislature along with other de jure powers of legislators. Moreover, Locke's maxim means no more than that legislature cannot make third parties by giving them to vote in legislature. So when Article I of Constitution speaks of legislative Powers, it refers to those powers individually held by federal legislators, including most prominently right to vote on bills. Furthermore, under their nondelegation doctrine, these are powers that cannot be delegated to third parties. Under their view, neither Locke's epigram nor federal Constitution go further and prohibit broad delegations of discretion to third parties because such delegations do not create legislators and hence cannot delegate power. Accordingly, should Congress delegate to some third party its entire to regulate Commerce, Congress has not delegated at all in either a Lockean or a constitutional sense.Professors Posner and Vermeule deserve praise for reexamining fundamental assumptions about nature and meaning of and of nondelegation doctrine. When scholars don't periodically reconsider conventional wisdom, scholarship stagnates and shibboleths are unreflectively accepted as constitutional gospel.Having said this, we doubt that they truly have laid to rest either traditional understanding of or conventional nondelegation doctrine. Our disagreements are both normative and descriptive. We cannot discern (and they do not advance) a plausible rationale for simultaneously permitting Congress to delegate large amounts of lawmaking or rulemaking discretion to third parties while strictly forbidding delegations of right to vote in Congress. Moreover, as an original matter, we believe that Locke and Constitution used phrase the power to refer to to make rules for society and not ability to exercise de jure powers of legislators. Hence, if one concludes that Congress cannot delegate powers (either because such grants are not authorized or, alternatively, are implicitly forbidden), one must be worried that at some point, delegation of large amounts of discretion might constitute a delegation of power.Furthermore, whatever meaning one should ascribe to phrase legislative Powers found in Article I Vesting Clause, we think that Posner and Vermeule too quickly reject conventional reading of Locke's nondelegation principle. Their revisionist reading simply cannot make sense of Locke's repeated claims that only those whom people have appointed as legislators can make rules for people. Locke denied that entailed to make third parties into legislators by delegating to them right to make laws. He was not merely claiming that those with could not cede votes in legislature.Finally, we conclude that if Posner and Vermeule applied relentless criticism that they visit upon conventional nondelegation doctrine to naive prohibition on delegation of voting rights, naive prohibition would seem equally dead. The heavy burden that they insist applies to conventional nondelegation doctrine makes all implicit constraints extremely dubious. Perhaps we should prepare for two interments rather than one.Although we have sympathy for conventional nondelegation doctrine, space considerations prevent us from mounting an adequate defense of it here. Hence, all we claim is that if one concludes that delegation of is impermissible (for whatever reason), one must have in mind a prohibition akin to conventional nondelegation doctrine. If, as Posner and Vermeule claim and as many others believe, Constitution prohibits delegation of power, nondelegation doctrine is alive and kicking.

Symmetric Entrenchment: A Constitutional and Normative Theory

In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue. First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment. In particular, the Framers incorporated into the Constitution the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison - comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments. On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments - entrenchments that are enacted under the same supermajority rule that is needed to repeal them - are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric, because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures.

Symmetric Entrenchment: A Constitutional and Normative Theory

In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue. First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment. In particular, the Framers incorporated into the Constitution the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments. On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments entrenchments that are enacted under the same supermajority rule that is needed to repeal them are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric, because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures.

Beyond the Precautionary Principle

The precautionary principle has been highly influential in legal systems all over the world. In its strongest and most distinctive forms, the principle imposes a burden of proof on those who create potential risks, and it requires regulation of activities even if it cannot be shown that those activities are likely to produce significant harms. Taken in this strong form, the precautionary principle should be rejected, not because it leads in bad directions, but because it leads in no directions at all. The principle is literally paralyzing— forbidding inaction, stringent regulation, and everything in between. The reason is that in the relevant cases, every step, including inaction, creates a risk to health, the environment, or both. This point raises a further puzzle. Why is the precautionary principle widely seen to offer real guidance? The answer lies in identifiable cognitive mechanisms emphasized by behavioral economists. In many cases, loss aversion plays a large role, accompanied by a false belief that nature is benign. Sometimes the availability heuristic is at work. Probability neglect plays a role as well. Most often, those who use the precautionary principle fall victim to what might be called “system neglect,” which involves a failure to attend to the systemic effects of regulation. Examples are given from numerous areas, involving arsenic regulation, global warming and the Kyoto Protocol, nuclear power, pharmaceutical regulation, cloning, pesticide regulation, and genetic modification of food. The salutary moral and political goals of the precautionary principle should be promoted through other, more effective methods. * Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago. I am grateful to valuable comments from Peter Dorman, Jack Knetsch, Saul Levmore, Eric Posner, Indra Spiecker, and Adrian Vermeule, and from participants in the Midwest Faculty Seminar. I am also grateful to Martha Nussbaum for helpful discussions.

What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage

What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage

Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated

Most contemporary readers have assumed two things about Locke's statement: First, that the was the to make rules for society. Second, that this delegated to make laws could not be transferred to third parties because the people had never authorized their agents to further delegate. These two principles underlay the conventional nondelegation doctrine, which maintains that if a statutory delegation of discretion to third parties sweeps too broadly, it will constitute an impermissible delegation of power. In their recent article, Interring the Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider the meaning of Locke's epigram and reassess the foundations of the nondelegation doctrine.2 In their view, the legislative power generally references the right to vote on bills in a legislature along with the other de jure powers of legislators. Moreover, Locke's maxim means no more than that the legislature cannot make third parties legislators by giving them the to vote in the legislature. So when Article I of the Constitution speaks of legislative Powers,3 it refers to those powers

Probability Neglect: Emotions, Worst Cases, and Law

When strong emotions are triggered by a risk, people show a remarkable tendency to neglect a small probability that the risk will actually come to fruition. Experimental evidence, involving electric shocks and arsenic, supports this claim, as does real-world evidence, involving responses to abandoned hazardous waste dumps, the pesticide Alar, and anthrax. The resulting “probability neglect” has many implications for law and policy. It suggests the need for institutional constraints on policies based on ungrounded fears; it also shows how government might effectively draw attention to risks that warrant special concern. Probability neglect helps to explain the enactment of certain legislation, in which government, no less than ordinary people, suffers from that form of neglect. When people are neglecting the fact that the probability of harm is small, government should generally attempt to inform people, rather than cater to their excessive fear. But when information will not help, government should respond, at least if analysis suggest that the benefits outweigh the costs. The reason is that fear, even if it is excessive, is itself a significant problem, and can create additional significant problems. “If someone is predisposed to be worried, degrees of unlikeliness seem to provide no comfort, unless one can prove that harm is absolutely impossible, which itself is not possible.”1 “[A]ffect-rich outcomes yield pronounced overweighting of small probabilities . . . .”2 “On Sept. 11, Americans entered a new and frightening geography, where the continents of safety and danger seemed forever shifted. Is it safe to fly? Will terrorists wage germ warfare? Where is the line between reasonable precaution and panic? Jittery, uncertain and assuming the worst, many people have answered these questions by forswearing air travel, purchasing gas masks and radiation detectors, placing frantic calls to pediatricians demanding vaccinations against exotic diseases or rushing out to fill prescriptions for Cipro, an antibiotic most experts consider an unnecessary defense against anthrax.”3 *Karl N. Llewellyn Distinguished Service Professor, University of Chicago, Law School and Department of Political Science. I am grateful to Christine Jolls, Eric Posner, Richard Posner, and Adrian Vermeule for helpful comments on a previous draft, and to Martha Nussbaum for valuable discussion. 1See John Weingart, Waste Is A Terrible Thing To Mind 362 (2001). 2Yuval Rottenstreich and Christopher Hsee, Money, Kisses, and Electric Shocks: On the Affective Psychology of Risk, 12 Psych Rev. 185, 188 (2001). 3Erica Goode, Rational and Irrational Fears Combine in Terrorism's Wake, The New York Times, Oct. 2, 2001.

Inequality and Indignation

Philosophy & Public AffairsVolume 30, Issue 4 p. 337-362 Inequality and Indignation EDNA ULLMANN-MARGALIT, EDNA ULLMANN-MARGALIT EDNA ULLMANN-MARGALIT is professor of philosophy at the Hebrew University of Jerusalem and a member of its Center for Rationality and Interactive Decision Theory. She recently edited Reasoning Practically (Oxford University Press, 2000). She and Cass R. Sunstein have previously co-authored “Second-Order Decisions,”Ethics, (1999) and “Solidarity Goods,”The Journal of Political Philosophy (2001). This is her first contribution to Philosophy & Public Affairs.Search for more papers by this authorCASS R. SUNSTEIN, CASS R. SUNSTEIN CASS R. SUNSTEIN is Karl N. Llewellyn Distinguished Service Professor in the law school and department of political science at the University of Chicago. His recent books include Designing Democracy: What Constitutions Do (2002) and Risk and Reason: Safety, Law, and the Enuironment (2002). He is a previous contributor to Philosophy & Public Affairs.Search for more papers by this author EDNA ULLMANN-MARGALIT, EDNA ULLMANN-MARGALIT EDNA ULLMANN-MARGALIT is professor of philosophy at the Hebrew University of Jerusalem and a member of its Center for Rationality and Interactive Decision Theory. She recently edited Reasoning Practically (Oxford University Press, 2000). She and Cass R. Sunstein have previously co-authored “Second-Order Decisions,”Ethics, (1999) and “Solidarity Goods,”The Journal of Political Philosophy (2001). This is her first contribution to Philosophy & Public Affairs.Search for more papers by this authorCASS R. SUNSTEIN, CASS R. SUNSTEIN CASS R. SUNSTEIN is Karl N. Llewellyn Distinguished Service Professor in the law school and department of political science at the University of Chicago. His recent books include Designing Democracy: What Constitutions Do (2002) and Risk and Reason: Safety, Law, and the Enuironment (2002). He is a previous contributor to Philosophy & Public Affairs.Search for more papers by this author First published: 13 January 2005 https://doi.org/10.1111/j.1088-4963.2001.00337.xCitations: 6 We are grateful to Avishai Margalit, Eric Posner, Richard Posner, Adrian Vermeule, and two anonymous reviewers for Philosophy & Public Affairs for very valuable comments on previous drafts. The first author also wishes to thank Russell Hardin, Stephen Holmes, Sanford Levinson, Mario Rizzo, and the participants in The Program in Ethics in Society at Stanford University, the Austrian Economics Colloquium at New York University, the Law School Faculty Colloquium at the University of Austin, Texas, and the Philosophy Department's Brown-Bag Colloquium at Columbia University. Their questions and comments helped to shape the present article. Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Citing Literature Volume30, Issue4October 2001Pages 337-362 RelatedInformation

RULES AND JUDICIAL REVIEW

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written;See generally Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359 (1998). they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible;See generally Mark Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41 (1995); John Copeland Nagle, Severability, 72 N.C. L. REV. 203 (1993); Robert Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L. REV. 76, 82–106 (1937). and they interpret statutes in ways that avoid constitutional difficulty.See generally Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997). These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. Several commentators have equated the practices mentioned in the text to judicial revision of statutes. See Dorf, supra note 1, at 292–93 (severance results in a “judicially rewritten law”); Nagle, supra note 2, at 220 (the product of severance is “akin to a new statute”); Schauer, supra note 3, at 80–81 (narrowing construction is a form of “redrafting”).

Multidefendant Settlements: The Impact of Joint and Several Liability

* Professors of Law, New York University. We acknowledge the generous financial support of the Filomen D'Agostino and Max E. Greenberg Research Fund at the New York University School of Law and the support of the C. V. Starr Center for Applied Economics at New York University. Prior versions of this article were presented at the Conference on the Law and Economics of Environmental Policy, organized by the European Association of Law and Economics and the Geneva Association, Paris, April 1991; at the Comparative Law and Economics Forum, Berkeley, October 1992; and at workshops at the New York University School of Law, University of North Carolina School of Law, and Stanford University Law School. Edward Sherry's extensive comments were very helpful; we also appreciate the valuable suggestions of Marcel Kahan and Kathryn Spier. We are grateful for the research assistance of Kent Chen, Marcel Hawiger, and Jeffrey Spear. ' The classic single-defendant works are John P. Gould, The Economics of Legal Conflicts, 2 J. Legal Stud. 279 (1973); William M. Landes, An Economic Analysis of the Courts, 14 J. Law & Econ. 61 (1971); Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Stud. 399 (1973). The problem of multidefendant settlements is analyzed in Frank H. Easterbrook, William M. Landes, & Richard A. Posner, Contribution among Antitrust Defendants: A Legal and Economic Analysis, 23 J. Law & Econ. 331 (1980); and A. Mitchell Polinsky & Steven Shavell, Contribution and Claim Reduction among Antitrust Defendants: An Economic Analysis, 33 Stan. L. Rev. 447 (1981). These articles deal with a case in which the plaintiff's probabilities of success against each of the defendants are perfectly correlated and thus cover only a narrow slice of the problem that we examine. The approach of the Easterbrook, Landes, & Posner article is followed, without major modification, in Jong Goo Yi, Litigations with Multiple Defendants: How to Settle under Different Apportionment Rules 73-82 (unpublished Ph.D. dissertation, Stanford Univ., February 1991). In a recent paper, Jeffrey Lange studies, in a multiple-defendant context, possible contractual arrangements between a plaintiff and one or more defendants. Jeffrey Lange, Litigation Risk Exchange: An Economic Analysis of Sliding-Scale Settlements (unpublished manuscript, Univ. Pennsylvania Law School 1993). He addresses only the case of perfectly