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Vermeule on Intermittent Institutions

By Lawrence Solum

Adrian Vermeule (Harvard University - Harvard Law School) has posted Intermittent Institutions on SSRN. Here is the abstract:

Standing institutions have continuous existence: examples include the United Nations, the British Parliament, the U.S. presidency, the standing committees of the U.S. Congress, and the Environmental Protection Agency. Intermittent institutions have discontinuous existence: Examples include the Roman dictatorship, the Estates-General of France, constitutional conventions, citizens? assemblies, the Electoral College, grand and petit juries, special prosecutors, various types of temporary courts and military tribunals, ad hoc congressional committees, and ad hoc panels like the 9/11 Commission and base-closing commissions. Within the class of intermittent institutions, one may distinguish periodic from episodic institutions. The former come into being on a schedule set down in advance, while the latter come into being at unpredictable intervals. The Electoral College is a periodic institution, the Roman dictatorship an episodic one.

This essay attempts to identify the benefits and costs of intermittent institutions, both as a class and in their periodic and episodic varieties. The largest goals are to state some general conditions under which intermittent institutions prove superior or inferior to standing institutions, and to illuminate the temporal dimension of institutional design.

And from the paper:

A less extreme example, from the United States, involves military tribunals and commissions. Such bodies come in a bewildering variety of forms, but appeared in one version or another in the Revolution, in 1847 (the Mexican-American War), during the Civil War and Reconstruction, in World War II and its immediate aftermath, and after the terrorist attack of September 11, 2001. In the interstices of these major episodes military tribunals appeared occasionally in a limited way, such as in the Philippines after the Spanish-American War, but their use was not widespread. Counting only the major cases, military tribunals are a highly episodic institution. After Reconstruction, ?[s]eventy years passed before military commissions came into widespread use again,?61 while after World War II, some fifty years elapsed before military tribunals were revived after 9/11.

Given these long periods of dormancy, it is odd to complain that the Bush administration?s 2001 version of military tribunals represented a departure from the ?carefully carpentered? procedures of past versions.62 The military, political and legal environments in which tribunals have been used have differed so greatly, over time, that it would be mindless -- pathologically rigid -- to use the same procedures over and over again. Interrupted traditions like the military tribunal do not embody the kind of incremental and continuous adjustments that might have a claim to embody latent collective wisdom, at least in a relatively static environment. Equally oddly, Bush?s 2001 order was quite similar to Roosevelt?s 1942 order,63 which had been upheld by a unanimous Supreme Court.64 As a matter of policy, the right objection to the 2001 order was not that it departed from the latent wisdom of the past, but that it mindlessly imitated the past despite changed circumstances.65

Furthermore, military tribunals have no fixed form, but have historically changed their procedures and rules to some degree in each new instantiation66 (the 2001 Bush order being a conspicuous exception). The ?tradition? of military tribunals is thus a peculiarly self-negating type of tradition, one that itself embodies abrupt revivals and discontinuous change. Cicero himself, the arch exponent of many-minds constitutionalism, supported a law granting unprecedented military powers to Pompey with the argument that ?our ancestors have always yielded to precedent in peace, but expediency in war, and have always arranged the conduct of new policies in accordance with new circumstances.?67 The twist is that Cicero ascribes this policy to the ?ancestors?; the argument is not simply for innovation, but instead for a second-order tradition whose practice is to throw tradition overboard when expediency dictates.68 I suggest that this captures the peculiar institution of military tribunals, and more generally that it captures a characteristic feature of intermittent institutions, especially episodic ones. Although such second-order traditions of punctuated innovation may have many benefits, they cannot be justified by reference to the putative epistemic virtues of continuous and incremental change.

Highly recommended!

Full post as published by Legal Theory Blog on January 27, 2010 (boomark / email).