Balancing

by Al Katz

Al Katz is a Professor of Law, State University of New York at Buffalo, Faculty of Law and Jurisprudence. This paper originally appeared as a Buffalo Critical Legal Studies Monograph, 1983. This article is the product of the Balancing Seminar at Buffalo, 1978-1982, whose members included: Kathleen McDermott, Elizabeth Mensch, Richard Milan, Dennis Patterson, Melanie Pierson, Rochelle Reback, Judith Romanowski, Lee Smith, John Troll, William Bozzuffi, Betsy Broder, David Bryan, William Clauss, Peter Diamond, Herbert Eisenberg, Alan Freeman, Philip Halpern, Jacob Hyman, Joseph Kelemen, Gene Krauss, Virginia Leary, Stephen Wieczorek, Gary Wojtan, John Ziegler.

"The coalescence of a research paradigm creates the possibility of an accumulation of knowledge, and thus the phenomenon of scholarly progress. What is less often recognized, for the human sciences at least, is that any consolidation of a paradigm depends on the exclusion, or relegation to the status of 'art', of those elements of the changing discipline which call the credentials of the discipline itself into question, those research practices which . . . work at the edges of disorder." James Clifford, On Ethnographic Surrealism, 23 Comparative Study of Society and History 539, 554 (1981).

The Seminar gratefully acknowledges the contribution of visitors: Paul Diesing, Fred Konefsky, Howard Berman, Elizabeth Mensch, Duncan Kennedy.

I. Why the 'Background of Truth' 18
II. Binary Choices and Middle Positions 21
III. Litigation and the Objectivity of Represented Interests 24
IV. The Opening of Science and Social Interests 26
V. Civil Society and Normativity; Political Society and Representation 27
VI. The Productions of Representation, Expertise and Balancing 31
Notes

III. It is impossible to imagine a viable society truly respecting the great Hegelian division between a civil society marked by an absolute subjectivity of interests and a political society in which the state encloses as its essence an irreducible general interest. At least since the end of the 18th century two great mediating strategies were dispersed throughout liberal society to carry the twin burden of preventing collapse into a chaos of subjectivity and undermining the tyrannical tendency of a unified and general interest. First, the elaboration of relatively objective interests and their distribution into weakly bounded and overlapping categories that would nevertheless function to organize diversity. Second, the penetration of representational relations to the deepest levels of social life in order to resemble and reassemble diversity throughout the structures of family, neighborhood, city, workplace, bureaucracy, political party, protest group, region and so forth. Subjective interests must find their expression in the objective forms of father, worker, woman, farmer, southerner, unemployed, disabled, or investor in order to be represented — to be made a living presence capable of speaking in some other place at some special time when the interest might be heard and respected or ignored and denied. Representation — that mercurial notion breathing life into liberal political society — owes nothing to the extensions and contractions of suffrage but owes everything to the double functioning of objectified interests. Fundamentally, interests in the objective sense are midpoints between diversity and unity: they reduce subjectivity to a finite listing, an assignment of traits, strengths, biases and passions. Representation is grounded in this transformation of an absolutely subjective civil society into a series of determined and specified relations. This function of objectified interests might be called, with some plausibility, communicating from civil society to political society. But there is also a reverse flow, a movement that shapes and conditions, that articulates upon diverse interests a specific organization and a certain manner of speaking if it expects to be heard. Because it is an exclusive voice, because it holds a monopoly of political power, representation exerts an immediate pressure on civil society that forces it to extrude only legitimate interests. What come to be understood as interests, recognized interests, or legitimate interests are the consequence of this double movement according to which objectified interests may be represented and representation requires objective interests.

This excursion into the interpenetration and mutual dependence of representation and interest proved fruitful. There could be no question that balancing practice depended heavily upon the identification of interests by someone in some relevant context. Representing client interests was surely one such context, but there was also the investigation of legislative history to lay bare statutory meaning by inference from an intention or purpose to protect or suppress certain interests. The specification of interests was invariably required by arguments addressed to the vindication of constitutional rights; explications, attacks and defenses of controversial matters such as the exclusionary rule, the habeas corpus jurisdiction rule or the void-for-vagueness doctrine were organized around a frequently creative detailing of the interests served and/or undermined by expansion or contraction of application. And virtually all modem contract law teachers, having supped at the table of legal realism, point out to their students that the interest of contracting parties is in performance not a lawsuit. Even garden variety legal literature places interest identification and analysis at the center of balancing practice, as in Gunther's 1973 article praising the skill of Justice Powell as a balancer. Representation seemed critical because of the suspicion that interests were being invented by lawyers and judges to suit the occasion.

Precisely because the truth of specified interests could not be found in the purity of an empiricist fantasy, precisely because a relevant interest could not be identified by interrogating the desire of an individual subject or even an implicated group, the question of an originating source responsible for speaking in the name of objectified interests could not be avoided. Even if it were the client who originally represented an interest to the lawyer, plainly the organization, formulation and presentation of a legitimate interest depended upon the lawyer to represent it as a reality. Nothing required judicial acceptance of such representations, of course, so additional or modified versions of presented interests could easily become central to the balancing operation. Suppose a worker who lost his pension because the company terminated his plan a few months before benefits would have vested in him complains of insufficient disclosure under assertedly applicable regulations of the Securities Exchange Commission, a complaint that requires characterizing the pension as an investment security. Nothing prevents a judge from 'finding' that employees work for wages and are not investors with a security interest. This judgment may certainly be read as an observation about workers' attitude toward labor and its alleged rewards that necessarily rejects the security interest argument as a piece of creative lawyering calculated to give the client a shot at winning an otherwise hopeless lawsuit.

Studying the movement of interests in balancing practice was gloomy and depressing business when following the path neither deepened nor enlightened but merely lead back into hoary issues of positive jurisprudence — the law-fact distinction counted among such debris. Where, for example, a defendant claims that the evidence against him was unconstitutionally seized from premises owned, occupied or otherwise controlled by another person, the judge may reply that he has no legitimate interest in securing or protecting the privacy of another. This may be read as a statement about the empirical existence of a legitimate, objectified interest (noting, of course, that the expectations or desires of this particular defendant are immaterial); it may be read as a determination of substantive Fourth Amendment law; it may specify a procedural mechanics reflecting institutional considerations and have no bearing on social interests or the law of search and seizure. Such instances suggest that expecting interest recognition and analysis to provide legality with an incremental rationality is rather foolish.

Depressing though it might be, following the movement of interest analysis back into the law-fact dichotomy locates it within a traditional discourse and thus clothes it with a dubious legitimacy — dubious, that is, relative to alternative explications with a more radical tendency to undermine confidence in the rule of law. Objectified interests may be little more than subjective values packaged to permit their attribution to actual people under specified circumstances, or universalized and attributed to the state. Thus an interest in health and life may be attributed to the state when it opposes an abortion rights claim but not when it would support the receipt of payments by welfare claimants or secure decent treatment to prisoners. A judge's values may require maintaining the distinction between labor and capital by rejecting any suggestion that capital is little more than stored labor. This value preference will appear in his opinion as an interest in income from wages attributed to workers generally and not as the subjective desire of this worker or group of workers. On the other hand, any suggestion that a judge who is himself an active investor should be disqualified for conflict of interest would be rejected unless he was interested in this particular corporate litigant.

The structure of adversity augments the suspicion that interest analysis is a disingenuous vehicle for the introduction of values. Naive students may suppose that the injunction to take account of all relevant interests requires specification of those supporting the opposing claim as well as those cutting against it. In the previously mentioned search and seizure case, for example, a compelling interest in the protection of civil liberties might plausibly be attributed to the state since the latter is primarily responsible for supervising the behavior of its agents. Combining this interest with that of the defendant claiming the evidence illegally seized is being used against him might well produce a balanced decision in his favor. But the premise of adversity appears to entail a truncated range of interest identification unless the interests can be normally distributed among adverse parties. The legal literature surrounding the exclusionary rule is largely chaotic due to its inability to specify or justify the distribution of interests among possible representatives. If the defendant has a weak interest in deterring illegal enforcement activity, particularly in habeas corpus, the state may have a powerful if not compelling one. But the general assumption seems to be that the interest in deterrence rises and falls with defendant's stature as a representative of it; the possibility of selecting another representative for this interest is not considered a viable option within the context.

Following the movement of interest identification and analysis with these few examples yields a number of fairly basic propositions: interest analysis may simply reintroduce an unenlightened revision of the law-fact problematic into contemporary legal discourse; it may also provide an excellent vehicle for the injection of otherwise illegitimate subjective value preferences disguised as attributed objectified interests; the impact or relevance of an interest may be a function of the representative selected to articulate and defend it; judgments respecting the representation of interests are not merely passive reflectors of an already determined social truth but contribute to the development and shaping of concrete social relations. Putting this last point in other terms, given the legal statements described above, what must workers do to have savings understood as investments in their future security; what must citizens do to create an interest in precluding the illegal invasion of premises not personally owned or occupied? To the precise extent nothing can be done within concrete social relations to create, modify or destroy interests, they must be understood as merely the phantasms of a warped and dissembling professional 'methodology'.