Despite its formal status as promulgator of federal-court rules of practice and procedure, the Supreme Court is a suboptimal rule interpreter, as recent groundbreaking but flawed rules decisions illustrate. Scholars have proposed abstention mechanisms to constrain the Court in certain rule-interpretation contexts, but these mechanisms disable the Court from performing its core adjudicatory functions of dispute resolution and law interpretation. This Article urges a different solution: bring the rulemakers to the Court. It argues that the Rules Committees—those bodies primarily responsible for studying the rules and drafting rule amendments—should take up a modest amicus practice in rules cases to offer the Court information that may improve its decision making in rules cases. The Article explores the possible forms of such a role and articulates guiding norms for its structure, timing, and content.
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Moral Commitments in Cost-Benefit Analysis
The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalogue the costs and benefits of regulations before issuing them, and in general, must show that their benefits justify their costs. Agencies have well-established tools for valuing risks to health, safety, and the environment. Sometimes, however, regulations are designed to protect moral values, and agencies struggle to quantify those values; on important occasions, they ignore them. That is a mistake. People may care deeply about such values, and they suffer a welfare loss when moral values are compromised. If so, the best way to measure that welfare loss is through eliciting private willingness to pay. Of course, it is true that some moral commitments cannot be counted in cost-benefit analysis because the law rules them off-limits. It is also true that the principal reason to protect moral values is not to prevent welfare losses to those who care about those values. But from the welfarist standpoint, those losses matter, and they might turn out to be very large. Agencies should take them into account. If they fail to do so, they might well be acting arbitrarily and hence in violation of the Administrative Procedure Act. These claims raise fundamental issues in legal and political theory about welfarism and its limits, and they also bear on a wide variety of issues, including protection of foreigners, of victims of mass atrocities, of children, of rape victims, of disabled people, of future generations, and of animals.
Are Speech Rights for Speakers?
Though it may sound surprising, there is a great deal of debate about whether speakers have free speech rights. Those who deny it say that the freedom of speech protects listeners, not speakers. Lately, these skeptics can point for support to First Amendment case law, which is expanding in ways that draw speakers’ rights into question. When search engines, Internet service providers, food producers, and so on are claiming immunity from regulation because they are speakers, the time has come to reevaluate speakers’ rights.
This Article does just that. It confronts hard questions about whether speakers have rights, including the argument that it is illogical for speakers to have rights. It shows that this is not the case. In fact, under the most plausible views of freedom of speech, speakers must have free speech rights.
Nevertheless, recognizing speakers’ rights is often inconvenient and difficult. Above all else, recognizing speakers’ rights has tended to distract from listeners’ rights, to less than salutary effect. These problems are real. But rights by definition complicate matters. The fact that they do so is not a reason to reject them.