Faculty Bibliography

This article analyzes the role of hearsay in criminal justice proceedings and advocates for the court to adopt an active role in controlling the introduction of hearsay, to ensure that only credible hearsay is admitted into evidence. It considers the impact that hearsay has on the defendant’s constitutional right of confrontation, discussing in what circumstances corroboration and testing will allow the defendant’s rights and societal needs of justice and fairness to be satisfied.

Are "canons of construction" embarrassing? For a long time, the answer was "yes." Exposed as "contradictory" by Karl Llewellyn, a generation of legal thinkers understood interpretive canons to be so malleable in their application as to operate mostly as pretext. Rather than bring predictability to statutory decisions, the availability of more than one interpretive canon in nearly any appellate case meant that a canon's invocation worked mostly to obscure the choice (conscious or not) by judges between legally permissible outcomes. Interpretive canons were thus tools of legal mystification, providing the appearance of law to what were, ultimately, acts of discretion.

Published with Thomson Reuters since 2010.

The paper analyzes the effects of holding firms liable for non-disclosure of material information when raising capital. We develop a model in which a privately-informed entrepreneur can choose to withhold information from prospective investors when issuing and selling stock and the investors can bring suit against the firm ex post for (alleged) non-disclosure. The damage payment received by the investors is partially offset by the reduced value of their equity stake. The analysis shows that the equilibrium depends on, among others, (1) the amount of personal capital the entrepreneur has to commit, (2) the frequency with which the entrepreneur is privately informed (the degree of adverse selection), (3) the size of damages payment, and (4) the cost of litigation. Court errors decrease social welfare by weakening deterrence while litigation costs may increase social welfare by deterring the inefficient types or decrease social welfare through wasteful litigation spending. The effects of liability or class action waivers and holding entrepreneurs personally liable for non-disclosure are also explored, and various normative and empirical implications are discussed.

Across the ages, moneys exhibit a recurring set of design elements: they are made of debt; that debt is specifically fashioned to create liquidity; and the debt medium that results comes with a pledge of value (commonly collateral, convertibility, a commitment of public faith, and/or insurance) to enhance its credibility. While those design elements appear again and again, they vary greatly in form. Debt, for example, can be structured as a straightforward liability or issued by agents (e.g., a central bank acting for a government). Every difference in design changes the dynamics of the medium and the way people treat it. Every difference in design thus affects exchange, its societal context, and how value travels. Like the law of payments, the legal design of money shapes the economy itself. [This essay is written as part of a festschrift for Professor Benjamin Geva.]

This article explores subjects in optimal income taxation characterized by recent research interest, practical importance in light of concerns about inequality, potential for misunderstanding, and prospects for advancement. Throughout, the analysis highlights paths for further investigation. Areas of focus include multidimensional abilities and endogenous wages; asymmetric information and the income of founders; production and consumption externalities from labor effort; market power and rents; behavioral phenomena relating to perceptions of the income tax schedule, myopic labor supply, and the interactions of savings, savings policies, and labor supply; optimal income transfers; the relationship between optimal income taxation and the use of other instruments; and issues relating to the social welfare function and utility functions, including nonwelfarist objectives, welfare weights, heterogeneous preferences, and taxation of the family.

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a *standard*, not a *decision procedure*. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.Distinguishing standards from decision procedures explains how originalists can tolerate substantial uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice.It would be very nice if the correct constitutional theory gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.

Roscoe Pound was one of the most celebrated figures in twentieth century American legal thought, having originated the field of sociological jurisprudence which presaged legal realism and having served for two decades as Dean of Harvard Law School. Less well known is his extended role in China as a principal advisor to the Nationalist government as it fought a civil war during the 1940s against the Chinese Communist Party. And even less fully explicated is the story of how Pound's ideas influenced Chinese legal thought to this day and of how China influenced his thinking. Pound for Pound has two principle objectives. The first is to reconstruct, from archival and other materials, Pound's adventures (and misadventures) in China, and then to examine the ways in which his thought was first lionized by Chinese scholars, then denounced during the early years of the People's Republic of China, and subsequently, in the late twentieth and early twenty-first centuries, embraced there. The second is to use Pound's experience to raise questions about the role of U.S. and other foreign scholars involved in Chinese legal development over the past several decades that have not received the scrutiny warranted.

The United States Tax Court hears well over 90% of the federal tax cases litigated each year with only a small percentage of opinions coming out of district courts and the Court of Federal Claims. The Tax Court classifies its opinions as precedential or non-precedential based on the issues presented. Over 75% of Tax Court litigants file their petition pro se. Each year it classifies a handful of opinions as precedential in which the petitioner(s) is pro se. In almost all of these cases the Court creates binding precedent on the basis of a case in which only one side, the IRS, presents meaningful legal arguments thus turning the process leading to the decision from one based on the adversarial process to the inquisitorial process. While the Tax Court works hard to reach the right conclusion, it loses the benefit of legal argument on the side of the petitioner/taxpayer and potentially reaches a different conclusion than it might have reached had the taxpayer’s side of the argument been well developed. Tax Court opinions typically take several months or years after trial before the Court renders an opinion. This paper suggests that when the Tax Court decides to render a precedential opinion in a pro se case it pause its deliberations for a short period and appoint or solicit members of its bar, either in the low income taxpayer clinical community or other pro bono counsel, to allow the submission of an amicus on behalf of the position of the taxpayer. The paper points to practices in other courts that have developed a more formal approach to amicus briefs as models for the proposed practice. Adopting such a practice would not only benefit the individual litigant but all who follow with the same issue.

The tax system designed by Congress imposes significant administrative burdens on taxpayers. IRS decisions regarding how it administers tax laws can add to congressionally imposed burdens. The administrative burdens are consequential and hurt some people, especially lower- or moderate-income individual taxpayers, more than others. While the IRS strives to measure and reduce the time and money taxpayers spend to comply with their tax obligations, it does not consider the effect administrative burdens have on taxpayer rights, including the right to be informed, the right to pay no more than the correct amount of tax, and the right to a fair and just tax system. In this Article we discuss the concept of administrative burdens and reveal specific examples of how IRS actions, and inaction, have burdened taxpayers and jeopardized taxpayer rights. In addition to identifying and contextualizing these problems, we propose that the IRS conduct Taxpayer Rights Impact Statements on new and existing systems to evaluate when it would be appropriate to reduce, eliminate, or shift burdens away from citizens and onto the government or third parties.

Hohfeld had (at least) three major insights: (1) freedom to do something is different from having the right to limit the free actions of others; (2) property entails a bundle of rights that can be disaggregated in various ways; (3) freedom from regulation is not a self-regarding act because it makes others vulnerable to the effects of one's actions. These insights are useful in analyzing recent disputes in public accommodations law. Can public accommodations engage in statutorily-prohibited discrimination when service violates the owner's religious beliefs? This question entails understanding about the substantive norms of businesses open to the public and the appropriate scope of religious liberty. But before addressing the substantive issue, we face a problem of conceptualization. What rights are actually at stake in these kinds of cases? That is where Wesley Hohfeld's analytical scheme of legal rights is helpful. Claims of religious liberty may either be Hohfeldian privileges (freedom to act without legal constraint) or Hohfeldian claim-rights (legal claims to the aid of the state in constraining the free actions of others). When a hotel refuses to serve a customer, it is seeking both the freedom to deny service (which makes customers vulnerable to being told they are unwelcome) and the right to exclude the customer (which entails a duty to stay off the property without the owner's consent). Hohfeld distinguished these types of legal entitlements and argued that a privilege to express distaste for the customer's being or "lifestyle" is logically different from having a legal right to prevent the customer from entering the store. And both of those are distinguishable from granting the customer the Hohfeldian power to demand service (with a corresponding obligation on the store to sell its goods or services to the customer) or granting the store owner an immunity from being compelled to provide such service (which corresponds to a vulnerabilty on the customer's part since the customer needs to call ahead to see if she will be able to obtain service). All this matters because claims of religious liberty usually entail claims to have the right to control the behavior of others. The same is true of those who claim they have a right to free access to public accommodations; those claims entail an obligation on stores to provide service. Neither side is actually asking to "just be left alone." That means that neither side is actually talking about freedom from regulation; each is demanding a legal rule that affects and regulates the behavior of others and the state must make a choice between these conflicting entitlements. Choosing whether a public accommodation can deny service to customers to whom the owner objects requires, as Hohfeld said, a judgment of "justice and policy." It cannot be decided as a logical deduction from the abstract concept of freedom or religious liberty.

What do restorative justice initiatives and racial justice initiatives have to offer one another? In high schools and in criminal law settings, these phrases name and mobilized people, resources, and critiques. Despite real differences in original methods, there seems much for racial justice and restorative justice to share. Racial justice advocates rightly call for both personal change and also systemic transformation. Restorative justice points toward political, legal, and economic policies and practices while also working hard on transformations of the attitudes, feelings, and world-views of individual. Both need to attend as well to media and public education, as well as the day-to-day interactions in communities. And both point to ways to connect the personal and the structural, the interpersonal and the political, the individual freedom to act and the collective systems that so often seem hard to move. And both can focus on the concentric circles of actors and contributing influences on conflicts that can be resources for change.

Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to be the most likely to reoffend.

Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of the answer turns on legal craft—identifying the tools available to a Justice as she decides individual cases. However, part of it also requires adopting a regime perspective— ensuring that a Justice’s actions meet the challenges of her own constitutional moment. In my account, Chief Justice Roberts takes centerstage. Beginning with legal craft, I analyze the tools that Roberts employs to preserve the Court’s legitimacy in concrete cases—namely, coalition building, calls for action by the elected branches, incrementalism, charity for the opposing side, triangulating between constitutional extremes, and promoting a vision of institutional humility. From there, I adopt a regime perspective, charting three future paths for the Roberts Court—each with its own set of challenges for the Justices as they seek to preserve the Court’s institutional legitimacy.

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity, thereby delivering an important victory for LGBTQ+ persons in their continuing struggle to be treated with equal regard in all areas of life. A striking feature of the case, and one reason why it has been so widely discussed, is that all three opinions—the majority and two dissents—professed to apply a textualist theory of statutory interpretation. In particular, all three opinions took for granted that courts should enforce a statute’s ordinary meaning at the time of enactment.3 No competing theory of statutory interpretation was even on the table. Going forward, we can expect textualism to play an increasingly prominent role in how courts resolve questions of statutory interpretation. So, it is worth asking what textualism instructs courts to do and whether courts should do as textualism instructs. A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries attempts to answer both of those questions. It contends that there were multiple versions of textualism on display in the Justices’ opinions in Bostock and that none of those versions is ultimately defensible. This is a long and rich Article by distinguished scholars, and I agree with much of what they say. Yet I also think that their characterization of and objections to textualism miss the mark. In this Essay, I argue (i) that the versions of textualism that Eskridge, Slocum, and Gries criticize are not really textualism; (ii) that their examples of “societal dynamism” do not put any pressure on textualism properly understood; and (iii) that their corpus-linguistics analysis of the word “sex” would not persuade any textualist to adopt their preferred interpretation of Title VII. I am not a dyed-in-the-wool textualist myself: while frequently sympathetic to textualism, I doubt that judges ought to employ it in every case. Still, my sense is that many commentators are unduly dismissive of textualism—tending to criticize strawman versions of it rather than the genuine article—and my goal is to push back against that tendency here. Below, Part I attempts to lay out more clearly what textualism claims. Parts II and III argue that the “compositional” and “extensional” versions of textualism that Eskridge, Slocum, and Gries criticize are not textualism and, indeed, not positions that any mainstream legal interpreter today claims to hold. Part IV answers the authors’ objections to textualism based on so-called societal dynamism. Finally, Part V turns to the authors’ corpus-linguistics analysis of “sex.”

As the semantic capability of computer systems increases, the law should resolve clearly whether the First Amendment protects machine speech. This essay argues it should not be read to reach sufficiently sophisticated — "replicant" — speech.

"Steven Shapin began a classic work with this sentence: "There was no such thing as the Scientific Revolution, and this is a book about it."1 This book’s theme might be put in similar terms. There was no Constitutional Revolution of 1937, and this is a book about it. As the book’s subtitle suggests, the Hughes Court from its inception in 1930 was in large measure a Progressive court, committed in a wide range of areas to the vision of active government associated with the Progressive movement in thought and politics. The Court was not dominated by a deep formalism, though most of the justices, liberals and conservatives alike, had their moments of formalism - and not merely for strategic reasons when controlling precedent forced formalism on them. At one time or another and cumulatively a great deal of the time, all of the justices incorporated ideas about good public policy in their interpretations of the Constitution and federal statutes"– Provided by publisher.

The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, an 1889 decision in which it allegedly held that Congress possesses “sovereign” power to regulate immigrants beyond Congress’s ordinary enumerated powers. Absent this imagined Immigration Clause, the Court has offered no explanation for its anomalous review of Congress’s immigration laws. This Article contests this traditional reading of the Chinese Exclusion Case as well as the consequences that have followed from it. Throughout the first century of congressional and judicial resistance to Congress’s power to regulate immigration, there was a broad consensus that Congress had no freestanding power to regulate immigrants beyond its ordinary powers to regulate everyone else. Far from disrupting this consensus, the author of the Chinese Exclusion Case adhered to it before, during, and after his opinion. It was not until the mid-twentieth century that the Supreme Court retroactively misread the Chinese Exclusion Case to authorize an extraconstitutional federal immigration power. Yet these misreadings have never explained why the Court invalidates ordinary domestic legislation even as it defers to federal immigration laws. In contrast with scholars and immigration advocates who have sought to apply the Court’s ordinarily skeptical scrutiny to the immigration context, we argue that this history highlights the flaws of relying on judicial review to protect disenfranchised minorities from a hostile and overzealous Congress. This review has functioned to muffle the serious legislative debate that animated the resistance to the first century of federal immigration restrictions. Rather than ask the courts to limit federal immigration laws just as they limit federal healthcare laws, we therefore argue that Congress itself should rethink whether Article I permits the expanse of its immigration laws in effect today.

In this essay for the Oxford Handbook of Japanese Politics, I survey the state of (and the research into) the Japanese judiciary. Japan operates a largely honest and meritocratic judiciary. The court's administrative office (and indirectly, the ruling party) can reward and punish judge for the quality of the work they do -- and has. For the most part, the administrative office uses that capacity to reward good work. It can also use the capacity to punish opposition politics -- but self-selection into the judiciary seems to keep the (perceived) need for that political intervention to a minimum.

Recently the literature on free expression has turned to the question, should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

For decades, the bundling of research services into commissions paid for the execution of securities trades has been the focus of policy discussion and academic debate. The practice whereby asset management firms use investor funds to cover research costs, known as “soft dollar” payments in the United States, resembles a form of kickback or self-dealing. The payments allow asset managers to use investor funds to subsidize the cost of their own research efforts even though those managers charge investors a separate and explicit management fee for advisory services. Why do soft dollars exist? Over the years, defenders of the practice have argued that soft dollars mitigate principal-agent problems between the investment manager and the broker, improve fund performance, and provide a public good in terms of the increased production of research on public companies. This Article evaluates these theoretical law-and-economics arguments through the lens of empirical academic research done in the past as well as an emerging new body of empirical studies exploring the impact of MiFID II, an E.U. Directive that severely restricted the use of soft dollar payments in European capital markets as of January 2018. The weight of empirical evidence suggests that the arguments in favor of soft dollars are not robust. MiFID II’s unbundling of commissions appears to have, on balance, improved European market efficiency by eliminating redundancy and producing information that is of greater value to investors.

With the rising support for stakeholder capitalism and at the urging of its advocates, companies have been increasingly using environmental, social, and governance (ESG) performance metrics for CEO compensation. This Article provides a conceptual and empirical analysis of this trend and exposes its fundamental flaws and limitations. It shows that the use of ESG-based compensation has, at best, a questionable promise and poses significant perils. We identify two structural problems with the use of ESG compensation metrics and provide empirical analysis highlighting their presence in current practices of S&P 100 companies. First, ESG metrics commonly attempt to tie CEO pay to limited dimensions of the welfare of a limited subset of stakeholders. Therefore, even if these pay arrangements were to provide a meaningful incentive to improve the given dimensions, the economics of multitasking indicates that the use of these metrics could well ultimately hurt, not serve, aggregate stakeholder welfare. Second, and most importantly, the push for ESG metrics overlooks and exacerbates the agency problem of executive pay. To ensure that they are designed to provide effective incentives rather than serve the interests of executives, pay arrangements need to be subject to effective scrutiny by outsider observers. However, our empirical analysis shows that in almost all cases in which S&P 100 companies use ESG metrics, it is difficult, if not impossible, for outside observers to assess whether these metrics provide valuable incentives or merely line CEO’s pockets with performance-insensitive pay. Current practices for using ESG metrics, we conclude, likely serve the interests of executives, not of stakeholders. Expansion of such use should not be supported even by those who care deeply about stakeholder welfare.

With the rising support for stakeholder capitalism and at the urging of its advocates, companies have been increasingly using environmental, social, and governance (ESG) performance metrics for CEO compensation. This Article provides a conceptual and empirical analysis of this trend, and exposes its fundamental flaws and limitations. The use of ESG-based compensation, we show, has at best a questionable promise and poses significant perils. Based partly on an empirical analysis of the use of ESG compensation metrics in S&P 100 companies, we identify two structural problems. First, ESG metrics commonly attempt to tie CEO pay to limited dimensions of the welfare of a limited subset of stakeholders. Therefore, even if these pay arrangements were to provide a meaningful incentive to improve the given dimensions, the economics of multitasking indicates that the use of these metrics could well ultimately hurt, not serve, aggregate stakeholder welfare. Second, the push for ESG metrics overlooks and exacerbates the agency problem of executive pay, which both scholars and corporate governance rules have paid close attention. To ensure that they are designed to provide effective incentives rather than serve the interests of executives, pay arrangements need to be subject to effective scrutiny by outsiders. However, our empirical analysis shows that in almost all cases in which S&P 100 companies use ESG metrics, it is difficult if not impossible for outside observers to assess whether this use provides valuable incentives or rather merely lines CEO’s pockets with performance-insensitive pay. The current use of ESG metrics, we conclude, likely serves the interests of executives, not of stakeholders. Expansion of ESG metrics should not be supported even by those who care deeply about stakeholder welfare.

Political discourse and survey research both suggest that many Americans believe constitutional protections for free expression extend more broadly than what is reflected in the black letter law. A notable example of this has been the claim--sometimes explicitly constitutionalized--that content moderation undertaken by digital platforms infringes on users' legally protected freedom of expression. Such claims have proven both rhetorically powerful and politically durable. This suggests that laypeople's beliefs about the law--distinct from what the state of the law actually is--could prove important in whether content moderation policies are democratically and economically successful. This Article presents the results of an experiment conducted on a large, representative sample of Americans to address questions raised by the phenomenon of constitutionalized rhetoric about digital platforms and content moderation. The experimental results show that commonly-held but inaccurately broad beliefs about the scope of First Amendment restrictions are linked to lower support for content moderation. These results highlight an undertheorized difficulty of developing widely acceptable content moderation regimes, while also demonstrating a surprising outcome when correcting misrepresentations about the law.

May a threatened state use force against armed nonstate actors situated in another state without the other state's permission? Proponents of the “Unable or Unwilling Doctrine” ("UUD") answer in the affirmative, provided that the territorial state in which the nonstate actors are based is either unable or unwilling to tackle the threat by itself. Opponents reject the UUD, arguing that it has no place within existing international law. The intense, multi-layered debates over the UUD have thus far been grounded primarily in the international law of self-defense. Moreover, both proponents and opponents of the doctrine have tended to treat its two prongs as interchangeable, such that the legality of a use of force or the consequences that follow from it are unaffected by which of the two explains the territorial state’s failure to negate the threat to the targeted state. This Article challenges both of these features of UUD analysis. Our first contention is that, while states enjoy limited leeway to use defensive force against nonstate actors in another state’s territory, the prerogative to enter the territorial state without other authorization is rooted in principles of necessity, not self-defense. In turn—and here we reach our second main contention—grounding the UUD in necessity suggests that, for cases in which the territorial state is unable, rather than unwilling, to deal with the threat, the threatened state is obligated to compensate the territorial state for harm caused by its unpermitted entry. Our third contribution is to explain why compensation might be owed, as a matter of equity, even for the entry itself as a (justified) violation of sovereignty. All of these claims, we contend, are bolstered by interpreting international law through the lens of private law, particularly the Anglo-American law of tort and restitution and its rules for the imposition of liability in cases of "private necessity."

The book presents a modern approach to understanding U.S. antitrust law, illuminating the economic analysis that dominates modern antitrust analysis in a straightforward way that minimizes technical jargon and makes the underlying economic ...

What precisely is stock market short-termism? For an issue that pervades corporate governance thinking, rhetoric, and policymaking, one would think that we know well what it is. But much that’s called stock market short-termism is not properly categorized as such. This distinction—between true stock-market short-termism and false short-termism—is the focus of this article.

According to King: "All segregation statutes are unjust because segregation distorts the soul and damages the personality. [...]King insists on distinguishing his disobedience of law from that of his antagonists: "In no sense do I advocate evading or defying the law, as would the rabid segregationist. FOUR YEARS AFTER King wrote "Letter from Birmingham Jail," the Supreme Court upheld King’s conviction for contempt of court even if the injunction he violated was itself illegal. When Justice Potter Stewart quipped in the case, Walker v. City of Birmingham, that "respect for judicial process is a small price to pay for the civilizing hand of law," he sided with those who feared that protest had gotten out of hand; who believed that assertions of individual conscience had degenerated into egotistical pretensions; who held that talk of civil disobedience threatened to unleash chaos, and that attraction to King and sympathy for the sufferings of African Americans had tempted too many to abandon conventions that are crucial to stability in a large, complex, conflicted polity.