VVaallppaarraaiissoo UUnniivveerrssiittyy LLaaww RReevviieeww Volume 18 pp.741-940 Number 4 Summer 1984 Summer 1984 PPuubblliicc PPoolliiccyy:: CCoonnttrraacctt,, AAbboorrttiioonn,, aanndd tthhee CCIIAA Paul H. Brietzke Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Paul H. Brietzke, Public Policy: Contract, Abortion, and the CIA, 18 Val. U. L. Rev. 741 (1984). Available at: https://scholar.valpo.edu/vulr/vol18/iss4/2 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Brietzke: Public Policy: Contract, Abortion, and the CIA PUBLIC POLICY: CONTRACT, ABORTION, AND THE CIA* PAUL H. BRIETZKE** TABLE OF CONTENTS I. THE POLICY PROCESS ............................... 745 A. Conflict and Confusion .......................... 747 B. The (Il)logic of the False Dichotomy .............. 752 II. CONTRACT: ESCAPING BETWEEN THE HORNS OF THE FALSE D ICHOTOM Y ........................................ 767 A. An Illustration of Circular Reasoning ............ 768 B. Freedom of Contract and its Derogation .......... 774 III. THE CIA: FINDING THE HORNS OF THE FALSE DICHOTOMY 785 A. Information and Secrecy ........................ 793 B. CIA Policies as Their Own Cause ................ 802 C. Exploring the False Dichotomy ................. 813 D. Failures in Accountability ....................... 832 E. Future CIA Accountability: A Proposal ........... 852 IV. ABORTION: SPREADING THE HORNS OF THE FALSE D ICHOTOM Y . ....................................... 861 A. Roe v. Wade as the Policy of the Second-Best ..... 863 B. Roe's Unwanted Progeny ........................ 875 C. Mothers Young and Poor ........................ 889 D. Changing the Terms of the Abortion Debate ...... 895 V. CONCLUSIONS AND PROPOSALS FOR REFORM ........... 906 A. W eak State, Strong State ....................... 911 B. Clearing the Policy Streams ..................... 918 C. Securing a Policy Competence ................... 923 D. The Dialectics of Law and Policy ................ 929 E. Policy Leadership .............................. 934 *Sections I & II of this article were delivered as my Inaugural Lecture, at the Valparaiso University School of Law on 25 April 1983. Invaluable comments by Paul Cox, Jack Hiller, Ken Klein, Rosalie Levinson, Peter Mutharika, John Potts, and Richard Stith are acknowledged gratefully, as are the creative investigations by my research assistants, George Terrell and Tim Thorlton. Errors remain my responsibility. **Professor of Law, Valparaiso University. Produced by The Berkeley Electronic Press, 1984 Valparaiso University Law Review, Vol. 18, No. 4 [1984], Art. 2 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 18 Public policy is "what governments do, why they do it, and what difference it makes."' It also gives rise to the most vague, fragmented, and inconsistent notions at work in our law today What public policy means and does can only be described at a sweepingly general level,3 1. T. DYE. POLICY ANALYSIS 1 (1976). 2. Public policy "is a catch phrase elusive of meaning without reference to the context in which it is used." Sterk, Enforceability of Agreements to Arbitrate, 2 Cardozo L. REV. 481, 483 (1981). See A. ETZIONI. SOCIAL PROBLEMS. 25-26 (1976); infra note 3. At the Brookings Institute, the word "policy" was repeated as often as a blind man swings a cane before him. Yet, wherever you searched for government policy, you discovered there was none. In science, education, welfare, nutrition, energy, health, and social services, the situation was always the same; there was no con- sistent comprehensive policy, but instead, many inconsistent, spotty policies. Each arena had its own constituencies, programs, and statutes .... Orlans, An Anthropologist Without a Tribe, 50 AM. SCHOLAR 465, 474-75 (1981). See G. SAWER, OMBUDSMEN 18 (2d ed. 1968) ("We have all, Micawber-like, been waiting for something to turn up"); infra note 28 and accompanying text. The policy arena reverberates with Saul Bellow's Great Noise: the noise of technology, money, adver- tising, miseducation, and the "terrible excitement and distraction generated by the crises of modern life . . . . Contributing to it are real and unreal issues, ideologies, rationalizations, errors, delusions, nonsituations that look real, nonquestions demand- ing consideration, opinions, analyses in the press, on the air, expertise, inside dope, a factional disagreement, official rhetoric .. " Savaging the Schools, NEW REPUBLIC, May 5, 1982, p. 7, at p. 9 (quoting Bellow). See A. ETZIONI, at 25-26 (quoted infra note 3). 3. Policies are "tentative theories-about the nature of social processes and the working of social institutions .... " Majone, The Feasibility of Social Policies, 6 POL'Y SCI. 49, 50 (1975). See A. ETZIONI, supra note 2, at 60. Some groups and individuals- particularly those nominally private "persons" that are large corporations-do, of course, exert considerable influence on public policy. See, e.g., C. LINDBLOM. THE POLICYMAKING PROCESS 72-89 (2d ed. 1980). Policy is made when a decision is meant to govern recurring situations, and where a concern with resolving competing values is expressed. Mar- cus, Synthesis-Contributions of Economics and the Law to Administration, in COMPARATIVE ADMINISTRATIVE THEORY 336, 338 (P. LeBreton, ed. 1968). All policies "are regulatory in nature. Whether they are individually described as promotional, facilitative, restrictive, directive, mandatory, or whatever, their broad purpose is to induce people to conduct themselves in accord with governmentally prescribed goals and standards." Anderson, Public Economic Policy and the Problem of Compliance, in LAW AND CHANGE IN MODERN AMERICA 110 (J. and M. Grossman, eds. 1971). Inevitably, lawyers have also tried their hand at defining public policy. While it plays a larger role in French law (as, e.g., bonnes moeurs, ordre public), some find public policy to be "peculiarly English," the "particular genius" of the common law. D. LLOYD, PUBLIC POLICY: A COMPARATIVE STUDY IN ENGLISH AND FRENCH LAW 5 (1953) (citing Gutteridge and Ren6 David). A far less sanguine view is offered by Baron Parke, in Egerton v. Earl Brownlow, 4 H.L. Cas. 1, 123 (1853): "Public policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights. ... This contrasts sharply with the view of public policy held by one of its chief American architects, Justice Cardozo: policy is synonymous with "social welfare," the "good of the collective body" achieved through an expediency or prudence, and an adherence to the community mores found in religion, ethics, and https://scholar.valpo.edu/vulr/vol18/iss4/2 Brietzke: Public Policy: Contract, Abortion, and the CIA 1984] PUBLIC POLICY yet almost everyone concludes that particular policies have failed us miserably since at least World War II. Our policy landscape is "lit- tered with [such] multi-million dollar wrecks"4 as the Army's new Abrams battletank and the War on Poverty. In the words of Eugene Meehan, "the United States has provided . . . an appalling example of the bankruptcy of human imagination in the presence of great material prosperity and . . . some of the strongest evidence available in history for assuming an inability to handle wealth with foresight, intelligence, and humaneness. '5 This is a damning yet fair indictment of the fallout from New Deal and Great Society reforms. An explo- sion in statutory reform after World War II prompted a revolution of rising expectations in governments' ability to solve our problems. However, a deep disillusion set in during the 1970's, when people realized that a problem cannot be resolved simply by throwing money at it and by enacting any old law.' The media give examples7 daily of the policy stupidity evident in the state of our schools, prisons, mental institutions, and many other administrative arms of government. society's sense of justice. Cardozo, The Nature of the Judicial Process, in SELECTED WRITINGS OF BENJAMIN NATHAN CORDOZO 107, 135 (M. Hall, ed. 1947). See also Symmons, The Function and Effect of Public Policy in Contemporary Common Law, 51 AUSTL. L.J. 185, 198 (1977) (quoting 0. HOLMES, THE COMMON LAW (1881)): "The very considera- tions which the courts rarely mention and always with an apology, are the secret root from which the law draws all the juices of life. . . . Every important principle which is developed by litigation is .. .the result of more or less definitely understood views of public policy." 4. A. ETZIONI, supra note 2, at 61. But see id. at 25-26 (quoting Ben Wattenberg's distinctly minority view): The policy correctives needed are more of the same, and "the major danger today is only that we will be catch-phrased and crisis-mongered to death before all is done." 5. E. MEEHAN, REASONED ARGUMENT IN SOCIAL SCIENCE 190 (1981). As in Viet- nam, we "stagger through history like a drunk putting one disjointed incremental foot after another." A. ETZIONI. supra note 2, at 87-88 (quoting Kenneth Boulding). See A. WILDAVSKY, SPEAKING TRUTH TO POWER: THE ART AND CRAFT OF POLICY ANALYSIS 4 (1979) (quoted infra note 28 and accompanying text); Beer, The Idea of the Nation, NEW REPUBLIC, July 19 and 26, 1982, 23, at 29 (emphasis supplied): "Considering where we started from some thirty years ago, our progress has been substantial. Still, few will assert that our statecraft-from poverty programs to affirmative action to busing- has been adequate to the objective. This problem still awaits its Alexander Hamilton." See infra note 29 and accompanying text. 6. See T. DYE, supra note 1, at 95; R. EYESTONE, FROM SOCIAL ISSUES TO PUBLIC POLICY 30 (1978) (just as there are business cycles, there seem to be cycles of governmental - including judicial - activism and quietism, or optimism and pessimism, based on shifting expectations about governments' abilities and shifting perceptions of social needs); E. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUES 267-68 (1973) (dashing of a "relativistic" political logic and of hopes raised by Kennedy, and emergence of public perceptions Produced by The Berkeley Electronic Press, 1984 Valparaiso University Law Review, Vol. 18, No. 4 [1984], Art. 2 744 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 18 The cumulative effects of so many policy blunders are stagna- tion, paralysis, and a growing public distrust of government and of its claims to expertise Some lawyers, politicians, and policy analysts are busy trying to figure out what exactly is going wrong. This arti- cle is a modest contribution to their efforts, an examination of how some of these policy blunders have come about. I will argue that decisionmakers pose policy alternatives in an unnecessarily polariz- ed, black-and-white fashion. There is far too little clear and hard think- ing by lawyers, other social scientists, politicians, and political pressure groups. Much of what passes for their thinking is a rather simple- of an "evergrowing governmental mendacity"); C. WEISS AND M. BUCUVALAS, SOCIAL SCIENCE RESEARCH AND DECISIONMAKING 6 (1980); id. (public disappointment with social scientists, especially economists, and their policies set in when the economic bubble bursts); Beckman, Policy Analysis for the Congress, 37 PuB. AD. REV. 237, 243 (1977) ("The recognition that good intentions have often fallen prey to messy problems of implemen- tation, and at an enormous cost, has increased the level of skepticism within Con- gress. ... ); Schick, Beyond Analysis, 37 PUB. AD. REV. 258 (1977). See also Hurst, The Functions of the Courts in the United States, 15 L. AND SOC. REV. 401, 453 (1980-81): since the innovative years of 1905-15, statutory law has loomed large "by direct impact and by providing the base and framework within which executive and administrative agen- cies added substance to public policy." 7. President Carter's land Nixon's, Ford's and Reagan's] energy "policies" offer pointed examples of the almost infinite number of things that can go wrong in the absence of a creative policy leadership, See, e.g., R. EYESTONE, supra note 6, at 150-52; Carron, Congress and Energy: A Need for Policy Analysis and More, 2 POL'Y ANAL. 283 (1976); Light, The Carter Administration'sN ational Energy Plan,7 POL'Y STUD. J. 68 (1978). See, e.g., B. CASPER AND P. WELLSTONE, POWERLINE (1981) (decisions about powerline routes through Minnesota stupidly and cruelly ignored farmer needs and desires); A. WILDAVSKY, supra note 5, at 5 (health policies have us doing better and feel- ing worse, and, being neurotic about health, we insist on making government psychotic); id. at 112 (quoting cartoon caption) ("Warning: fools in government want you to quit smoking while they subsidize tobacco."). See also Gaylin, Skinner Redux, HARPER'S, Oct., 1973, 48, at 54; Hoffman, Book Review, NEW REPUBLIC, Mar. 3, 1982, 37 (discussing Jean Kirkpatrick's Commentary essay on totalitarian versus authoritarian states and the State Department's White Paper on El Salvador): What is most depressing is our apparent inability to learn. We went through it in China in the 1940's, in Vietnam in the 1960's, and yet, like Orwell's estimable horse in Animal Farm, we act as if previous disasters resulted not from flawed premises, but from a mere failure to try hard enough. 8. T. LowI, THE END OF LIBERALISM xii, 71 (1969); Auerbach, The Relation of Legal Systems to Social Change 1980 WIs. L. REV. 1227, 1333-36. See J. FREEDMAN, CRISIS AND LEGITIMACY: THE ADMINISTRATIVE PROCESS AND AMERICAN GOVERNMENT 262 (1978): "Public skepticism of administrative expertise is part of a larger loss of faith in many traditional sources of public and social authority .. .[and] a larger pattern of social uneasiness over the impact . . . of large organizations, within both the public and private sectors." This is a common problem in many countries, of course: see J. HABER- MAS, LEGITIMATION CRISIS (1976). See also infra notes 18, 255, and accompanying text. https://scholar.valpo.edu/vulr/vol18/iss4/2 Brietzke: Public Policy: Contract, Abortion, and the CIA 1984] PUBLIC POLICY minded classifying-a pigeonholing, really. Faced with a square peg and a round hole, theorists and decisionmakers alike are too quick to reach for a penknife and to whittle off the sharp edges, rather than trouble to ponder the nature of roundness and squareness. This process usually involves their lazy acceptance of a small number of legal categories, frequently two categories at a time: contract versus the total absence of contract, for example, or the "right" to an abor- tion versus the "right" to life. Such categories unnecessarily and prematurely limit the search for policy alternatives; the most rele- vant, realistic policy frequently escapes notice because it occupies a gray area, an uneasy middle ground in what may be termed a false dichotomy of black-and-white policy options.' After an overview of the policy process, I will expand on these arguments as they concern contract law, the CIA, and abortion. These sections, II-IV, are lengthy, more or less self-contained studies of significant policy controversies. Together they illustrate the major weaknesses and defects in policy processes. These are discussed in the "Conclusion," along with suggestions for reform. I. THE POLICY PROCESS Theorists, decisionmakers, and special interest groups meet, for what we hope will be the pursuit of the public interest, in the arena that can be termed the policy process. The arena includes traditional legal processes, but it is larger, more amorphous,"0 and sometimes less 9. See supra notes 1-8 and accompanying text. 10. A policy "system," relatively fixed patterns of interaction in the arena of government, exists apart from the "environment" and responds to environmental stimuli. Ripley, et al., Policy Making: A Conceptual Scheme, AM. POL. Q. 3, 6 (1973); id. at 8 (environment defined). See T. DYE, supra note 1, at 20: "The smoke-filled room where patronage and pork were dispensed has been replaced with the talk-filled room, where rhetoric and image are dispensed." See also Hurst, supra note 6; Stedman, Political Parties, Interest Groups, and Public Policy, in THE POLICY VACUUM 135, 164 (R. Spadaro, ed. 1975) (a rather extreme view) (what used to be called public law is now policy politics). But see E. MEEHAN, supra note 5, at 195: There is no one place where all rele- vant policy factors can be brought together and analyzed rationally. The first descrip- tion of this amorphous system seems to be de Tocqueville's (quoted by A. MELONE, LAWYERS, PUBLIC POLICY AND INTEREST GROUP POLITICS 3 (1979)): "Scarcely any political question arises .. .that is not resolved, sooner or later, into a judicial question. . • .The language of the law becomes ... a vulgar tongue... [and] gradually penetrates ... into the bosom of society .. " Driven by a simple-minded conception of power, the legal realists sought to transform all of law into policy. This attempt at a "legal nihilism" failed when a New Deal reformism faded. Tushnet, Post-Realist Legal Scholarship 1980 WiS. L. REV. 1383, 1384-87, More recent formulations, such as Frederick Beutel's Experimental Jurisprudence, have similarly registered few successes: see Tribe, Policy Science: Analysis or Ideology, 2 PHIL. AND PUB. AFF. 66, 82 (1972) (quoted infra note 25). Produced by The Berkeley Electronic Press, 1984 Valparaiso University Law Review, Vol. 18, No. 4 [1984], Art. 2 746 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 18 savory than conventional systems of legal rules. Two analysts" have, in fact, compared public policy to the lowly hot dog: the contents of both can be adjusted to suit the tastes and budgets of producers and consumers, and the acceptability of public policies and hot dogs alike requires that the consumer remain ignorant of their precise content and of the ways in which they are made. Policies nevertheless set the "tone" for our legal system by providing growth points for future legal development.12 This tone certainly reflects political directions- even the Supreme Court is said to follow the election returns-but lawmakers have also looked to scientists and social scientists (rather than to philosophers or historians) for policy assistance. The hope has been to "use our [cumulative] societal knowledge to lick our social problems in the same way we conquered polio, tuberculosis, and malaria."'3 Social scientists should be able to identify and measure social problems and the costs and benefits of alternative solutions, and then to help society to steer a safe course through conflicting goals and values, and between skepticism and dogma." Unfortunately, the reality of social science contributions to policymaking falls short of this promise. A glut of information yields little social science knowledge that is reliable and even less of a capacity to apply this knowledge systematically. Striving to be at the center of things, policy analysis has no conceptual or political center of its own.5 Assertions that social science analyses are scientific- rigorous, apolitical, and otherwise value-neutral-are seldom borne out 11. See A MELTSNER. POLICY ANALYSTS IN THE BUREAUCRACY 72 (1976); A. WILDAVSKY, supra note 5, at 387 (observation tentatively attributed to a famous sausage- fancier, Chancellor Birmarck). 12. Schaefer, Precedent and Policy, 34 U. CHI. L. REV. 3, 4 (1967) (quoting Car- dozo on the judicial system, but comment applicable to policy generally). See Sym- mons, supra note 3 (quoted supra note 3). 13. A. ETZIONI. supra, note 2, at 49. See, e.g. Brown v. Board of Educ., 347 U.S. 483 (1954); T. DYE, supra note 1, at 3. This hope reflects the fact that the origins of policy "sciences" are the great successes registered during World War II by British and American physical scientists acting outside their chosen fields. Tribe, supra note 10, at 67. People are most reluctant to regard any social task as unmanageable. Institu- tions are man-made and, seemingly, they can be manipulated to achieve any result. Majone, supra note 2, at 50. The fact that we are "free to choose" (a phrase arguably trivialized by the Friedmans) is the essence of policy. Denial of that freedom amounts to a denial of responsibility, a willingness to allow things simply to happen. E. SCHUMACHER. SMALL IS BEAUTIFUL 191-93 (1974). 14. T. DYE, supra note 1, at 96 (citing Alice Rivlin); A. WILDAVSKY, supra note 5, at 19. See Dror, Law as a Tool of Directed Social Change, in LAW AND SOCIAL CHANGE 75, 76-79 (S. Nagel, ed. 1970); infra notes 24-25 and accompanying text. 15. T. DYE, supra note 1, at 96, 107; A. ETZIONI, supra note 2 at 61; E. MEEHAN, supra note 5, at 177; id at 178 (most social science "recommendations deserve to be https://scholar.valpo.edu/vulr/vol18/iss4/2 Brietzke: Public Policy: Contract, Abortion, and the CIA 19841 PUBLIC POLICY in practice." Different and often contradictory rules for defining a policy problem and its "best" solution are found in law, economics, diplomacy, environmental planning, civil engineering, etc. Many of these criteria are about as neutral as voter literacy tests were in the Old South. For example, violent crime may be viewed as caused by: a coddling of crooks, the inherently evil predisposition of people, racial and ethnic discrimination and the impatience of minorities with the pace of reform, urban disorganization and the disintegration of the family, poor policing, alienation or anomie, incipient revolution, lawlessness at the fringe of a "good" society, or almost any combina- tion of the above.7 Obviously, the policy prescription chosen for deal- ing with crime will depend on which diagnosis is adopted. A policy confusion and drift result when no consensus over diagnosis and treat- ment is achieved among policymakers. A. Conflict and Confusion After the sun set on President Johnson's Great Society, deci- sionmakers came increasingly to distrust policy "experts" such as those found in the CIA. Congress, for example, continues to struggle with its shortcomings almost alone, out of what Representative Mike McCormack terms a sense of "confusion and frustration."'" In energy ignored," given the high "survival capacity of pretentious nonsense"); Schick, supra note 6, at 260. 16. The social scientists' claim to being scientific has been under attack for many years. Much of their doctrine has been found to rest on reasonably (not con- clusively) grounded empirical knowledge, plus professional and personal biases. C. LINDBLOM, supra note 31, at 22. See, e.g., J. SIGLER AND B. BEEDE. THE LEGAL SOURCES OF PUBLIC POLICY 9 (1977); Wolf, Social Science and the Court; The Detroit Schools Case, 42 PUB. INTEREST 102 (1976); infra note 17 and accompanying text. The same can be said of law and lawyers, of course. See A. MELONE. supra note 10, at 4. Policy analysts and lawyers use prescientific, Aristotlean notions of causation. The causal variables are only partly known, and things occur in a sequence of chain reactions with no simple answer to when and how they end. Nevertheless, the Cartesian dream, extrapolated from Newton's, is pursued: all is possible by subduing nature. Abelson, Definition, in 2 ENCYCLOPEDIA OF PHILOSOPHY 314, 316 (P. Edwards, ed. 1967); E. MEEHAN, supra note 4, at 140; A. MILLER, DEMOCRATIC DICTATORSHIP: THE AMERICAN CONSTITUTION OF CON- TROL 158 (1981); A. WILDAVSKY, supra note 5, at 59. 17. See C. LINDBLOM, supra note 3, at 22. It is impossible to define policy prob- lems in an apolitical fashion. Values are fluid in social science (and in law), they affect and are affected by policy decisions. A. ETZIONI, supra note 2, at 84. Different and often contradictory rules for identifying a policy problem, its solution, and evaluations of a solution are to be found in law, economics, diplomacy, environmental planning, civil engineering, etc. Anderson, The Place of Principles in Policy Analysis, 73 AM. POL. SCI. REV. 711, 714 (1979). 18. Quoted in Davidson, Congressional Committees, 2 POL'Y ANAL. 299, 308 (1976) (McCormack refers to energy policies, but comment applicable generally). The Produced by The Berkeley Electronic Press, 1984 Valparaiso University Law Review, Vol. 18, No. 4 [1984], Art. 2 748 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 18 legislation, public works projects, and many other areas, Congress tends to "fly blind," without benefit of rigorous policy analysis, and to rely on the executive, party leaders, and competing special interest groups to keep a policy program consistent. Policy goals are often confused because a program and its aims, if any, are poorly understood by all of the parties concerned. Knowing not what it wants to do, Congress frequently passes the buck to an administrative agency such as the CIA, under broad delegations of power. Many policies wind up in courts eventually, where vague opinions written to build majority coalitions frequently ignore the problems of policy and its implementation.9 An inter-professional backbiting between lawyers and other social scientists is much in evidence in attempts to deal with policy prob- lems. For many social scientists, policy is much too important to be left to the superabundance of lawyers whose analyses are not trustworthy. ° Some lawyers respond with the kinds of criticisms of social scientists I outline. All of this is unfortunate for the policy pro- cess, which is always the first casualty in what are really fratricidal wars between lawyers and other social scientists.21 There are many similarities in the approaches of lawyers and other social scientists, and the differences are or could be made fruitful for policy.22 It is distrust of expertise is fueled by the failures of Great Society programs, especially those concerning space and Vietnam, and, more recently, by defects in energy and economic recovery programs. See Carron, supra note 6, at 293; Davidson, passim; Frye, Congressional Politics and Policy Analysis, 2 POL'Y ANALYSIS 265, 266-67, 270-74 (1976); Light, The Carter Administration'sE nergy Plan, 7 POL'Y STUD. J. 68 (1978); supra note 5; infra note 254 and accompanying text. 19. See G. EDWARDS, IMPLEMENTING PUBLIC POLICY 39-40 (1980); Thurber, Con- gressional Budget Reform and New Demands for Policy Analysis, 1 POL'Y STUD. REV. AN. 404, 416-417 (S. Nagel, ed. 1977). E.g., the House Public Works Committee is no sim- ple, porkbarrel operation; a modicum of loose policy analysis is utilized. Army Corps of Engineers' cost/benefit analyses are adopted automatically, unless these are challenged by railroads (which oppose river navigation) or utilities (which oppose public power generation). Decisions are not based on the most favorable of cost/benefit ratios, but on whether the favored program can be plausibly portrayed as having a 1:1 ratio over time. Murphy, Political Parties and the Porkbarrel, 68 AM. POL. SCI. REV. 169, 181-83 (1974). See. e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982). 20. E.g., J. SIGLER AND B. BEEDE, supra note 16, at 5; Mayo and Jones, Legal- Policy Decision Process, 33 GEO. WASH. L. REv. 318, 378 (1964). See A. MELTSNER supra note 11, at 219-20; Beckman, supra note 6 at 243; Carron, supra note 7, at 296; Frye, supra note 18, at 281; Tribe, supra note 10, at 78. 21. J. SIGLER AND B. BEEDE, supra note 16, at xv: conflicts between law and policy studies lead to confusion, frustration and stalemate in devising and implementing policies. 22. As H.L.A. Hart observed in his Inaugural Lecture: In law as elsewhere, we can know and yet not understand. Shadows often https://scholar.valpo.edu/vulr/vol18/iss4/2 Brietzke: Public Policy: Contract, Abortion, and the CIA 1984] PUBLIC POLICY commonly said, for example, that the social scientists' policy goal is efficiency while the lawyers' is that of securing rights or justice. The Chicago School of law and economics, and its critics, have had some success in bridging this gap (or false dichotomy) of rights and effi- ciency, but differences clearly remain. Is this so bad? Are rights always the basis for policy or do we always seek efficient solutions? CIA activities in the Shah's Iran and in Nicaragua today23 suggest that neither efficiency nor rights are sought. What (.an be the objection to a middle ground, a more efficient justice or a more just efficiency, given that either state of affairs is in the public interest?24 obscure our knowledge which not only vary in intensity but are cast by different obstacles to light. These cannot all be removed by the same methods and until the precise character of our perplexity is determined we cannot tell what tools we shall need. H. HART, DEFINITION AND THEORY IN JURISPRUDENCE 1 (1953). See Rorty, Philosophy in America Today, 51 AM. SCHOLAR 183, 192 (1982): The ability to construct a good brief, or conduct a devastating cross- examination, or find relevant precedents is similar to the ability that analytical philosophers think of as distinctively philosophical ... [the ability] to see at a glance inferential relationships between all the members of a bewilderingly large set or propositions. Policy analysis tends to downgrade what ought to be in policy for what is, indicates a concern for the ex post facto explanation . . . .concentrates on specific policies rather than the overall nature of policy, treats policy as the depen- dent variable, essentially bypasses the symbolic for tangible or allocative factors of public policy, and only partially tests feedback linkages. Spadaro, Public Policy and the Political Scientist, in THE POLICY VACUUM 1, 12 (R. Spadaro, et al., eds. 1975). Substitute "law" for "policy" in Spadaro's statement and the characterization remains just as accurate. See E. MEEHAN, supra note 5, at 178-80; M. SHAPIRO, THE SUPREME COURT AND ADMINISTRATIVE AGENCIES 90 (1968) (courts and agencies -and, I would add, lawyers and social scientists-strive "at least to appear to satisfy an unrealistic norm of rationality"); J. SIGLER AND B. BEEDE, supra note 16, at 8; id. at 9 (in Beutel's Experimental Jurisprudence, law should be subject to the same intellectual demands as social science with regard to isolating social problems, identifying law's actual effects, and explaining the reasons for changed behavior); C. WEISS AND J. BUCHVALIS, supra note 6, at 263-65, 268; Orlans, supra note 2 (quoted supra note 2). 23. See infra notes 130, 156, 164 and accompanying text. 24. See, e.g., L. FRIEDMAN. THE LEGAL SYSTEM: A SOCIAL SCIENCE PERSPECTIVE 63-64 (1975); J. SHKLAR, LEGALISM 113-15 (1964) (justice only one virtue among many; it comes into play in only two specific instances, yet it is the epitome of legal morality); Murphy, Liberalism and Political Society, 26 AM. J. OF JURISPRUDENCE 125, 130-32 (1981) (Dworkin's notion that rights prevail over policy reflects liberals' atomistic conception of social life, in which policies are not taken seriously); Stedman, supra note 10 (discussed supra note 10); Tribe, supra note 10, at 82 (quoted infra note 25). Compare Michelman, Norms and Normativity in the Economic Theory of Law, 62 MINN. L. REV. 1015, passim (1978) (efficiency should be a tie-breaker, used when other policy considerations are satisfied or evenly balanced) with Posner, Some Uses and Abuses of Economics in Law, Produced by The Berkeley Electronic Press, 1984