He Who Pays the Piper

By Mike Dorf

Over half a century ago, Herbert Wechsler wrote an article that has been much-maligned for two reasons, one good and one not so good.  The article, Toward Neutral Principles in Constitutional Law, published in the 1959 Harvard Law Review, was roundly and rightly criticized for Wechsler's puzzling statement at the end that he had not yet figured out how to write an opinion that would succeed where he thought the Supreme Court had failed in Brown v. Bd. of Educ.  Wechsler said he could not see how one could have a principled basis for preferring the right to associate of African Americans over the right not to associate of whites.  This was a very odd charge by Wechsler because it ignored the fact that Jim Crow was a set of legal institutions that themselves drew distinctions, not on the basis of association versus non-association but on the basis of race.

Yet Wechsler's misplaced cri de couer at the end of the article was hardly the central point.  His central point--which was so clearly right as to count as banal yet nonetheless was soon to be attacked as naive--was that when a court gives a reason for a decision, it should be prepared to stick with that reason in other cases (absent some distinction that makes the reason inapplicable).  Wechsler was calling for the application of principles without bias or result orientation.  To be sure, the principles Wechsler championed were not, as perhaps suggested by the title of his article, "neutral" in the sense of "nonideological."  And so some of the subsequent criticism of Wechsler's article took aim at a misunderstanding that Wechsler had inadvertently encouraged: Much of the revival of legal realism that marched under the banner of critical legal studies was an attack on Wechsler and others of his generation for their naive assumption that they occupied (to use a favorite postmodernist term of derision) a view from nowhere.

But Wechsler's core idea--if you invoke a principle you should really mean it--retains its staying power.  And it is now being tested in cases over a principle that is, on its face, attractive: He who pays the piper calls the tune.  Or to put that in more lawyerly terms: Government has considerable leeway to decide not to subsidize activities that it could not forbid outright.

In the abstract, the non-subsidy principle is neither liberal nor conservative.  Thus, in the 1991 case of Rust v. Sullivan--involving the abortion "gag rule"--liberals argued that the government denied the rights to free speech and abortion when it forbade doctors working in clinics receiving certain federal funds even from mentioning abortion to their patients, even in response to questions.  Social conservatives in that case and in matters of abortion more generally (see Hyde, Henry; Stupak, Bart) have tended to argue that although the government cannot forbid abortion or abortion-related speech, it need not fund it.

But sometimes the tables are turned, as in the currently pending Supreme Court case of Christian Legal Society v. Martinez, about which I wrote a column here, as well as blog entries here and here.  That last link points to an exchange between me and Michael McConnell, who is representing the Christian Legal Society.  His main brief can be found here.  I am the principal author of an amicus brief for the Association of American Law Schools supporting the other side.  (More briefs than you--or the Justices--can possibly read are found here.)  The Christian Legal Society raises a constitutional objection to the application of a rule by Hastings Law School requiring that all "registered student organizations" be open to all law students.  Part of the dispute boils down to the scope of the he-who-pays-the-piper principle, with Hastings and its amici arguing that precedents forbidding state interference with expressive associations' ability to choose their members do not apply to decisions by government actors (such as state law schools) to choose not to confer financial and other tangible benefits on associations that engage in conduct violating their general rules.  That's an oversimplification, of course, because the Christian Legal Society also questions whether Hastings really has an all-comers policy, but for my current purposes it's fair to say that the "liberal" side here favors a more vigorous application of the he-who-pays-the-piper principle than does the "conservative" side.

The challenge for anyone who takes seriously the Wechslerian point about principles (as I do) is to articulate a view about the limits of the he-who-pays-the-piper principle that does not turn on whether one likes or dislikes the activity claiming a subsidy.  Consider, for example, the disturbing news that state legislatures are threatening to use their funding power to rein in or even shut down law school clinics that bring legal actions  challenging practices by powerful industries in their respective states.  That news is disturbing because it interferes with the institutional autonomy of state universities and because it feels like a kind of foul play: If the lawsuits lack merit, the defendants have ample opportunities to make that point in court.  Cutting off funding for the people who are bringing the suits (and, under the client representation rules of most law school clinics could not afford to bring suit otherwise) seems out of bounds.

Yet it is hard to say exactly where the boundary line should be.  I am tempted to say that state legislatures should not be making judgments that should instead be left to the pedagogical judgment of state law schools.  But in fact, even when left to educators, the decision to start a clinic, like the decision to have an endowed chair in some particular subject, or even to have an entire program area, is not invariably just a matter of pedagogy.  A wealthy alum or other donor with an interest in international human rights offers to fund an international human rights clinic and so a law school dean and faculty, if satisfied that it will be appropriately staffed and provide useful educational opportunities, approve it.   If the donor had instead offered to fund a landlord-tenant clinic, the dean and faculty might well have favored that, because of the opportunity for local client contact and courtroom appearances, but the donor only wants to fund the international human rights clinic, so that's what gets established.  (I am making up this example and do not have in mind any particular law school or clinic, but the pattern across legal academia is as described.)  This sort of deal is not exactly corrupt, and it's hard to see how the law school and its students would be better off if the dean simply turned down the money, but it's hard to draw a bright line distinguishing the right of the wealthy donor to say how his money gets spent on clinical legal education from the right of the public (through its legislature) to say how its money gets spent on clinical legal education.  Indeed, we can make the analogy tighter by imagining that the funder for an existing clinic threatens to withdraw or withdraws funding because a lawsuit targets his own business.

At the broader level, I think these examples show that the best point the crits had against Wechsler was not that he didn't really believe in neutral application of principle.  The best point was that many sensible legal principles--including he-who-pays-the-piper principle--are quite indeterminate.