The politics of line-drawing

Note: this is the fourth in a series of six blog posts …

Now that we have identified the reasons why we must draw lines–why it is most questions in law and ethics boil down to difficult line-drawing exercises–let us next consider a second-order line-drawing question. In brief, regardless of where a particular legal or moral line is drawn, we must also ask: who gets to decide where the line should be drawn? In his beautiful essay “Line-Drawing and Legal Education,” Professor Orin Kerr poses this second-order question in Part IV of his paper. That is, whenever we talk about line-drawing in the legal–as opposed to the domains of morals or ethics–we are really asking two different questions. The first-order question is, Where should we draw a given line? The second-order question is, Who gets to decide where that line should be drawn?

Most people, however, forget to ask the second-level question. But why, pray tell, is this second-order question worth asking? Because, as one of my favorite political philosophy professors in college would say, “Where you stand depends on where you sit,” an idea referred to as Miles’ Law in the scholarly literature on politics. In other words, below the surface of every line-drawing question is a deeper “political” dimension because, more often than not, your institutional role–for instance: as a member of Congress, or as a member of an independent regulatory agency, or as an Article III or State court judge–will shape your views about the first-order question. By way of example, the ability of Congress to draw certain lines might be hampered by the fact that Congress is supposed to have enumerated and limited powers and also by the iron imperative of having to run for re-election every two or six years. Likewise, the ability of a regulatory agency to draw lines might be strictly curtailed under its organic act or enabling legislation. Even the ability of judges to draw lines is limited, since judges’ decisions are supposed to be constrained under the doctrine of stare decisis.

But why does the institutional context of line-drawing (“where you stand depends on where you sit”) make our legal rules a political matter? Because the ability to draw a line presupposes someone with the power to draw that line. As a result, whenever we remember to ask the second-level “Who decides?” question, we are really asking a political question: the question of who has the power to decide where the line gets to be drawn. In an ideal world, “law” would be above or apart from “politics”, but in the real world law is politics because only a specified set of actors or officials will have the power to make these line-drawing decisions!

After his exploration of the politics of line-drawing, Professor Kerr then presents several powerful critiques of line-drawing in the next-to-last section of the paper (Part V), which I consider to be the best part of the entire essay. I will therefore save the best for last and proceed into Part V in my next post …

Quote of the Day: Where You Stand... — Steemit

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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