Conflict Avoidance in Constitutional Law

Article — Volume 107, Issue 1

107 Va. L. Rev. 1
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*Charles L. Barzun is the Horace W. Goldsmith Professor of Law, University of Virginia School of Law. Michael D. Gilbert is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia. For helpful comments we thank Josh Bowers, John Harrison, Deborah Hellman, Doug Laycock, Sai Prakash, Dan Priel, George Rutherglen, Fred Schauer, Rich Schragger, Micah Schwartzman, Max Stearns, Eduardo Stordeur, Aaron Tang, and participants in the Constitutional Law and Economics Workshop and a workshop at Universidad Torcuato di Tella. For extraordinary research assistance we thank Clay Phillips, Ryan Ray, Jacob Rush, and Laura Toulme.Show More

­­­­Hard cases present a dilemma at the heart of constitutional law. Courts have a duty to decide them—to vindicate rights, to clarify law—but doing so leads to errors (judges do not know the “right answer”) and strains the credibility of courts as impartial decision makers. Theories of constitutional adjudication tend to embrace one horn of this dilemma. We explore a principle for deciding hard cases that appreciates both. We argue that courts should decide hard cases against the party who could have more easily avoided the conflict in the first place. This is the conflict-avoidance principle. The principle builds on and systematizes “least cost avoidance” in private law and myriad constitutional doctrines. We apply the principle to several cases, generating insights into discrimination, affirmative action, religion, and so on. The principle represents a form of common-law constitutionalism, and it reveals connections between rights, markets, and State power. It also invites objections, to which we respond. Conflict avoidance is not “value-neutral,” and it cannot resolve every hard case. But it can resolve many in a practical way.

Take any demand, however slight, which any creature, however weak, may make. Ought it not, for its own sole sake, to be satisfied? If not, prove why not? The only possible kind of proof you could adduce would be the exhibition of another creature who should make a demand that ran the other way.

William James (1891)1.William James, The Moral Philosopher and the Moral Life, 1 Int’l J. Ethics 330, 339 (1891).Show More


How should courts resolve hard constitutional cases?2.See Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057, 1060 (1975) (defining hard cases as ones where “no settled rule dictates a decision either way”).Show More On the one hand, deciding them on the merits strains courts’ credibility as impartial decision makers, especially when they engage in judicial review of legislation where the constitutional text is vague and the interests at stake essentially political.3.See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 971–73, 977–78 (1987) (criticizing interest balancing). For a thorough and optimistic account of the capacity of courts to balance interests optimally, see generally Robert Alexy, A Theory of Constitutional Rights (Julian Rivers trans., Oxford Univ. Press 2002) (1986) (offering an account of constitutional rights that connects the analytical, empirical, and normative dimensions of legal doctrine); Robert Alexy, Constitutional Rights, Balancing, and Rationality, 16 Ratio Juris. 131 (2003) (arguing that there is a rational structure within balancing). Roughly speaking, interest balancing focuses on which party (or possibly which group) can bear a loss in court more easily. Are the losses to this side (or to this principle) outweighed by the gains to the other? Our enterprise is quite different. We focus on which party could have avoided more easily the conflict that led to the hard case in the first place.Show More On the other hand, courts are constitutionally charged with deciding such cases. A refusal to decide them amounts to shirking that responsibility.4.U.S. Const. art. III, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 70 (1962) (explaining that not deciding cases must “be justified as compatible with the Court’s role as defender of the faith”).Show More Theories of constitutional adjudication often embrace one horn of this dilemma.5.Theories of judicial deference embrace the first horn by treating most constitutional issues as political ones appropriately decided by the political branches. See, e.g., James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 129–39 (1893) (explaining origins of judicial review); see also Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 7–8 (2004) (comparing early judicial review to contemporary practice). Originalist theories, “moral” interpretations, and “living constitutionalism” tend to treat constitutional questions as essentially legal questions with which the Court is properly tasked with deciding, thereby embracing the second horn. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 45–46 (1997) (discussing issues with living constitutionalist interpretations); James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, 92 B.U. L. Rev. 1171, 1172–73 (2012) (offering a “complete, ecumenical approach to constitutional interpretation”); David A. Strauss, The Living Constitution 41–44 (2010) (arguing that judges and lawyers are not properly equipped for originalist interpretation). Process theory and prudential approaches attempt to reconcile the two. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 4–5 (1980) (arguing that judicial review is best justified when it can be understood as a mechanism for improving the democratic process); Bickel, supra note 4, at 64 (“No good society can be unprincipled; and no viable society can be principle-ridden.”). Our approach draws on elements of both the process and prudential traditions.Show More This Article explores a principle that appreciates the force of both horns: courts should decide hard cases against the party who could have more easily avoided the constitutional conflict in the first place. We call this the conflict-avoidance principle.

To preview the principle, consider an example. Suppose a student wears a Confederate flag shirt to school, in violation of the dress code, and gets disciplined. She argues that this violates her free speech rights, and the school responds that it has the authority to ensure a conducive learning environment.6.Cf. Castorina ex rel. Rewt v. Madison Cnty. Sch. Bd., 246 F.3d 536, 538, 548 (6th Cir. 2001) (noting that a “disruption-free educational environment is a substantial government interest”); Defoe v. Spiva, 625 F.3d 324, 335 (6th Cir. 2010) (holding that the school officials’ concern that displays of the Confederate flag would be disruptive was reasonable).Show More For the sake of argument, assume the case is hard (we will say more about “hard cases” below). A court applying conflict avoidance would compare the relative costs to the parties of avoiding the conflict in the first place. Could the student have expressed herself in another way? Could she have transferred to a school with a more permissive dress code? Could the school have ensured a conducive environment without banning the flag? Whoever could have avoided the conflict more easily would lose.

This is a simple example, but the principle applies the same way in real, controversial cases like Masterpiece Cakeshop, Our Lady of Guadalupe School, Fisher, and Janus.7.Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018) (on discrimination and religion); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (same); Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016) (on affirmative action); Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) (on speech).Show More We will examine these cases and others below.

Applying the conflict-avoidance principle has several advantages. For one thing, it requires courts to decide cases instead of deflecting or delaying judgment.8.Cf. Bickel, supra note 4, at 71 (approving Justice Brandeis’s statement that “[t]he most important thing we do . . . is not doing” and observing that Brandeis “had in mind all the techniques . . . for staying the Court’s hand”).Show More Second, and more important, applying the conflict-avoidance principle requires courts to decide cases by looking to relatively concrete facts and considerations, rather than to abstract political values. Such an approach not only plays to courts’ institutional strengths; it may also produce a pattern of decisions that vindicate the relevant values where they are needed most. That, at least, is the theory of the common law.9.Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883, 883 (2006) (“Treating the resolution of concrete disputes as the preferred context in which to make law . . . is the hallmark of the common law approach.”).Show More As Oliver Wendell Holmes famously said, “[i]t is the merit of the common law that it decides the case first and determines the principle afterwards.”10 10.Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1, 1 (1870) (unsigned article by Oliver Wendell Holmes).Show More

Finally, the conflict-avoidance principle encourages parties to avoid the sorts of conflicts that produce hard cases. Deciding such cases imposes real costs. In addition to financial costs, such cases can undercut the legitimacy of courts as judicial institutions, especially when the political stakes are high.11 11.Precisely that concern underlies the Supreme Court’s practice of treating some politically charged issues as “political questions,” incapable of impartial judicial resolution. See Baker v. Carr, 369 U.S. 186, 217 (1962) (stating that cases lacking “judicially discoverable and manageable standards” or requiring a “policy determination of a kind clearly for nonjudicial discretion” involve political questions).Show More Furthermore, deciding hard cases can lead to errors in the sense that judges do not know the “correct” answer (if they did, the case would not be hard). We think reducing the incidence of hard cases is itself a benefit.12 12.We relax the assumption that deciding hard cases imposes more costs than benefits. See infra Part V.Show More

The conflict-avoidance principle has roots in private and public law. It relates to least cost avoidance, which Guido Calabresi identified and developed in tort law.13 13.Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 135 (1970) (advocating placing liability on “those acts or activities . . . which could avoid the accident costs most cheaply”).Show More It also resonates with various constitutional doctrines—such as time, place, and manner doctrines in First Amendment law—that inquire into the alternative courses of action available to the parties to a dispute.14 14.See infra Part IV.Show More Also, some scholars have advanced proposals that sound in cost avoidance.15 15.The clearest example would appear to come from Professor Tang, who has two papers in draft form. See Aaron Tang, The Costs of Supreme Court Decisions: Towards a Best Cost-Avoider Theory of Constitutional Law (Sept. 27, 2019) (unpublished manuscript), [­WW] [hereinafter Tang, Cost-Avoider]; Aaron Tang, Constitutional Law After Mazars, Vance, & June Medical: The Case for Harm-Avoider Constitutionalism, 109 Calif. L. Rev. (forthcoming 2021) (on file with authors) [hereinafter Tang, Harm-Avoider]. Professor Tang’s work and ours, which developed simultaneously and independently, are quite different. In brief, we aim to minimize conflicts by placing the onus on the party who could have avoided the dispute at lowest cost, whereas Professor Tang aims to minimize the “costs” of judicial decisions by placing the onus on the group that could bear the loss most easily. See infra note 46. Professor Tang’s work relates more closely to interest balancing, covering, or mitigation (i.e., bearing loss after the fact) than to a conventional understanding of avoidance (preventing the loss from occurring).For other scholarship that sounds in conflict avoidance, see, for example, Douglas Laycock, The Broader Implications of Masterpiece Cakeshop, 2019 BYU L. Rev. 167, 193 (arguing that free exercise claims by service providers should not prevail over non-discrimination claims by LGBT customers in communities where “discrimination is still widespread”); J.H. Verkerke, Is the ADA Efficient?, 50 UCLA L. Rev. 903, 941 (2003) (applying least cost avoidance to disability law in the workplace); Robert D. Cooter, The Strategic Constitution 129–32 (2000) (connecting rights to mobility costs); Frank I. Michelman, Pollution as a Tort: A Non-Accidental Perspective on Calabresi’s Costs, 80 Yale L.J. 647, 666–86 (1971) (book review) (applying least cost avoidance to pollution).We note that conflict avoidance can be seen as a distinct kind of “minimalist” theory of adjudication. See, e.g., Cass Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353, 355–56 (2006). Minimalist theories direct judges to concentrate on the facts of the case. See id. at 376 (describing as non-minimalist an approach that is “not limited to the facts of particular cases”). Conflict avoidance directs judges to focus on a particular subset of facts, namely on who could have avoided the conflict more easily.Finally, we note that our argument is consistent with a broader, emerging approach to constitutional law. See generally Robert D. Cooter & Michael D. Gilbert, Constitutional Law and Economics, in Research Methods in Constitutional Law: A Handbook (Malcolm Langford & David S. Law eds., forthcoming 2021) (discussing the emergence of economic theory as applied to constitutional law).Show More Thus, we do not offer a radically new approach to constitutional adjudication. Rather, we collect strands of reasoning that already permeate law and legal scholarship and show how, once systematized, they yield a promising and innovative approach to hard cases.

Why hasn’t anyone systematized these ideas before? Why haven’t judges and scholars, many of whom are familiar with least cost avoidance, already applied these ideas to constitutional law? Here is one explanation. Constitutional adjudication often proceeds “top-down.”16 16.Richard A. Posner, Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights, 59 U. Chi. L. Rev. 433, 433 (1992) (defining top-down reasoning as when “the judge or other legal analyst invents or adopts a theory about an area of law—perhaps about all law—and uses it to organize, criticize, accept or reject, explain or explain away, distinguish or amplify the existing decisions to make them conform to the theory and generate an outcome in each new case as it arises that will be consistent with the theory”).Show More The constitutional principles at stake loom large, sweeping away particular case facts. In contrast, least cost avoidance proceeds in a “bottom-up,” context-sensitive fashion.17 17.For an analysis of the formal difference between bottom-up and top-down reasoning, see Charles L. Barzun, Justice Souter’s Common Law, 104 Va. L. Rev. 655, 708–13 (2018) (explaining that, whereas under top-down reasoning, courts apply a fixed major premise (or rule) to the minor premise (or facts) in order to deduce a conclusion, with bottom-up forms of reasoning, the judge aims to let the facts of the case themselves be the guide to the proper outcome).Show More Courts concentrate on the facts (who could have avoided the crash more easily?), rather than on how to best apply the relevant legal principles. Applying least cost avoidance to the Constitution requires taking a bottom-up approach to a subject dominated by top-down reasoning.18 18.Of course, our approach is top-down in the sense that it involves applying the conflict-avoidance principle to many different cases. But the point is that it is a meta-principle that directs courts to focus on the sort of factual nuances that bottom-up approaches consider critical.Show More

Gesturing at least cost avoidance and “bottom-up” reasoning is easy. The hard part is translating it to constitutional law. We take the main contribution of our project to lie in showing what the translation requires.

The conflict-avoidance principle is not a panacea; nor does it claim “value-neutrality.” But it does offer a fresh way of thinking about how to resolve hard cases. Rather than seeing constitutional conflicts as brute clashes of values—liberty vs. equality, positive liberty vs. negative liberty, substantive equality vs. formal equality—courts might make more progress by looking at the concrete difference that vindicating those values would have made in parties’ actual lives. The goal is to see what work rights claims are doing in social and political life.

We develop our argument in five Parts. Part I clarifies the scope of the principle: we confine its use to hard cases, where “hard cases” has a specific meaning that we will explain. Part II briefly reviews least cost avoidance in private law, drawing out a key distinction between avoiding costs and bearing them. Part III operationalizes the conflict-avoidance principle by developing a doctrinal test for its application. Part IV applies the test to real cases, including recent, controversial cases before the Supreme Court. In Part V, we respond to various objections. The Conclusion develops a broader point. Although the conflict-avoidance principle requires no special commitment to private ordering or negative liberty, it does illuminate a connection between markets, rights, and State power.

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Conflict Avoidance in Constitutional Law

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