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Vermeule on Liu, Karlan, & Schroeder and Strauss on Living Constitutionalism

By Lawrence Solum

At TNR, Adrian Vermeule reviews Keeping Faith with the Constitution by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder and The Living Constitution by David Strauss.  Here is a taste:

Constitutional Darwinism is a non-starter. As the lawyer-biologist Scott Dodson points out, the process by which constitutional precedents are selected for ongoing life, or instead for overruling and death, cannot plausibly be described as a form of natural selection. At most it is a form of artificial selection, meaning that some agent (here the judiciary) purposefully breeds new legal rules for whatever ends the agent may choose, good or bad. Some economic theorists of law have attempted to make out a case that the ordinary common law evolves to an efficient state, not because of intentional action by judges, but simply because parties are more likely to challenge inefficient precedents, which will then be overturned at a higher rate even if the judges behave randomly. But the models of this process are highly fragile and sensitive to initial conditions, so there is no consensus that such a process is anything more than a theoretical possibility. In any event, the process would not translate in any straightforward way to the constitutional common law, in which efficiency is of dubious value and in which repeat litigation by organized groups often turns the path of the law in socially undesirable directions.

Highly recommended & very short!

Full post as published by Legal Theory Blog on August 03, 2010 (boomark / email).