The Concepts of Law
Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual relationships in American constitutional law. We show that this field includes both poor and effective concepts and conceptual links. We also explain how the examples of poor concepts could be improved.
I. A Primer on Conceptualization and Measurement
A. Concepts and Conceptualization
Concepts provide the mental architecture by which we understand the world and are ubiquitous in social science as well as law. Conceptualization involves the process of formulating a mental construct at a particular level of abstraction.10
See Goertz, Social Science Concepts at 28–30 (cited in note 5); Gerring, Social Science Methodology at 112–13 (cited in note 5).
The debate goes back to Aristotle. See Gerring, Social Science Methodology at 114–15 (cited in note 5). See also Eric Margolis and Stephen Laurence, Concepts (Stanford Encyclopedia of Philosophy, May 17, 2011), online at http://plato.stanford.edu/archives/
win2012/entries/concepts (visited Dec 28, 2016) (Perma archive unavailable).
See Margolis and Laurence, Concepts (cited in note 11).
Goertz, Social Science Concepts at 5 (cited in note 5).
“Concept” itself is a tricky concept. For our purposes, concepts can be distinguished from other phenomena of interest to law such as words or rules. Law is composed of words or labels, but these are different from the concepts that are the building blocks of law. To see why, consider that a single label can refer to multiple concepts: a right means one thing when giving directions, but quite another when discussing the legal system. Even within the law, the concept of a right is different when thinking about an individual’s freedom from torture than when talking about Mother Nature’s right to remediation.14
See Ecuador Const Art 71, translation archived at http://perma.cc/DKJ5-E3K8(“Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”).
Concepts are also distinct from rules. Rules provide decision procedures to categorize behavior as, for example, legal or illegal. A legal rule is composed of multiple concepts put together in a particular kind of relationship: if someone engages in murder, she shall be subject to a penalty of imprisonment. Each of these concepts might have subconcepts: murder, for example, is killing with malice aforethought or intent. The rule provides the criteria for decision, but relies on abstract ideas—concepts—with more or less intuitive appeal. This simple example demonstrates that law is built of concepts and subconcepts, structured together in particular ways.
Some concepts are developed through necessary, or necessary and sufficient, attributes. It is necessary that a mammal be an animal; it is necessary and sufficient that it be an animal that secretes milk to feed its young. Another way of approaching attributes is to list all the desirable ones, and perhaps to treat them additively, so that more of them will get one closer to the ideal of the particular concept. This is sometimes called a maximal strategy of conceptualization and is exemplified at the extreme by Max Weber’s concept of an ideal type, which may never be met in practice.15
See Gerring, Social Science Methodology at 136–37 (cited in note 5), citing Max Weber, The Methodology of the Social Sciences 90 (Free Press 1949) (Edward A. Shils and Henry A. Finch, eds and trans).
Goertz, Social Science Concepts at 36 (cited in note 5).
Margolis and Laurence, Concepts (cited in note 11).
Many legal tests are formulated as having necessary and sufficient attributes. If one has a duty to behave in a particular way, has breached this duty, and has caused damage to another, then one has, by definition, committed a tort. But some legal concepts are formulated as multipart tests in which factors are added and weighed, with an eye toward seeing if the ideal is met. In deciding if an attorney in a prevailing ERISA claim is to be awarded fees, for example, courts apply a five-factor test:
(1) the degree of culpability or bad faith attributable to the losing party; (2) the depth of the losing party’s pocket, i.e., his or her capacity to pay an award; (3) the extent (if at all) to which such an award would deter other persons acting under similar circumstances; (4) the benefit (if any) that the successful suit confers on plan participants or beneficiaries generally; and (5) the relative merit of the parties’ positions.18
Cottrill v Sparrow, Johnson & Ursillo, Inc, 100 F3d 220, 225 (1st Cir 1996).
The implicit concept here is an ideal type of what might be called appropriate fee-shifting. None of the five elements is absolutely necessary, but if all five are plainly met, the ideal type will be achieved. The closer one gets to the ideal type, the more likely one is to get an award. The internal participant within the legal system, in this case a judge, will engage in the process of running through the attributes to see if they are met.
Legal concepts come in different levels of abstraction, often nested within one another. Private law is more encompassing than tort, which in turn encompasses negligent infliction of emotional distress. Unlike in social science, however, there is not much explicit legal work on concept formation, and few of the rich definitional debates that mark social scientific literatures on, say, democracy or even the rule of law. Our argument is that paying attention to legal concepts can improve the structure of the law.
B. What Makes a Good Concept?
There are several different social scientific conceptualizations about what it is that makes a good concept. A common approach is a listing of attributes, such as parsimony, explanatory power, and distinction from other concepts. These lists vary from scholar to scholar, but we rely on a recent contribution from the prominent social scientist Professor John Gerring, who argues that a good social scientific concept can be evaluated on several dimensions.19
See Gerring, Social Science Methodology at 117–19 (cited in note 5). See also John Gerring, What Makes a Concept Good? A Criterial Framework for Understanding Concept Formation in the Social Sciences, 31 Polity 357, 367 (1999) (offering a slightly different set of criteria).
See Gerring, Social Science Methodology at 117 (cited in note 5) (listing Gerring’s criteria of conceptualization).
Resonance is a quality that is essentially linguistic in character, and can easily be applied to law. For example, we can ask whether a legal test is resonant with the relevant audience. Does the framework of examining tiers of scrutiny “make sense” to observers? Is proportionality an intuitive concept in terms of advancing ideas about justice? Is it faithful to established definitions?21
See id at 117–19.
Many legal concepts are clearly resonant. However, it is an interesting feature of some legal concepts that they are in fact distinct from the ordinary meaning attached to the same terms. Only in law does “intent” include reckless disregard as well as intending the outcome; “statutory rape” adds the adjective precisely because the conduct it condemns is consensual. There is thus some variation across legal concepts in terms of resonance.
Domain simply refers to the realm in which a concept applies, and is fairly clear when applied to law.22
See id at 119–21.
Consistency requires that a concept carry the same meaning in different empirical contexts.23
See id at 121–24.
Fecundity is defined by Gerring as referring to “coherence, depth, fruitfulness, illumination, informative-ness, insight, natural kinds, power, productivity, richness, or thickness.”24
Gerring, Social Science Methodology at 124 (cited in note 5).
See id at 124–26.
See Barbara Geddes, Paradigms and Sand Castles: Theory Building and Research Design in Comparative Politics 50–53 (Michigan 2003).
See José Antonio Cheibub, Presidentialism, Parliamentarism, and Democracy 26–48 (Cambridge 2007).
Differentiation refers to the distinction between a concept and a neighboring concept.28
See Gerring, Social Science Methodology at 127–30 (cited in note 5).
See id at 127.
See Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination 57–59 (Yale 1979) (discussing whether sexual harassment fits neatly into the sex discrimination category).
Causal utility refers to the usefulness of a concept.31
See Gerring, Social Science Methodology at 130–31 (cited in note 5).
See Goertz, Social Science Concepts at 4 (cited in note 5) (noting that the key features are relevance “for hypotheses, explanations, and causal mechanisms”).
The requirement that a concept be measurable is a frequent desideratum in social scientific accounts of concepts (in which it is sometimes called operationalizability). The idea here is not that there must be available data or indicators that meet the standard tests of social science. Instead, the point of measurability is that in principle there ought to be data that could be deployed to test theories that use the concept.33
See Gerring, Social Science Methodology at 156–57 (cited in note 5).
Consider an example of an internal legal doctrine, drawn again from the five-part test for attorney’s fees in the ERISA context.34
See Cottrill, 100 F3d at 225.
C. Relationships among Concepts
Many of the central questions in social science involve relationships among different concepts. Does democracy increase economic growth? Does race correlate with voting behavior? Do people behave rationally in their investment decisions? Are military alliances stable across time? Each of these questions features at least two different concepts, which might in theory take on different meanings and surely could be measured in many different ways. Each also features a relationship among concepts, whether causal or correlative.
Examining these relationships among concepts also requires operationalizing them. This means we must come up with tractable indicators or measures that can then be deployed into a research design. Indeed, some argue that this is the central criterion of a good social scientific concept. If a concept is not capable of being operationalized, then it is lacking a central characteristic, and even the presence of many other desirable features may not be able to save it.35
See Goertz, Social Science Concepts at 6 (cited in note 5).
Law, too, is centrally concerned with relationships among concepts. The variety of conceptual relationships in law is very large. The multipart tests mentioned above aggregate a variety of concepts into a single framework, which is fundamentally an additive approach to linking concepts. In contrast, the famous framework of Professor Wesley Hohfeld distinguished between conceptual correlates and conceptual opposites.36
See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L J 710, 710 (1917).
See id at 710, 716–17.
Rather than try to exhaustively categorize all possible relationships, we are most concerned here with a particular kind of connection among legal concepts: that of a causal character. Causal relationships are very common in legal concepts. At the most basic level, law often seeks to advance particular interests. Some of these interests, such as efficiency, justice, or fairness, are external to the law itself. Others may themselves be defined by the law, and so can be characterized as internal concepts. Either way, there is an assumption that legal rules have some causal efficacy in advancing interests. This is what is sometimes called an instrumental view of law.38
See Alon Harel, Why Law Matters 46 (Oxford 2014).
Causation is a good example of a concept that is used in both law and social science, in slightly different ways. Causation in social science is essentially conceived of in probabilistic terms.39
See Ellery Eells, Probabilistic Causality 34–35 (Cambridge 1991).
But see Antony Honoré, Causation in the Law (Stanford Encyclopedia of Philosophy, Nov 17, 2010), online at http://plato.stanford.edu/archives/win2016/entries/causation-law(visited Jan 23, 2017) (Perma archive unavailable) (noting the complexity of the relationship between causing harm and legal responsibility).
Other examples of causal legal relationships abound. When we ask if a regulation constitutes a taking of property (or an indirect expropriation, to use the international law term), we want to know whether a change in the level of regulation would lead to a change in one’s ability to use the property to the point that the owner should receive compensation.41
See Lucas v South Carolina Coastal Council, 505 US 1003, 1027 (1992) (discussing under what circumstances a state “may resist compensation” for “regulation that deprives land of all economically beneficial use”).
Pub L No 90-284, 82 Stat 81 (1968), codified as amended at 42 USC § 3601 et seq.
Pub L No 88-352, 78 Stat 252, codified as amended at 42 USC § 2000d et seq.
See Metropolitan Housing Development Corp v Village of Arlington Heights, 558 F2d 1283, 1290–91 (7th Cir 1977).
As these examples suggest, recognizing that legal concepts often involve relationships implies that we ought to favor concepts whose connections can in fact be identified and established. This is because such concepts can in principle be applied in consistent and precise ways across cases. While we know that not every concept can be captured by a real-world indicator or variable, we still think it valuable for lawyers and judges to focus on relationships for which the basic logic of X and Y holds.
Of course, the fact that not every relationship between concepts can be measured poses challenges for certain analyses. For instance, legal philosophers have wrestled with the idea of incommensurability, “the absence of a scale or metric.”45
Matthew Adler, Law and Incommensurability: Introduction, 146 U Pa L Rev 1169, 1170 (1998).
II. Conceptualizing Constitutional Law
To reiterate the discussion to this point: Social scientists have developed reasonably determinate criteria for distinguishing between effective and ineffective concepts, and between conceptual relationships that can and cannot be demonstrated. In brief, the hallmarks of effective concepts are resonance, domain specificity, consistency, fecundity, differentiation from other concepts, causal utility, and, above all, measurability. Similarly, conceptual relationships involving correlation or causality are more easily established than ones involving necessity or the weighing of incommensurable quantities.
How well does law perform under these criteria? Are its concepts and conceptual relationships satisfactory or in need of improvement? These questions are far too broad to be answered fully here, but we begin to address them using a series of examples from American constitutional law. These examples include both poor concepts and relationships (for which we suggest improvement) and effective ones (for which we explain why they are useful). Constitutional law also strikes us as an unusually fertile field to plow for illustrations. It is a subject that brims with concepts and complex linkages among them. These concepts and linkages are largely (though not entirely) judicially created, meaning that they can be revised by the courts as well. And, not unimportantly for a project that potentially implicates law’s entire empire, constitutional law is a discrete domain with which we are relatively familiar.
A. Poor Concepts
Before labeling any concept as poor, we must note a number of caveats. First, our tags are based not on a rigorous examination of all constitutional concepts (a daunting task to say the least), but rather on an impressionistic survey of several high-profile areas. In other words, we do not claim to have identified the worst (or best) concepts, but only a few concepts that mostly fail (or satisfy) the social scientific criteria for conceptualization. Second, our treatment of each concept is necessarily brief. We hit what we see as the essential points, but we cannot grapple here with each concept’s full complexity. And third, though our mode is diagnostic, criticizing certain concepts and praising others, our ultimate aim is prescriptive. That is, we are interested in contemplating how constitutional law might look if its concepts were more effective—and in finding ways to push the doctrine in that direction.
Having disposed of these preliminaries, corruption is our first example of a concept that we regard as unhelpful. The prevention of corruption is the only justification the Supreme Court has recognized for burdening First Amendment rights by restricting the financing of political campaigns.46
See McCutcheon v Federal Election Commission, 134 S Ct 1434, 1450 (2014) (Roberts) (plurality).
See, for example, Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 14 Const Commen 127, 128–35 (1997) (discussing three academic and three judicial definitions of corruption); Yasmin Dawood, Classifying Corruption, 9 Duke J Const L & Pub Pol 103, 106–32 (2014) (going through ten separate notions of corruption).
See, for example, McCutcheon, 134 S Ct at 1450 (Roberts) (plurality) (“Congress may target only a specific type of corruption[,] . . . large contributions that are given to secure a political quid pro quo from current and potential office holders.”) (quotation marks and brackets omitted).
See, for example, McConnell v Federal Election Commission, 540 US 93, 150 (2003) (“Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing undue influence on an officeholder’s judgment, and the appearance of such influence.”) (quotation marks omitted).
See, for example, Austin v Michigan State Chamber of Commerce, 494 US 652, 660 (1990) (recognizing “a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form”).
In terms of the social scientific criteria, these shifting notions mean that corruption lacks domain specificity, consistency, and differentiation from other concepts. Domain specificity is missing because the narrower version applies to only the restriction of campaign contributions, while the two broader versions justify the limitation of campaign expenditures as well.51
Compare Citizens United v Federal Election Commission, 558 US 310, 361 (2010), with McConnell, 540 US at 203, and Austin, 494 US at 660.
As should be clear from this discussion, our critique is not that the Court has used inconsistent words to describe the same underlying concept. Rather, each of the Court’s definitions of corruption corresponds to an entirely different notion of what it means for elected officials to be corrupt.
One might respond that most of these difficulties would be avoided if the Court could only settle on a single notion of corruption. But there is no easy way in which the Court could do so because, as several scholars have pointed out, corruption is a derivative concept that becomes intelligible only through an antecedent theory of purity for the entity at issue.53
See, for example, Burke, 14 Const Commen at 128 (cited in note 47) (“When corruption is proclaimed in political life it presumes some ideal state.”); Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich L Rev 1385, 1389 (2013) (“[C]orruption is a derivative concept, meaning it depends on a theory of the institution or official involved.”).
Moreover, even if the Court somehow managed to stick to a single notion of corruption, it would run into further issues of measurability and causal utility. These issues stem from the covert nature of most corrupt activities. When politicians trade votes for money, they do so in secret. When officeholders merely offer access or influence to their funders, they again do so as furtively as possible. Precisely for these reasons, social scientists have rarely been able to quantify corruption itself, resorting instead to rough proxies such as people’s trust in government54
See, for example, Nathaniel Persily and Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U Pa L Rev 119, 145–48 (2004). See also Corruption Perceptions Index 2015 (Transparency International, Feb 1, 2016), archived at http://perma.cc/C4XQ-6CE3.
See, for example, Adriana Cordis and Jeff Milyo, Do State Campaign Finance Reforms Reduce Public Corruption? *11–16 (unpublished manuscript, Jan 2013), archived at http://perma.cc/9KRP-FC9C.
See id at *21–28; Persily and Lammie, 153 U Pa L Rev at 148–49 (cited in note 54).
Thanks to its poor performance on almost every criterion, we consider corruption to be an unsalvageable concept. It has not been, nor can it be, properly defined or measured. If it were abandoned, though, what would take its place in the campaign finance case law? We see two options. Less controversially, corruption could be swapped for one of the concepts into which it blurs, such as bribery. More provocatively (because further doctrinally afield), campaign finance regulation could be justified based on its promotion of distinct values such as electoral competitiveness, voter participation, or congruence with the median voter’s preferences.57
As to the last of these values, see generally Nicholas O. Stephanopoulos, Aligning Campaign Finance Law, 101 Va L Rev 1425 (2015).
We turn next to our second example of a flawed constitutional concept: political powerlessness, which is one of the four indicia of suspect class status under equal protection law.58
Political powerlessness was first recognized as a factor in San Antonio Independent School District v Rodriguez, 411 US 1, 28 (1973).
See Nicholas O. Stephanopoulos, Political Powerlessness, 90 NYU L Rev 1527, 1537–42 (2015) (discussing the various judicial versions of powerlessness).
And again as with corruption, these multiple notions of powerlessness sap the concept of consistency and differentiation from other concepts. The inconsistency is obvious; the notions of powerlessness are not just multiple, but also irreconcilable.60
See id at 1540 (“The crucial point about these definitions is that they are entirely inconsistent with one another.”). Accordingly, these are not just different ways of expressing the same underlying idea; rather, they are divergent accounts of what it means to be powerless in the first place. See note 52.
See, for example, Varnum v Brien, 763 NW2d 862, 888 (Iowa 2009) (pointing out “the flexible manner in which the Supreme Court has applied the four factors [relevant to suspect class status]”).
However, unlike with corruption, a particular definition of powerlessness may be theoretically compelled—and is certainly not theoretically precluded. The powerlessness factor has its roots in United States v Carolene Products Co’s62
304 US 144 (1938).
Id at 152 n 4.
See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv L Rev 713, 719 (1985) (“[G]enerations of American political scientists have filled in the picture of pluralist democracy presupposed by Carolene’s distinctive argument for minority rights.”).
See Stephanopoulos, 90 NYU L Rev at 1549–54 (cited in note 59) (making this argument at length).
Furthermore, if powerlessness is so understood, it becomes possible to measure and apply it. Social scientists have compiled extensive data on both the policy preferences of different groups and whether these preferences are realized in enacted law.66
See, for example, Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America 57–66 (Princeton 2012).
See, for example, id at 77–87.
See Stephanopoulos, 90 NYU L Rev at 1583–84, 1590–92 (cited in note 59).
See, for example, Gilens, Affluence and Influence at 80–81 (cited in note 66); Patrick Flavin, Income Inequality and Policy Representation in the American States, 40 Am Polit Rsrch 29, 40–44 (2012).
Because powerlessness can be—even though it has not been—defined and measured properly, we come to a different verdict for it than for corruption. That is, we recommend discarding the Court’s various notions of it and replacing them with the pluralist conception outlined above. Considering corruption and powerlessness in tandem also allows us to hazard a guess as to why the Court sometimes adopts faulty concepts. In both of these (potentially unrepresentative) cases, the Court borrowed complex ideas from democratic theory without fully grasping the ideas’ internal logic. At best (as with powerlessness), this approach leads to the circulation of numerous definitions of the concept, one of which is eventually found to be theoretically and practically defensible. At worst (as with corruption), the approach causes multiple definitions to be bandied about, none of which is theoretically legitimate or capable of being operationalized. Plainly, this is a far cry from textbook concept formation.
B. Effective Concepts
We doubt that the Court ever complies perfectly with any social scientific textbook. But the Court does, on occasion, recognize constitutional concepts that are significantly more effective than the ones analyzed to this point. As a first example of a successful concept, take partisan symmetry, which five justices tentatively endorsed in a recent case as a potential foundation for a test for partisan gerrymandering.70
See League of United Latin American Citizens v Perry, 548 US 399, 420 (2006) (Kennedy) (plurality) (“LULAC”); id at 466 (Stevens concurring in part and dissenting in part); id at 483 (Souter concurring in part and dissenting in part); id at 492 (Breyer concurring in part and dissenting in part).
Id at 466 (Stevens concurring in part and dissenting in part).
See Vieth v Jubelirer, 541 US 267, 285–86 (2004) (Scalia) (plurality).
Partisan symmetry performs suitably well along all of the relevant dimensions. It is resonant and fecund because it captures the core harm of gerrymandering: a district plan that enables one party to translate its votes into seats more efficiently than its rival.73
See id at 271 n 1 (Scalia) (plurality) (noting that gerrymandering has been defined as “giv[ing] one political party an unfair advantage by diluting the opposition’s voting strength”).
Compare LULAC, 548 US at 466 (Stevens concurring in part and dissenting in part), with Bernard Grofman and Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry, 6 Election L J 2, 6 (2007).
See Grofman and King, 6 Election L J at 8 (cited in note 74) (“Measuring symmetry . . . does not require ‘proportional representation’ (where each party receives the same proportion of seats as it receives in votes).”).
See id at 10 (noting that symmetry is measured using “highly mature statistical methods [that] rely on well-tested and well-accepted statistical procedures”).
However, we do not mean to claim that partisan symmetry is a flawless concept. It does not take into account odd district shape or partisan motivation, both aspects of gerrymandering as the practice is commonly understood. Its calculation requires fairly strong assumptions about uncontested races and shifts in the statewide vote.77
See LULAC, 548 US at 420 (Kennedy) (plurality) (criticizing partisan bias because it “may in large part depend on conjecture about where possible vote-switchers will reside”); Nicholas O. Stephanopoulos and Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U Chi L Rev 831, 865–67 (2015) (discussing the imputation of results for uncontested races).
These are partisan bias, which is the divergence in the share of seats that each party would win given the same share of the statewide vote, see Grofman and King, 6 Election L J at 6 (cited in note 74), and the efficiency gap, which is “the difference between the parties’ respective wasted votes, divided by the total number of votes cast,” Stephanopoulos and McGhee, 82 U Chi L Rev at 851 (cited in note 77) (emphasis omitted).
Our second example of an effective concept, racial polarization in voting, has had a doctrinal history similar to that of partisan symmetry. Between the early 1970s and the mid-1980s, the Court struggled to identify the exact problem with racial vote dilution (the reduction of minorities’ electoral influence through means other than burdening the franchise).79
See Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 Mich L Rev 1833, 1844 (1992) (noting the “absence of an overriding conception of the precise constitutional harm the courts were seeking to remedy” in this period).
See White v Regester, 412 US 755, 765–70 (1973); Zimmer v McKeithen, 485 F2d 1297, 1305–07 (5th Cir 1973).
See Thornburg v Gingles, 478 US 30, 51 (1986). Importantly, while the pre-Gingles vote dilution cases were brought under the Fourteenth Amendment, dilution cases from Gingles onward have generally been launched under § 2 of the Voting Rights Act, codified at 52 USC § 10301.
Gingles, 478 US at 62 (Brennan) (plurality).
Like partisan symmetry, racial polarization in voting complies reasonably well with all of the social scientific criteria for conceptualization. It is resonant and fecund because it reflects the reality that racial vote dilution is possible only under polarized electoral conditions. If polarization does not exist, then neither can a minority group prefer a distinct candidate, nor can the majority thwart a minority-preferred candidate’s election.83
See, for example, Growe v Emison, 507 US 25, 40 (1993).
Minority voters can be disproportionately burdened by an electoral regulation (say, a photo identification requirement) whether or not they are polarized from the white majority.
The Gingles Court noted that “courts and commentators agree that racial bloc voting is a key element of a vote dilution claim,” Gingles, 478 US at 55, and endorsed the district court’s use of “methods standard in the literature for the analysis of racially polarized voting,” id at 53 n 20.
Geographic compactness is also a prerequisite for liability for vote dilution, while responsiveness is a factor to be considered at the later totality-of-circumstances stage. See id at 45, 50.
See id at 52–53 (referring to “two complementary methods of analysis—extreme case analysis and bivariate ecological regression analysis”).
But also like partisan symmetry, racial polarization in voting has its warts too. Not all commentators agree that it is troublesome when it is caused by forces other than racial prejudice, such as differences in partisanship or socioeconomic status.88
See, for example, League of United Latin American Citizens, Council No 4434 v Clements, 999 F2d 831, 854 (5th Cir 1993) (en banc).
See, for example, Christopher S. Elmendorf and Douglas M. Spencer, Administering Section 2 of the Voting Rights Act after Shelby County, 115 Colum L Rev 2143, 2195–2215 (2015).
See, for example, Christopher S. Elmendorf, Kevin M. Quinn, and Marisa A. Abrajano, Racially Polarized Voting, 83 U Chi L Rev 587, 611–19 (2016); Nicholas O. Stephanopoulos, Civil Rights in a Desegregating America, 83 U Chi L Rev 1329, 1386–87 (2016).
See Ellen Katz, et al, Documenting Discrimination in Voting: Judicial Findings under Section 2 of the Voting Rights Act since 1982, 39 U Mich J L Ref 643, 663–75 (2006).
As before, we are wary of generalizing based on only a pair of cases. But considered together, partisan symmetry and racial polarization in voting suggest that the Court does better when it turns for concepts to empirical political science than to high democratic theory. Before they ever appeared in the Court’s case law, symmetry and polarization had been precisely defined and then measured using large volumes of data as well as methods that steadily improved over time.92
See, for example, Andrew Gelman and Gary King, Enhancing Democracy through Legislative Redistricting, 88 Am Polit Sci Rev 541, 545–46 (1994); Bernard Grofman, Michael Migalski, and Nicholas Noviello, The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective, 7 L & Pol 199, 202–09 (1985).
C. Poor Relationships
We turn next to examples of poor and effective conceptual relationships in constitutional law. We also reiterate our earlier caveats: that the cases we highlight are not necessarily representative, that our discussion of each case is relatively brief, and that we mean for our descriptive analysis to have normative implications for the structure of constitutional doctrine.
That said, the narrow tailoring requirement of strict scrutiny is our first example of an unhelpful constitutional relationship. As a formal matter, this requirement states that, to survive review, a challenged policy must be “necessary”93
Adarand Constructors, Inc v Pena, 515 US 200, 230 (1995).
Ashcroft v American Civil Liberties Union, 542 US 656, 666 (2004).
See Richard H. Fallon Jr, Strict Judicial Scrutiny, 54 UCLA L Rev 1267, 1330 (2007). It is also worth clarifying how narrow tailoring fits into the terminology of words, concepts, and rules that we introduced earlier. We see it as a conceptual relationship, linking a challenged policy and an asserted governmental interest, that forms part of the doctrine of strict scrutiny.
See, for example, Adarand, 515 US at 227.
See, for example, Roe v Wade, 410 US 113, 155 (1973).
See, for example, Ashcroft, 542 US at 666.
The fundamental problem with narrow tailoring is that there is no reliable way to tell whether a policy is actually necessary or the least restrictive means for promoting a given interest. Social scientific techniques are very good at determining whether a means is related (that is, correlated) to an end. They are also reasonably adept at assessing causation, though this is a more difficult issue. Other variables that might be linked to the end can be controlled for, and all kinds of quasi-experimental approaches can be employed.99
See Lee Epstein and Gary King, The Rules of Inference, 69 U Chi L Rev 1, 2 (2002).
See Mark A. Graber, Unnecessary and Unintelligible, 12 Const Commen 167, 167 (1995) (“No necessary means exist in many cases for realizing certain purposes.”).
A somewhat different critique applies to the balancing that courts sometimes carry out instead of means-end analysis. Here, the trouble is that the quantities being compared—the harm inflicted by a policy, either by burdening certain rights or by classifying groups in certain ways, and the policy’s promotion of a compelling governmental interest—are incommensurable, in the sense we outlined earlier. Social science has little difficulty with the comparison of quantities that are measured using the same scale. Familiar techniques such as factor analysis also enable quantities measured using different scales to be collapsed into a single composite variable.101
See Nicholas O. Stephanopoulos, Spatial Diversity, 125 Harv L Rev 1903, 1938 (2012).
Bendix Autolite Corp v Midwesco Enterprises, Inc, 486 US 888, 897 (1988) (Scalia concurring in the judgment).
These faults of narrow tailoring seem irremediable to us. It is simply infeasible to have to determine a policy’s necessity or whether its harms are offset by its incommensurable benefits. Fortunately, an obvious alternative exists: the means-end analysis that courts conduct when they engage in intermediate scrutiny. In these cases, courts ask whether a policy is “substantially related” to the achievement of an important governmental objective.103
United States v Virginia, 518 US 515, 533 (1996).
See, for example, id at 573–74 (Scalia dissenting).
Our second example of a poor constitutional relationship is the undue burden test that applies to regulations of abortion, voting, and (when enacted by states) interstate commerce.105
Using our earlier terminology, the conceptual relationship here, between a challenged policy and an asserted governmental interest, essentially is the legal rule. This is not a problem for our analysis; it simply reflects the fact that doctrine is sometimes reducible to a single conceptual relationship.
See, for example, Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 874 (1992) (O’Connor, Kennedy, and Souter) (plurality) (“Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”).
See, for example, Crawford v Marion County Election Board, 472 F3d 949, 950, 952–54 (7th Cir 2007) (applying a constitutional test assessing whether a law constitutes “an undue burden on the right to vote”).
See, for example, Granholm v Heald, 544 US 460, 493 (2005) (Stevens dissenting) (“[A] state law may violate the unwritten rules described as the ‘dormant Commerce Clause’ [ ] by imposing an undue burden on both out-of-state and local producers engaged in interstate activities.”).
For example, an undue burden is sometimes treated as synonymous with a significant burden. “A finding of an undue burden is a shorthand for the conclusion that a state regulation . . . plac[es] a substantial obstacle in the path of a woman seeking an abortion,” declared the joint opinion in Planned Parenthood of Southeastern Pennsylvania v Casey.109
505 US 833, 877 (1992) (O’Connor, Kennedy, and Souter) (plurality). See also
Burdick v Takushi, 504 US 428, 434 (1992) (focusing on “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments”).
On the other hand, an undue burden is sometimes construed as one that is unnecessary to achieve a legitimate governmental objective. The Casey joint opinion articulated the test in these terms as well: “Unnecessary health regulations that . . . present[ ] a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”110
Casey, 505 US at 878 (O’Connor, Kennedy, and Souter) (plurality). See also
Burdick, 504 US at 434 (inquiring into whether the policy imposing the burden is “narrowly drawn to advance a state interest of compelling importance”).
On still other occasions, the undue burden test devolves into judicial balancing, with the severity of a policy’s burden weighed against the degree to which the policy promotes governmental interests. The burden is then deemed undue if it fails this cost-benefit analysis. As the Court has stated in the Dormant Commerce Clause context, where it “has candidly undertaken a balancing approach in resolving these issues,” a policy “will be upheld unless the burden imposed on such commerce is [ ] excessive in relation to the putative local benefits.”111
Pike v Bruce Church, Inc, 397 US 137, 142 (1970). See also Storer v Brown, 415 US 724, 730 (1974) (commenting that there is “no litmus-paper test” for voting regulations, and that “[d]ecision in this context . . . is very much a matter of degree”) (quotation marks omitted).
Because several notions of an undue burden percolate in the case law, doctrinal progress is possible here without wholesale rejection of the status quo.112
By “doctrinal progress,” we simply mean articulating a more effective conceptual relationship. Of course, improvement on this axis may result in trade-offs along other dimensions.
See, for example, Burdick, 504 US at 434 (“[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.”).
D. Effective Relationships
In still other areas, no doctrinal revisions seem necessary because the existing conceptual relationships work well enough already. As a first example of effective relationships, take the traceability and redressability elements of standing. After appearing intermittently in the case law for years, these elements were constitutionalized in Lujan v Defenders of Wildlife.114
504 US 555 (1992).
Id at 560 (brackets and ellipsis omitted).
Id at 561 (quotation marks omitted).
Traceability and redressability are often analyzed together; in fact, “[m]ost cases view redressability as an essentially automatic corollary of [traceability].”117
Richard M. Re, Relative Standing, 102 Georgetown L J 1191, 1217 (2014). See also Massachusetts v Environmental Protection Agency, 549 US 497, 543 (2007) (Roberts dissenting) (“As is often the case, the questions of causation and redressability overlap.”).
Given that standing doctrine is often deemed “[e]xtremely fuzzy and highly manipulable,”118
Cass R. Sunstein, What’s Standing after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich L Rev 163, 228 (1992).
Fewer of these caveats are required for our second example of a successful constitutional relationship: the Necessary and Proper Clause, which authorizes Congress to enact any laws that are “necessary and proper for carrying into Execution” its enumerated powers.119
US Const Art I, § 8, cl 18. Here too, the conceptual relationship essentially is the legal rule itself. See note 105.
Graber, 12 Const Commen at 170 (cited in note 100). See also, for example, United States v Comstock, 560 US 126, 134 (2010) (“[T]he word ‘necessary’ does not mean ‘absolutely necessary.’”).
Comstock, 560 US at 133–34 (quotation marks omitted). See also National Federation of Independent Business v Sebelius, 132 S Ct 2566, 2591–92 (2012).
Comstock, 560 US at 134.
So construed, the Necessary and Proper Clause essentially demands that a statute be correlated with the promotion of a textually specified goal. That is, the statute must make the goal’s achievement at least somewhat more likely, or must lead to at least a somewhat higher level of the goal. Needless to say, it is relatively straightforward to identify a correlational link between a means and an end. Doing so, in fact, is one of the simpler tasks that can be asked of social science. This is why we approve of the sort of relationship that must be demonstrated under the Clause; it is the sort whose existence can be proven or rebutted with little room for debate.
However, we note that the Court has recently begun to revive the “Proper” in “Necessary and Proper”—and to infuse into it requirements other than a means-end correlation. In National
Federation of Independent Business v Sebelius,123
132 S Ct 2566 (2012).
Id at 2591–92 (quotation marks omitted).
Conclusion
Our inquiry into the social scientific disciplines of conceptualization and measurement suggests that they may have rich payoffs for lawyers. (To use a recurring term from our discussion, they are fecund.) Examining legal doctrines through the lens of conceptualization, we argue, allows us to evaluate what are good and bad concepts and relationships in law. We draw on one set of social science criteria for good concepts, which includes that they are resonant, have a stipulated domain, can be applied consistently, are fecund, are distinct from neighboring concepts, are useful, and can in principle be measured. Similarly, good relationships are those that involve causation or correlation, but not necessity or the weighing of incommensurable values.
We emphasize the criterion of potential measurability, which is another way of saying that courts should recognize concepts and relationships that are in principle verifiable. While in many cases this would be difficult to achieve in practice, the discipline of thinking in terms of whether X and Y can be reliably assessed, and whether X is linked to Y, would, we suspect, lead courts to greater consistency and thus predictability. In particular, our analysis suggests that courts should shy away from complex multipart tests that involve the ad hoc balancing of incommensurables.125
For further discussion of this point, see Richard A. Posner, Divergent Paths: The Academy and the Judiciary 117–21 (Harvard 2016).
- 10See Goertz, Social Science Concepts at 28–30 (cited in note 5); Gerring, Social Science Methodology at 112–13 (cited in note 5).
- 11The debate goes back to Aristotle. See Gerring, Social Science Methodology at 114–15 (cited in note 5). See also Eric Margolis and Stephen Laurence, Concepts (Stanford Encyclopedia of Philosophy, May 17, 2011), online at http://plato.stanford.edu/archives/
win2012/entries/concepts (visited Dec 28, 2016) (Perma archive unavailable). - 12See Margolis and Laurence, Concepts (cited in note 11).
- 13Goertz, Social Science Concepts at 5 (cited in note 5).
- 14See Ecuador Const Art 71, translation archived at http://perma.cc/DKJ5-E3K8(“Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”).
- 15See Gerring, Social Science Methodology at 136–37 (cited in note 5), citing Max Weber, The Methodology of the Social Sciences 90 (Free Press 1949) (Edward A. Shils and Henry A. Finch, eds and trans).
- 16Goertz, Social Science Concepts at 36 (cited in note 5).
- 17Margolis and Laurence, Concepts (cited in note 11).
- 18Cottrill v Sparrow, Johnson & Ursillo, Inc, 100 F3d 220, 225 (1st Cir 1996).
- 19See Gerring, Social Science Methodology at 117–19 (cited in note 5). See also John Gerring, What Makes a Concept Good? A Criterial Framework for Understanding Concept Formation in the Social Sciences, 31 Polity 357, 367 (1999) (offering a slightly different set of criteria).
- 20See Gerring, Social Science Methodology at 117 (cited in note 5) (listing Gerring’s criteria of conceptualization).
- 21See id at 117–19.
- 22See id at 119–21.
- 23See id at 121–24.
- 24Gerring, Social Science Methodology at 124 (cited in note 5).
- 25See id at 124–26.
- 26See Barbara Geddes, Paradigms and Sand Castles: Theory Building and Research Design in Comparative Politics 50–53 (Michigan 2003).
- 27See José Antonio Cheibub, Presidentialism, Parliamentarism, and Democracy 26–48 (Cambridge 2007).
- 28See Gerring, Social Science Methodology at 127–30 (cited in note 5).
- 29See id at 127.
- 30See Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination 57–59 (Yale 1979) (discussing whether sexual harassment fits neatly into the sex discrimination category).
- 31See Gerring, Social Science Methodology at 130–31 (cited in note 5).
- 32See Goertz, Social Science Concepts at 4 (cited in note 5) (noting that the key features are relevance “for hypotheses, explanations, and causal mechanisms”).
- 33See Gerring, Social Science Methodology at 156–57 (cited in note 5).
- 34See Cottrill, 100 F3d at 225.
- 35See Goertz, Social Science Concepts at 6 (cited in note 5).
- 36See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L J 710, 710 (1917).
- 37See id at 710, 716–17.
- 38See Alon Harel, Why Law Matters 46 (Oxford 2014).
- 39See Ellery Eells, Probabilistic Causality 34–35 (Cambridge 1991).
- 40But see Antony Honoré, Causation in the Law (Stanford Encyclopedia of Philosophy, Nov 17, 2010), online at http://plato.stanford.edu/archives/win2016/entries/causation-law(visited Jan 23, 2017) (Perma archive unavailable) (noting the complexity of the relationship between causing harm and legal responsibility).
- 41See Lucas v South Carolina Coastal Council, 505 US 1003, 1027 (1992) (discussing under what circumstances a state “may resist compensation” for “regulation that deprives land of all economically beneficial use”).
- 42Pub L No 90-284, 82 Stat 81 (1968), codified as amended at 42 USC § 3601 et seq.
- 43Pub L No 88-352, 78 Stat 252, codified as amended at 42 USC § 2000d et seq.
- 44See Metropolitan Housing Development Corp v Village of Arlington Heights, 558 F2d 1283, 1290–91 (7th Cir 1977).
- 45Matthew Adler, Law and Incommensurability: Introduction, 146 U Pa L Rev 1169, 1170 (1998).
- 46See McCutcheon v Federal Election Commission, 134 S Ct 1434, 1450 (2014) (Roberts) (plurality).
- 47See, for example, Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 14 Const Commen 127, 128–35 (1997) (discussing three academic and three judicial definitions of corruption); Yasmin Dawood, Classifying Corruption, 9 Duke J Const L & Pub Pol 103, 106–32 (2014) (going through ten separate notions of corruption).
- 48See, for example, McCutcheon, 134 S Ct at 1450 (Roberts) (plurality) (“Congress may target only a specific type of corruption[,] . . . large contributions that are given to secure a political quid pro quo from current and potential office holders.”) (quotation marks and brackets omitted).
- 49See, for example, McConnell v Federal Election Commission, 540 US 93, 150 (2003) (“Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing undue influence on an officeholder’s judgment, and the appearance of such influence.”) (quotation marks omitted).
- 50See, for example, Austin v Michigan State Chamber of Commerce, 494 US 652, 660 (1990) (recognizing “a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form”).
- 51Compare Citizens United v Federal Election Commission, 558 US 310, 361 (2010), with McConnell, 540 US at 203, and Austin, 494 US at 660.
- 52As should be clear from this discussion, our critique is not that the Court has used inconsistent words to describe the same underlying concept. Rather, each of the Court’s definitions of corruption corresponds to an entirely different notion of what it means for elected officials to be corrupt.
- 53See, for example, Burke, 14 Const Commen at 128 (cited in note 47) (“When corruption is proclaimed in political life it presumes some ideal state.”); Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich L Rev 1385, 1389 (2013) (“[C]orruption is a derivative concept, meaning it depends on a theory of the institution or official involved.”).
- 54See, for example, Nathaniel Persily and Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U Pa L Rev 119, 145–48 (2004). See also Corruption Perceptions Index 2015 (Transparency International, Feb 1, 2016), archived at http://perma.cc/C4XQ-6CE3.
- 55See, for example, Adriana Cordis and Jeff Milyo, Do State Campaign Finance Reforms Reduce Public Corruption? *11–16 (unpublished manuscript, Jan 2013), archived at http://perma.cc/9KRP-FC9C.
- 56See id at *21–28; Persily and Lammie, 153 U Pa L Rev at 148–49 (cited in note 54).
- 57As to the last of these values, see generally Nicholas O. Stephanopoulos, Aligning Campaign Finance Law, 101 Va L Rev 1425 (2015).
- 58Political powerlessness was first recognized as a factor in San Antonio Independent School District v Rodriguez, 411 US 1, 28 (1973).
- 59See Nicholas O. Stephanopoulos, Political Powerlessness, 90 NYU L Rev 1527, 1537–42 (2015) (discussing the various judicial versions of powerlessness).
- 60See id at 1540 (“The crucial point about these definitions is that they are entirely inconsistent with one another.”). Accordingly, these are not just different ways of expressing the same underlying idea; rather, they are divergent accounts of what it means to be powerless in the first place. See note 52.
- 61See, for example, Varnum v Brien, 763 NW2d 862, 888 (Iowa 2009) (pointing out “the flexible manner in which the Supreme Court has applied the four factors [relevant to suspect class status]”).
- 62304 US 144 (1938).
- 63Id at 152 n 4.
- 64See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv L Rev 713, 719 (1985) (“[G]enerations of American political scientists have filled in the picture of pluralist democracy presupposed by Carolene’s distinctive argument for minority rights.”).
- 65See Stephanopoulos, 90 NYU L Rev at 1549–54 (cited in note 59) (making this argument at length).
- 66See, for example, Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America 57–66 (Princeton 2012).
- 67See, for example, id at 77–87.
- 68See Stephanopoulos, 90 NYU L Rev at 1583–84, 1590–92 (cited in note 59).
- 69See, for example, Gilens, Affluence and Influence at 80–81 (cited in note 66); Patrick Flavin, Income Inequality and Policy Representation in the American States, 40 Am Polit Rsrch 29, 40–44 (2012).
- 70See League of United Latin American Citizens v Perry, 548 US 399, 420 (2006) (Kennedy) (plurality) (“LULAC”); id at 466 (Stevens concurring in part and dissenting in part); id at 483 (Souter concurring in part and dissenting in part); id at 492 (Breyer concurring in part and dissenting in part).
- 71Id at 466 (Stevens concurring in part and dissenting in part).
- 72See Vieth v Jubelirer, 541 US 267, 285–86 (2004) (Scalia) (plurality).
- 73See id at 271 n 1 (Scalia) (plurality) (noting that gerrymandering has been defined as “giv[ing] one political party an unfair advantage by diluting the opposition’s voting strength”).
- 74Compare LULAC, 548 US at 466 (Stevens concurring in part and dissenting in part), with Bernard Grofman and Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry, 6 Election L J 2, 6 (2007).
- 75See Grofman and King, 6 Election L J at 8 (cited in note 74) (“Measuring symmetry . . . does not require ‘proportional representation’ (where each party receives the same proportion of seats as it receives in votes).”).
- 76See id at 10 (noting that symmetry is measured using “highly mature statistical methods [that] rely on well-tested and well-accepted statistical procedures”).
- 77See LULAC, 548 US at 420 (Kennedy) (plurality) (criticizing partisan bias because it “may in large part depend on conjecture about where possible vote-switchers will reside”); Nicholas O. Stephanopoulos and Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U Chi L Rev 831, 865–67 (2015) (discussing the imputation of results for uncontested races).
- 78These are partisan bias, which is the divergence in the share of seats that each party would win given the same share of the statewide vote, see Grofman and King, 6 Election L J at 6 (cited in note 74), and the efficiency gap, which is “the difference between the parties’ respective wasted votes, divided by the total number of votes cast,” Stephanopoulos and McGhee, 82 U Chi L Rev at 851 (cited in note 77) (emphasis omitted).
- 79See Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 Mich L Rev 1833, 1844 (1992) (noting the “absence of an overriding conception of the precise constitutional harm the courts were seeking to remedy” in this period).
- 80See White v Regester, 412 US 755, 765–70 (1973); Zimmer v McKeithen, 485 F2d 1297, 1305–07 (5th Cir 1973).
- 81See Thornburg v Gingles, 478 US 30, 51 (1986). Importantly, while the pre-Gingles vote dilution cases were brought under the Fourteenth Amendment, dilution cases from Gingles onward have generally been launched under § 2 of the Voting Rights Act, codified at 52 USC § 10301.
- 82Gingles, 478 US at 62 (Brennan) (plurality).
- 83See, for example, Growe v Emison, 507 US 25, 40 (1993).
- 84Minority voters can be disproportionately burdened by an electoral regulation (say, a photo identification requirement) whether or not they are polarized from the white majority.
- 85The Gingles Court noted that “courts and commentators agree that racial bloc voting is a key element of a vote dilution claim,” Gingles, 478 US at 55, and endorsed the district court’s use of “methods standard in the literature for the analysis of racially polarized voting,” id at 53 n 20.
- 86Geographic compactness is also a prerequisite for liability for vote dilution, while responsiveness is a factor to be considered at the later totality-of-circumstances stage. See id at 45, 50.
- 87See id at 52–53 (referring to “two complementary methods of analysis—extreme case analysis and bivariate ecological regression analysis”).
- 88See, for example, League of United Latin American Citizens, Council No 4434 v Clements, 999 F2d 831, 854 (5th Cir 1993) (en banc).
- 89See, for example, Christopher S. Elmendorf and Douglas M. Spencer, Administering Section 2 of the Voting Rights Act after Shelby County, 115 Colum L Rev 2143, 2195–2215 (2015).
- 90See, for example, Christopher S. Elmendorf, Kevin M. Quinn, and Marisa A. Abrajano, Racially Polarized Voting, 83 U Chi L Rev 587, 611–19 (2016); Nicholas O. Stephanopoulos, Civil Rights in a Desegregating America, 83 U Chi L Rev 1329, 1386–87 (2016).
- 91See Ellen Katz, et al, Documenting Discrimination in Voting: Judicial Findings under Section 2 of the Voting Rights Act since 1982, 39 U Mich J L Ref 643, 663–75 (2006).
- 92See, for example, Andrew Gelman and Gary King, Enhancing Democracy through Legislative Redistricting, 88 Am Polit Sci Rev 541, 545–46 (1994); Bernard Grofman, Michael Migalski, and Nicholas Noviello, The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective, 7 L & Pol 199, 202–09 (1985).
- 93Adarand Constructors, Inc v Pena, 515 US 200, 230 (1995).
- 94Ashcroft v American Civil Liberties Union, 542 US 656, 666 (2004).
- 95See Richard H. Fallon Jr, Strict Judicial Scrutiny, 54 UCLA L Rev 1267, 1330 (2007). It is also worth clarifying how narrow tailoring fits into the terminology of words, concepts, and rules that we introduced earlier. We see it as a conceptual relationship, linking a challenged policy and an asserted governmental interest, that forms part of the doctrine of strict scrutiny.
- 96See, for example, Adarand, 515 US at 227.
- 97See, for example, Roe v Wade, 410 US 113, 155 (1973).
- 98See, for example, Ashcroft, 542 US at 666.
- 99See Lee Epstein and Gary King, The Rules of Inference, 69 U Chi L Rev 1, 2 (2002).
- 100See Mark A. Graber, Unnecessary and Unintelligible, 12 Const Commen 167, 167 (1995) (“No necessary means exist in many cases for realizing certain purposes.”).
- 101See Nicholas O. Stephanopoulos, Spatial Diversity, 125 Harv L Rev 1903, 1938 (2012).
- 102Bendix Autolite Corp v Midwesco Enterprises, Inc, 486 US 888, 897 (1988) (Scalia concurring in the judgment).
- 103United States v Virginia, 518 US 515, 533 (1996).
- 104See, for example, id at 573–74 (Scalia dissenting).
- 105Using our earlier terminology, the conceptual relationship here, between a challenged policy and an asserted governmental interest, essentially is the legal rule. This is not a problem for our analysis; it simply reflects the fact that doctrine is sometimes reducible to a single conceptual relationship.
- 106See, for example, Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 874 (1992) (O’Connor, Kennedy, and Souter) (plurality) (“Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”).
- 107See, for example, Crawford v Marion County Election Board, 472 F3d 949, 950, 952–54 (7th Cir 2007) (applying a constitutional test assessing whether a law constitutes “an undue burden on the right to vote”).
- 108See, for example, Granholm v Heald, 544 US 460, 493 (2005) (Stevens dissenting) (“[A] state law may violate the unwritten rules described as the ‘dormant Commerce Clause’ [ ] by imposing an undue burden on both out-of-state and local producers engaged in interstate activities.”).
- 109505 US 833, 877 (1992) (O’Connor, Kennedy, and Souter) (plurality). See also
Burdick v Takushi, 504 US 428, 434 (1992) (focusing on “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments”). - 110Casey, 505 US at 878 (O’Connor, Kennedy, and Souter) (plurality). See also
Burdick, 504 US at 434 (inquiring into whether the policy imposing the burden is “narrowly drawn to advance a state interest of compelling importance”). - 111Pike v Bruce Church, Inc, 397 US 137, 142 (1970). See also Storer v Brown, 415 US 724, 730 (1974) (commenting that there is “no litmus-paper test” for voting regulations, and that “[d]ecision in this context . . . is very much a matter of degree”) (quotation marks omitted).
- 112By “doctrinal progress,” we simply mean articulating a more effective conceptual relationship. Of course, improvement on this axis may result in trade-offs along other dimensions.
- 113See, for example, Burdick, 504 US at 434 (“[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.”).
- 114504 US 555 (1992).
- 115Id at 560 (brackets and ellipsis omitted).
- 116Id at 561 (quotation marks omitted).
- 117Richard M. Re, Relative Standing, 102 Georgetown L J 1191, 1217 (2014). See also Massachusetts v Environmental Protection Agency, 549 US 497, 543 (2007) (Roberts dissenting) (“As is often the case, the questions of causation and redressability overlap.”).
- 118Cass R. Sunstein, What’s Standing after Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich L Rev 163, 228 (1992).
- 119US Const Art I, § 8, cl 18. Here too, the conceptual relationship essentially is the legal rule itself. See note 105.
- 120Graber, 12 Const Commen at 170 (cited in note 100). See also, for example, United States v Comstock, 560 US 126, 134 (2010) (“[T]he word ‘necessary’ does not mean ‘absolutely necessary.’”).
- 121Comstock, 560 US at 133–34 (quotation marks omitted). See also National Federation of Independent Business v Sebelius, 132 S Ct 2566, 2591–92 (2012).
- 122Comstock, 560 US at 134.
- 123132 S Ct 2566 (2012).
- 124Id at 2591–92 (quotation marks omitted).
- 125For further discussion of this point, see Richard A. Posner, Divergent Paths: The Academy and the Judiciary 117–21 (Harvard 2016).