This Note applies some implications of recent law and norms literature, unexplored in existent academic writing, to the constitutional law of defamation. Theories of norms conceptualize social perceptions as constraints upon selfish individual behavior. Community members experience costs when they are observed violating social norms. These costs increase the likelihood of individual conformity to a norm. When the norm corresponds to cooperation in the face of collective action problems, social judgment benefits the community by making such cooperation more likely. The maintenance of high levels of norm adherence within a community depends on the public circulation of true information regarding members’ norm adherence. False information alleging norm violation, or false negative gossip, imposes a negative externality by decreasing the expected costs of norm violation. Law and norms, therefore, suggests that dissemination of false negative gossip should be harshly punished to minimize its associated negative externality. The actual U.S. law of defamation, surprisingly, has moved in the opposite direction—relaxing the common law’s harsh punishment for dissemination of false negative speech. While this shift rests upon a defensible understanding of the incentives to engage in political speech, the Supreme Court opinions overturning the common law of defamation seriously underestimate the costs of false negative gossip. As a result, negligence liability was quite likely a better replacement for strict liability common law defamation than the recklessness rule actually adopted. Worse still, the common law of defamation may have been socially optimal, making it entirely right and any Court-imposed changes entirely wrong.
Note
Judicial Takings and the Course Pursued
This Note will argue that the constitutional holding of Erie Railroad Co. v. Tompkins requires that the takings protections of the Federal Constitution apply to state judge-made law as well as state statutes and administrative regulations. It will contend that Erie requires that the federal government not interfere with state separation-of-powers decisions, and that state courts be presumed to have the authority to make real law, binding as statute, on behalf of the states. Imbued with such power, in making law, state courts are at least capable of offending the takings protections of the Constitution. For the federal government to ignore such a capability would not only allow easy circumvention of the Takings Clause but also introduce an impermissible “exogenous factor into a state’s choice of the proper branch to make changes in property law” in violation of Erie’s constitutional holding. Though a daunting charge, answering the background-principles question is inherent in the complex enterprise of one sovereign policing changes in another sovereign’s laws. So long as state courts wield lawmaking power, exercising the will of the state by articulating new legal rules, and so long as states are prohibited from changing legal rules in ways that take private property for public use without just compensation, federal courts must take up the task.
Saving this Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms
Motherhood. Apple pie. Life tenure for United States Supreme Court justices. What do these three things have in common? An attack on any one of these “sacred cows” has come to be seen by many as an attack on America itself. But why should it be so for life tenure? Certainly, Alexander Hamilton and the other Founding Fathers intended the federal judiciary to be independent of and protected from the influences of the political branches of government, and life tenure was a vehicle for such an effort. But life tenure was by no means the only option, and, as this Note argues, not even the best one.
Life tenure for Supreme Court justices may have helped to insulate the robed tribunal from political pressures, but it has created considerable problems of its own. First, as justices have become more personally invested in their decisions, they have become more and more loathe to allow a president with opposing viewpoints to name their successors. The result has been strategic retirements—carefully timed departures—that allow presidents to fill vacancies with similarly like-minded judges. The phenomenon of strategic retirements has become increasingly worse as the Court has entered the “culture wars” of the post-Vietnam War era. Second, the present system creates incentives that reward presidents who name young nominees to the Court. The current system gives an improper incentive to a president to nominate a young candidate for the Court because a younger nominee generally ensures the perpetuation of the president’s particular sociopolitical vision over a longer tenure. Finally, the current system creates an utterly random distribution of Supreme Court appointments among presidents. For example, something is amiss under the present system when one president can, by random chance, have three, four, or even nine opportunities to appoint a justice to the Court in one presidential term, while another president might not have a single nomination. It is potentially troubling for one president to enjoy the fortuitous opportunity to pack the Court when his successor may not have the opportunity to nominate anyone.
The best way to address these three problems bred by life tenure is to replace life tenure on the Supreme Court with a system of staggered, nonrenewable eighteen-year terms. Ending life tenure would require a constitutional amendment. The amendment proposed by this Note would eliminate the justices’ ability to strategically retire, temper the incentives for presidents to nominate young justices to the Court at the expense of older candidates, and guarantee each president two nominations per term. Because justices could not be reappointed, the proposed amendment would arguably leave them with as much independence as they have under the current system. Moreover, even when a justice’s term on the Court has expired, nothing would prevent him or her from continuing to serve on a lower federal court of his or her choosing for life. The amendment proposed by this Note ensures the protection of Hamilton’s goal of an independent judiciary insulated from political pressures while preventing justices and presidents from playing political games of their own with the nomination process.