22 July 2010

The Political Theory of Second Opinions

A new paper entitled "Second Opinions" by Adrian Vermeule at Harvard Law School explores the idea that public law (i.e. constitutional and governmental law) is designed in many cases as a way to force public officials to obtain second opinions. Here is the abstract:

There is a burgeoning literature on second opinions in professional contexts, as when patients or clients seek advice from a second doctor or lawyer. My aim, by contrast, is to analyze second opinions as a central feature of public law. I will try to show that many institutional structures, rules and practices have been justified as mechanisms for requiring or permitting decision-makers to obtain second opinions; examples include judicial review of statutes or of agency action, bicameralism, the separation of powers, and the law of legislative procedure.

I attempt to identify the main costs and benefits of these second-opinion mechanisms, to identify conditions under which they prove more or less successful, and to consider how the lawmaking system might employ such mechanisms to greater effect. I claim, among other things, that Alexander Bickel’s justification of judicial review as a “sober second thought” is untenable, and that the Supreme Court should adopt a norm that two successive decisions, not merely one, are necessary to create binding law.

Drunken Decisions

A particularly amusing point, that is explored (for a deeper meaning) is the notion of deliberation while drunk v. deliberation while sober, with drunken judgment not receiving an entirely negative evaluation.

Laurence Sterne, the author of Tristram Shandy, suggested that a combination of drunken and sober deliberation was best:

The ancient Goths of Germany … had all of them a wise custom of debating
everything of importance to their state, twice; that is, once drunk, and once sober:
drunk – that their councils might not want vigour; and sober – that they might not
want discretion.

The case for drunken decision making focuses on the importance of passion, emotionally correct decision making, and honesty (even with oneself) in making decisions. The heat of passion that drives a call for action is an important part of the process.

A Framework For Future Study

There is a lot of analysis within the second opinion framework in the article, although it is short on conclusions (other than a case that two decisions rather than one might be a better standard for setting court precedents), and the insights that flow from the analysis are largely a rehash of conventional political theory.

The analysis offers few "a-ha" insights, in part, because analytically, there a strong competing considerations that govern how people who know that their opinions will be second guessed will behave. Will they be more careful, knowing that their mistakes may be discovered, or more reckless, knowing that they are not the sole decision-makers? These competing claims have to be resolved empirically.

The most promising element of this analysis, however, is that it is naturally suggestive of an approach to reviewing and, if necessary, gathering empirical evidence in a variety of otherwise seemingly unlike domains in hope of discerning general trends.

For example, there is lots of data out there that is available to compare the behavior of prosecutors in jurisdictions where their decisions to prosecute a crime are subject to being second guessed by grand juries, those where their decisions to prosecute a crime are subject to being second guessed by judges, and those where their decisions to prosecute aren't second guessed at all.

This evidence suggests that the federal grand jury requirement has almost no impact, that grand juries do quash a significant share of prosecution decisions in rural state courts, and that preliminary hearing review of prosecution decisions by judges are a modest but real protection for criminal defendants facing weak charges.

Similar data can compare the kind of decisions made on using the juvenile or adult criminal justice process in states where prosecutors may "direct file" against a juvenile in an adult criminal justice process for certain crimes, and those where a prosecutor must seek judicial approval to charge a juvenile as an adult. It is quite clear that juveniles are significantly less likely to face prosecution as adults when judicial permission is required to do so.

According to conventional wisdom, supported by some data, judicial review of the process of granting search warrants has very little impact, although in those cases, the requirements that prosecutors review law enforcement requests may have the effect of forestalling searches that law enforcement officers not subject to search and seizure limitations might have made - in part, as a result of the red tape barrier, and in part, because a lawyer must concur with someone trained as a law enforcement officer.

The broader conclusion from these examples may be that ex parte requests for second opinions from the person making them have little substantive impact, but that a requirement that second opinions be obtained from people who are exposed to information from an advocate for another result than the one who asks for the ruling may meaningfully influence the ultimate result.

This analysis, taken to a political theory level, would suggest that a requirement in a political process for a second opinion is likely to be most meaningful when public input is required or a devil's advocate is appointed.

For example, the National Environmental Policy Act, despite simply requiring political actors to determine what the impact of a public policy decision will be for the environment, rather than imposing any particular hard and fast rules on what those impacts may be, appears to have been quite influential in causing policy makers to consider environmental impacts in their decisions. A critical factor that helps explain why this is so is that the public can participate in the environmental impact assessment process, and that there are in fact advocates in civil society who vigorously exercise their right to comment.

Notice and comment processes in a variety of rule making contexts likewise show that allowing comment from the public in situations where there are organized civil society institutions and advocates who participate in the process does routinely influence the final form of government regulations.

In contrast, second opinions not informed by new information or advocacy can be quite meaningless. Decisions subject to a public hearing process almost never produce a different result when no one attends the hearing.

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