August 3, 2004  ·  Tim Wu

Years ago, when I was a law clerk, I was impressed by how much Judge Posner could accomplish with one simple question. He would ask, “What exactly is the purpose of this law (or proposed rule)?” It was astonishing how often lawyers would stare or gasp, unable to answer this most basic of questions.

I think the least you can ask of government, whatever branch, is that it always have an answer to Posner’s question. When acting on behalf of the public, it ought always have a clear reason for what it is doing, that it can articulate without shame, sloganeering, or reliance on non-existent evidence. Is that too much too ask?

Yet so often Government is failing this simplest of tests. Copyright, our favorite topic, is full of stuff that lacks what lawyers call a rational basis. If you really ask — what does it accomplish to extend copyright on existing works by 20 years? How does that promote the progress of Science? There just isn’t, and wasn’t an answer.

Or this weekend, as the Adminstration put the nation in a state of fear with heightened terror warnings. We should expect a reason, and good reason. Fear is very expensive. But we read instead that years-old evidence justified the action? We’re not in a position to know better, but why can’t the Administration explain why it is doing what it does? Why can’t it give reasons for its actions that don’t insult our intelligence?

Or consider the Supreme Court, which in Blakely, seemed to strike the sentencing guidelines and created chaos in the district courts. Again, to what end? Can the Court even articulate what it thinks it is accomplishing?

I don’t think Government by reason is too much to ask for. But it certainly isn’t what we’re getting.

  • Alexander Wehr

    Once again i say that our government has failed.

    The experiment is over.. our government does not represent us.

    Can we go back to being a part of britain again now? please?

  • Alex

    If Britain could stop being part of you that would be a start, we seem to be importing all of the bad laws over here.

  • Jeremy

    Exactly what was the government supposed to do? If they find this information, however dated, and don’t release it and then something happens, they’ll be strung up for repeating Sep 11. So they decided to release the information and now everyone is complaining because they are “putting the nation in a state of fear.”

    Damned if you do, damned if you don’t. Can you suggest a better way to go about it?

    And by the way, it looks like the information is more recent also:

    “Khan�s information has been merged with other pieces of intelligence, including information gleaned after Pakistan�s arrest last month of a senior al-Qaida operative named Ahmed Khalfan Ghailani.

    E-mail messages that included plans for new attacks in Britain and the United States were found on Ghailani�s computer, the Pakistani information minister, Sheikh Rashid Ahmed, said Monday.

    But it was Khan and the information found after his arrest that were primarily behind the decision to raise the terror alert for the financial-services buildings to �orange,� or high.”

    Via: http://www.msnbc.msn.com/id/5591204/

  • Anonymous

    Why can’t we make this “A Government of the People, by the People, and for the People”? Instead of a Government that rules the people. Sometimes I feel like we are back under a monarchy.

  • Jardinero1

    Oligarchy.

  • http://thebigmouth.blogspot.com a&w

    Prof. Wu is right that every rule worth advocating has a functional rationale. The failure of advocates to grasp this point is not a function of politics or government–at least, not solely. It’s also the result of the way our law schools teach the law. By continuing to emphasize the case method, legal academia has abdicated the charge of pragmatists like Holmes, who urged law schools to equip students with the analytical tools necessary to make good policy.

    I think Prof. Wu is wrong, however, that no functional justification exists for the Supreme Court’s decision in Blakely. True, the Supreme Court did not itself articulate such a rationale. But the practical arguments against the sentencing guidelines have been made very effectively by a number of lower courts, most recently Chief Judge Young of the D. Mass.

    Of course, even if the guidlines themselves are flawed, the result of the Court’s decision is still considerable disarray. But is a little chaos such a bad thing, practically speaking? By reserving final judgment on the federal sentencing guidelines, the Court has effectively opened the door for lower courts to experiment with different solutions to the constitutional conundrums raised by Blakely. This may well create some short term inconsistency, but that is the price we pay for pragmatic experimentation.

  • Mike Weston

    Perhaps more like plutocracy or corporatocracy. Or one of my favorite obscure words, kakistocracy.

  • bruce

    The default answer to Posner’s question is always “to protect the children.” That’s the sole justification of every law passed over the last 35 years. In fact, it’s hard to find a law without the letter “C” in the acronym-title. Even the “Induce Act” (before it was renamed) had a “C” standing for “children.” It’s an irrebuttable appeal to emotion these days. If they say it’s for the children, then to throw it out or not vote for it is to be against the children, and that’s the end of your political career.

  • Anonymous

    Bruce, maybe you struck a chord with me. But me being a father of 7, why does the government feel it must protect my children? Should I not be the one responible for this action? I think it might be over used in the sense that they want to get something they like or have been paid for to get passed.

  • Jardinero1

    How about oligarchy headed toward kleptocracy like Mexico or Russia today.

  • Stuart Levine

    As I understand it, the information was not three years old, but very recent. That is, it was recently discovered that, about three years ago, Al Qaeida began “casing” several locations.

    Now, this evidence, tied to the belief that Al Qaeida sometimes waits for years to prepare to strike, tied to the increased “noise” level that was recently reported, may have well justified the elevated alert levels. Like Kerry, based on what I know, I am not willing to make the accusation that this is a “wag the dog” situation.

    That having been said, it is clear that the press conference, etc., was inept, at best. After all, Tom Ridge, et al., should have made the case, as above, that while the acts of casing the buildings were somewhat distant in time, in conjunction with the other factors, the increase in alert status was justified. By not making this case, they undermined their credibility and the credibility of the threat “ladder.” After all, while I’m unwilling at this point to make the “wag the dog” accusation, others are not so restrained, and I am, at the least, skeptical enough that I could consider changing my conclusion if more information leaks out.

    The Department of Homeland Security, to be successful, has to be perceived as being non-partisan. The way that the information was handled only eroded this perception, even if that erosion was effected due to the Department’s ineptitude.

  • a&w

    Sadly, this terror alert actually has a very specific functional justification, even if no one in gov’t is willing to admit it. The target is clearly Judge Sweet, who has prohibited the NYPD from conducting random searches of protestors’ bags, backpacks, etc. outside the Republican National Convention. Now the police can point to a very specific and purportedly probable threat, which will give them ample justification to conduct such random searches to their hearts’ content.