The Only Fair Way

AS the torrid electoral dispute between Bush and Gore works its way to its conclusion, anxious citizens have been forced to reflect on the proper balance between a just substantive law and the workable procedures needed to implement it. The refrain of the Gore forces employs the rhetoric of aspirations: Let justice be done; let every vote count; let the true intention of each voter be determined. The Bush camp offers the opposite approach: Let consistent rules govern election outcomes; let simple tests determine what counts as a vote; and let the principle of finality govern. The time is therefore propitious to step back from the present political brawl to ask how a well-run legal system routinely reconciles these twin demands. Aspirations would always prevail if the operation of a legal system were costless and error-free; but it obviously is not. How, therefore, must we temper these aspirations—and minimize the administrative imperfections at the same time? The oft-neglected virtues of process and formalism must come into their own.

Mr. Epstein is a professor of law at the University of Chicago.

About the Author

Richard A. Epstein

Richard A. Epstein is the Laurence A. Tisch Professor of Law at NYU School of Law, the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago. His many books include The Dubious Morality of Modern Administrative Law.

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AS the torrid electoral dispute between Bush and Gore works its way to its conclusion, anxious citizens have been forced to reflect on the proper balance between a just substantive law and the workable procedures needed to implement it. The refrain of the Gore forces employs the rhetoric of aspirations: Let justice be done; let every vote count; let the true intention of each voter be determined. The Bush camp offers the opposite approach: Let consistent rules govern election outcomes; let simple tests determine what counts as a vote; and let the principle of finality govern. The time is therefore propitious to step back from the present political brawl to ask how a well-run legal system routinely reconciles these twin demands. Aspirations would always prevail if the operation of a legal system were costless and error-free; but it obviously is not. How, therefore, must we temper these aspirations—and minimize the administrative imperfections at the same time? The oft-neglected virtues of process and formalism must come into their own.

Mr. Epstein is a professor of law at the University of Chicago.

About the Author

Richard A. Epstein

Richard A. Epstein is the Laurence A. Tisch Professor of Law at NYU School of Law, the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago. His many books include The Dubious Morality of Modern Administrative Law.