The Liberal Commons
Hanoch Dagan and Michael A. Heller
Must we choose between the benefits of cooperative use of scarce resources and our liberal commitments to autonomy and exit? No. Well-tailored law can mediate between community and liberty, between commons and private property. Our theory of the liberal commons provides a framework to reconcile these seemingly contradictory moral imperatives and analytic categories. In our definition, an institution succeeds as a liberal commons when it enables a limited group of people to capture the economic and social benefits from cooperation, while also ensuring autonomy to individuals through a secure right to exit. This Article shows how current theories and categories obscure the most difficult tradeoffs in managing commons resources; then details our liberal commons model comprising the decisionmaking spheres of individual dominion, democratic self-governance, and cooperation-enhancing exit; and finally presents a case study to show how our approach can enrich legal and social inquiry.

A Liberal Theory of Social Welfare: Fairness, Utility, and the Pareto Principle
Howard F. Chang
Amartya Sen shows how liberal rights can produce outcomes that everyone would prefer to avoid, thereby violating the Pareto principle. Similarly, Louis Kaplow and Steven Shavell identify potential conflicts between the Pareto principle and notions of "fairness," which give weight to considerations other than the overall utility level of each individual. Whereas Sen claims that the conflict he identifies shows the unacceptability of the Pareto principle as a universal rule, Kaplow and Shavell claim that the conflict they identify suggests a critique of all fairness notions (including liberal rights). I argue in this Article that both claims are based on questionable assumptions. This Article proposes a middle course that I argue resolves the supposed conflicts while remaining faithful to both liberal fairness principles and the Pareto principle. This Article presents two examples of social welfare functions that can incorporate fairness principles and still comply with the Pareto principle.

 

Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?
Michael Stokes Paulsen

May Congress abrogate the judicial policy of stare decisis and direct the Court to decide constitutional cases without according decision-altering weight to its precedents? That is, could Congress require the Court not to follow a precedent that the Court is otherwise persuaded is wrong on the merits? This Article argues that the answer is yes.

Congress has power to pass such a statute pursuant to the Necessary and Proper Clause, as a law carrying into execution the judicial power of Article III. Stare decisis is not a constitutional requirement, but rather a judicial policy judgment. Examination of each of the factors embodied in that judgment shows that it is one appropriate for legislative determination. A statute abrogating stare decisis would not encroach on the "judicial Power" of Article III, because it does not interfere with any exclusive constitutional prerogative of the judiciary. The statute would neither prescribe outcomes nor invalidate final judgments. It would merely require courts to decide cases on the basis of the judges' best understanding of the Constitution. Stare decisis is much like other "common law" judicial policies that Congress may alter by statute, such as the prudential standing limitations; rules of practice, procedure, and evidence; res judicata and recognition of judgments; and the availability of equitable remedies.

A statute abrogating stare decisis might make a difference to the outcome of cases like Planned Parenthood v. Casey, in which the Court reaffirmed the constitutional right to abortion. If the Justices can be taken at their word, Casey rests almost entirely on the doctrine of stare decisis rather than on the merits. Taking Casey seriously on its own terms, a statute abrogating stare decisis in substantive-due-process cases should lead to a judicial decision overruling Roe v. Wade.