Ackerman, Bruce A. 1943-

(Bruce Arnold Ackerman)

PERSONAL: Born August 19, 1943, in New York, NY; son of Nathan and Jean Ackerman; married Susan Rose (an economist), May 29, 1967; children: Sybil, John. Education: Harvard University, B.A. (summa cum laude), 1964; Yale University, LL.B. (with honors), 1967.

ADDRESSES: Office—School of Law, Yale University, New Haven, CT 06520. E-mail—[email protected].

CAREER: Law clerk, U.S. Court of Appeals, 1967-68, U.S. Supreme Court, 1968-69; admitted to the Bar of Pennsylvania, 1970; University of Pennsylvania Law School, Philadelphia, assistant professor of law, 1969-71, associate professor, 1972-73, professor of law and public policy analysis, 1973-74; Yale University, New Haven, CT, professor of law, 1974-82; Sterling Professor of Law and Political Science, 1987—. Columbia University, New York City, Beekman Professor of Law and Philosophy, 1982-87; visiting professor and lecturer.

MEMBER: American Law Institute, Pennsylvania Bar, American Academy of Arts and Sciences, Order of the Coif, Phi Beta Kappa.

AWARDS, HONORS: Rockefeller fellow in the humanities, 1976-77; Henderson Prize for the best book on law and government published between 1972 and 1980, Harvard Law School, 1981, for The Uncertain Search for Environmental Quality; Gavel Award, American Bar Association, 1981, for Social Justice in the Liberal State; Guggenheim fellowship, 1985-86; Institute for Advanced Study fellow, Berlin, Germany, 1991-92; University of Connecticut Law Review Award, 1993; Woodrow Wilson Center fellow, 1995-96; American Academy of Arts and Sciences fellow; grants from the National Science Foundation and the Council on Law-Related Studies; fellow, Collegium Budapest, fall, 2002; fellow, Center for Advanced Study in the Behavioral Sciences, spring, 2002; Commander, Order of Merit of the French Republic, 2003; Henry Phillips Prize in Jurisprudence (for lifetime achievement), American Philosophical Society, 2003.

WRITINGS:

(With wife, Susan Rose-Ackerman, Dale Henderson, and James Sawyer) The Uncertain Search for Environmental Quality, Free Press (New York, NY), 1974.

(Editor) Economic Foundations of Property Law, Little, Brown (Boston, MA), 1975, new edition (with Robert C. Ellickson and Carol M. Rose) published as Perspectives on Property Law, Little, Brown (Boston, MA), 1995.

Private Property and the Constitution, Yale University Press (New Haven, CT), 1977.

Social Justice in the Liberal State, Yale University Press (New Haven, CT), 1980.

(With William T. Hassler) Clean Coal/Dirty Air: Or How the Clean Air Act Became a Multibillion-Dollar Bail-out for High-Sulfur Coal Producers and What Should Be Done about It, Yale University Press (New Haven, CT), 1981.

Reconstructing American Law, Harvard University Press (Cambridge, MA), 1984.

We the People, Harvard University Press (Cambridge, MA), Volume 1: Foundations, 1991, Volume 2: Transformations, Harvard University Press (Cambridge, MA), 1998.

The Future of Liberal Revolution, Yale University Press (New Haven, CT), 1992.

(With David Golove) Is NAFTA Constitutional? Harvard University Press (Cambridge, MA), 1995.

(With Anne Alstott) The Stakeholder Society, Yale University Press (New Haven, CT), 1999.

The Case against Lameduck Impeachment (“Open Media Pamphlet” series), Seven Stories Press (New York, NY), 1999.

(With others) What Brown v. Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision, New York University Press (New York, NY), 2001.

(With Ian Ayres) Voting with Dollars: A New Paradigm for Campaign Finance, Yale University Press (New Haven, CT), 2002.

(Editor) Bush v. Gore: The Question of Legitimacy, Yale University Press (New Haven, CT), 2002.

(Editor, with Robert C. Ellickson and Carol M. Rose) Perspectives on Property Law, Aspen Law & Business (New York, NY), 2002.

(With James Fishkin) Deliberation Day, Yale University Press (New Haven, CT), 2004.

The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy, Belknap Press of Harvard University Press (Cambridge, MA), 2005.

(With Anne Alstott and Philippe Van Parijs) Redesigning Distribution: Basic Income and Stakeholder Grants as Alternative Cornerstones for a More Egalitarian Capitalism, Verso (New York, NY), 2006.

Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, Yale University Press (New Haven, CT), 2006.

Contributor to law journals and periodicals, including the Wall Street Journal and the New York Times.

SIDELIGHTS: Bruce A. Ackerman is a Yale University law professor and constitutional attorney. He was called to testify during hearings on the impeachment of President William Jefferson Clinton and has served the public interest in selected cases. Ackerman’s areas of interest, including political philosophy, constitutional law, comparative law and politics, environmental law, law and economics, and property, are covered in his various books.

Writing in the Times Literary Supplement, J.L. Mackie described Ackerman’s Social Justice in the Liberal State as being “in the tradition of John Rawls and Robert Nozick. Most of the discussion concerns a group of pioneers who are about to colonize a new planet, and science-fiction devices are used freely to set up the idealized situations for which social justice is initially described.” The dialogue, according to Clifford Orwin of the New York Times Book Review, is styled after Socratic and Platonic models. In the hypothetical dialogue between reader and Ackerman, says Orwin, the reader wins “by proving that your position is the one that is according to Mr. Ackerman.” Wilson Carey McWilliams of the Washington Post Book World explained Ackerman’s technique for winning the arguments brought out in these dialogues: “Ackerman’s emphasis on dialogue does give his argument some unique features. It leads him to deny rights to any party who cannot participate in dialogue, and hence to justify abortion and to allow parents great authority in dealing with children.”

Liberal philosophy on the issue of neutrality is a central point of the essays. According to Orwin, Ackerman bases his argument on standard liberal tenets: “Mr. Ackerman’s main argument is above all a leveling one. The claim of ‘at least-as-goodness’ precludes all other claims, notably those based on desert or merit. Everyone deserves as well as everyone else, so no one deserves better.”Mc McWilliams’s comment on this point: “Ackerman’s dialogue is not ‘neutral’ at all. A great many people believe that their ideas of the good are more rational or better grounded in nature than competing notions. Ackerman will have none of it: they are not to be allowed to make such arguments because Ackerman is convinced that their beliefs are false.”

McWilliams felt that Ackerman’s advocacy of “a ‘constrained conversation’ like the great liberals of his tradition” causes some gaps in his discussion: “Liberal dialogue does not suppress any questioner, but it does suppress certain questions. Logically, in fact, it makes political discourse almost impossible, since any statement that ‘X is better than Y’ turns on some implicit ‘best’ which defines the ‘better,’ and any discussion of ‘the best’ is taboo.” Mackie also notes an omission: “If each claimant is as good as another, then like claims must be met equally. But what about diverse conflicting claims?… Such rival claims must be balanced somehow, but dialogue as Ackerman constrains it will not tell us how.”

The first book of a three-part study on constitutional history is Ackerman’ We the People, Volume 1: Foundations. New Republic reviewer Cass R. Sunstein wrote that Ackerman’s project “is to make new sense of the Constitution as a whole, by telling a general story about the document that is both coherent and true to the past. Ackerman is not interested in celebration or apologetics. Quite the contrary: he is alert to the many injustices of constitutional theory and practice. But he wishes to develop a usable past, one that can give meaning and shape to previous developments and be brought fruitfully to bear on current controversies.”

Ackerman claims that the Constitution embodies a “dualist democracy,” comprised of constitutional politics, exercised when the “We the People” of the title act collectively on fundamental issues, and “normal” politics, or the decisions made in the routine operation of government. Sunstein said Ackerman’s second claim “is that we have had not one but three constitutional regimes in America. These regimes have been produced by three ‘constitutional moments.’” The first of these was adoption of the Constitution. The second was activity during Reconstruction following the Civil War. The third was the New Deal. Sunstein wrote that each of these “fundamentally altered the preceding regime’s institutional arrangements and substantive commitments. And each, Ackerman claims, was illegal, in the sense that it squarely violated the law prescribing the methods for constitutional change.” Sunstein said Ackerman’s claims are “powerfully argued. Taken together, they should reshape in some major ways our understandings of American constitutional law and of the American political tradition as a whole. In short, this is a book of enduring importance. And it will certainly spur a sustained debate.”

Richard A. Posner reviewed *We the People, Volume 2: Transformations in the New Republic. Posner said that “for some years, Bruce Ackerman has been trying to show that Article V is not exclusive: that the Constitution can be amended without complying with its terms…. Ackerman’s second volume is concerned primarily with showing through detailed historical inquiry how the process of extratextual amendment has worked, and how it can be made to work better…. I admire Ackerman’s tenacity, imagination, and lucidity; but I find his project unconvincing

Commentary reviewer Adam Wolfson wrote that in Ackerman’ view, “the ‘activist welfare state’ has become a part of our fundamental law. This means, however, that as far as he is concerned the New Deal cannot be cut back, even if that is what the American people seem to want in the course of ordinary elections. In short, it is difficult to avoid the conclusion that Ackerman’s goal is not so much a return to popular sovereignty in constitutional interpretation as the protection of certain sacred cows of modern liberalism.” Wolfson concluded by saying that this second volume “is a welcome return to a sort of constitutional and political history that is no longer fashionable in the academy, where social history is now ascendant. It is, in addition, a lively and informative read. But whether Ackerman’s account holds up is another question.”

Gary Rosen, also writing in Commentary, said that although Ackerman “devotes hundreds of pages to the extraordinary demands of constitution-making during the Founding and Reconstruction, his main effort is bent toward vindicating the New Deal in all its breadth. Franklin Roosevelt may have made his own constitutional rules, Ackerman concedes, but in so doing he was following in the footsteps of the Founders and post-Civil War Republicans—and no one questions the legitimacy of their ‘higher lawmaking.’” A Kirkus Reviews contributor felt “readers well grounded in constitutional law will find Ackerman’s arguments fascinating and provocative.”

Ernest Gellner wrote in New Republic that Ackerman’s The Future of Liberal Revolution “is one of many efforts to make sense of the events that came to a head in 1989 and 1991: the dismantling of the Bolshevik empire. It is a kind of polemic with Francis Fukuyama and the End of History thesis (though Ackerman simplifies that thesis in crediting Fukuyama only with the view that mankind now has no option other than consumerism, and ignoring his other argument that liberalism satisfies also a different need, namely the craving for recognition).”

Ackerman suggests that Russians and Eastern Europeans adopt the constitutional model of the United States. “In the abstract,” said Gellner, “this argument may or may not be correct. It is difficult to disagree with Ackerman’s views as a blueprint for what would be desirable, were it feasible.” Gellner felt the book lacks comparisons between revolutions, particularly the American Revolution, and the situation in former Communist Europe. “The American Revolution was a self-affirmation of a vigorous civil society, and of its moral intuitions. The collapse of Bolshevism, by contrast, was not a proper revolution at all. It was an unplanned consequence of an act of despair on the part of those who had destroyed civil society who had come to miss it and to see that what they had erected was intolerable. The difference between the two situations is tremendous.”

In The Stakeholder Society, Ackerman and fellow Yale law professor Anne Alstott point to the growing disparity in the distribution of wealth in the United States and the decrease in opportunity for the poor and middle classes who have not benefited from the new prosperity. They propose that each person, upon reaching young adulthood, be given eighty thousand dollars to be used for education, home purchase, or beginning a business, the sum to be repayable later in life with interest. They suggest that the program be funded by a wealth tax. A Kirkus Reviews contributor said that the authors “raise fundamental questions about citizenship, distributive justice, and, above all, what it would mean to be serious about the political ideals routinely used to legitimate American political and economic institutions.” An Economist reviewer noted that “although the problem of the cash-poor with illiquid wealth is tackled head on, the authors become increasingly removed from political reality in their efforts to explain how everybody would be made to pay.… Despite this flaw, The Stakeholder Society is an important book. The problem of inequality, in which the returns increasingly go to the best educated and most privileged, is real and growing.” Choice reviewer R. Kelly wrote that the authors “pay particular attention to the expected criticism of libertarians.”

“Ackerman and Alstott’s fundamental concern,” wrote Sunstein in New Republic, “is not poverty or education, or crime, but the old idea of universal citizenship. They are dismayed not only by unequal opportunity and social desperation, but also by identity politics and social fragmentation. One of their chief goals is to design a program in which each and every American can feel included, in the same way and on the same terms.” Sun-wrote that under this plan, “as members of the rising generations come forward to stake their claims, they will be doing more than affirming their individual right to shape their own particular destinies. They will also be affirming their identity as citizens of a great country devoted to freedom and equality.… Except for the most hardened cynics, this will lead to a deep and sustaining loyalty to the country that made stakeholding a concrete reality.” The authors suggest that young people could be disqualified if they do not finish high school or if they are convicted of a crime. Sunstein felt this idea “would likely have a destructive effect.… Indeed, the existence of this sort of stake could have the unfortunate consequence of making the mos disadvantaged members of the society feel even more excluded.” Sunstein raised another objection to the idea, “the question of whether young adults can be considered sufficiently responsible to be given $80,000 by American taxpayers.” “Now you may think,” said Sunstein, “and it is reasonable to think, that the idea is quite preposterous. But Ackerman and Alstott have convinced me at least that it is heuristically interesting, and that those who reject it, or even find it daft, should take their argument as an occasion for thinking of other methods for giving all Americans, including young adults, a decent chance in life.”

Jay Mandle wrote in Commonweal that the authors’ position, “that success or failure in life is largely in the hands of individuals themselves, is exaggerated. Particularly in an age of globalization… dislocations are the norm. Individuals in such circumstances are principally the objects, not the agents, of life changes. As such they should be provided with support to allow them to adjust and thrive in new circumstances. To insist to the contrary and not to place a priority on supporting and retraining the victims of progress represents a loss of opportunity which is costly not only to the individuals but to the society as a whole.”

Ackerman and Alstott also propose a retirement plan linked to citizenship rather than work. Booklist reviewer Mary Carroll questioned whether their proposals are realistic, saying “probably not, but valuable for reframing an essential public conversation.” A Publishers Weekly reviewer called the proposal “an interesting alternative to the similarly dramatic and simple plans for a flat tax currently being put forward.”

Voting with Dollars: A New Paradigm for Campaign Finance, which Ackerman cowrote with Ian Ayres, takes a hard look at the electoral process and the ways in which money is accumulated in order to fund the campaigns of the various candidates. Modern-day laws to regulate campaign financing were set in the 1970s and maintained for approximately thirty years before facing even the barest reforms, which were intended to eliminate the power of special interest groups to manipulate the electoral process through heavy financial backing of their chosen candidate or party. Ackerman and Ayres examine the flaws in the system and in the reforms, and they discuss what issues need to addressed regarding limits set in place for both spending and contributions. Jane Manners, in a review for the Nation, opined that “for all its shortcomings, Voting with Dollars deserves credit for pushing reformers to rethink some of their cherished assumptions about what works, and what’s desirable.”

In The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy, Ackerman discusses the history of the U.S. electoral process, looking back to 1801 when the results of the presidential election included a tie between Republicans Thomas Jefferson and Aaron Burr, with Federalist candidate John Adams losing by a large margin. Ackerman opines that this particular result indicated that the electoral process as set up by the men who determined it would not allow for true party politics, and that it allowed the winning candidate to claim that a request for radical change in government policies came from the people by way of their enormous support of his party. He goes on to show how this election and its results reverberated through history by setting a precedent for future presidential interpretation of election results. A reviewer for Publishers Weekly remarked of Ackerman’s effort: “This is not an easy read—indeed, it’s quite dense at times, and the argument is complex—but the payoff is worth it.” Ross E. Davies, writing for the Wilson Quarterly, called the book “an engaging collection of discoveries, anecdotes, imaginings, and diatribes that’s well worth reading, even though the parts don’t quite coalesce into an entirely persuasive whole.”

Ackerman’s Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism addresses the issue of terrorism, and just where public policy should draw the line between protecting the citizens of the country and maintaining their civil liberties. In the book, he cautions against the dangers of creating a constant state of emergency, where normalcy is lost in favor of an ongoing state of heightened awareness, and in some cases maintained through threats created or exaggerated by government officials. Bradley D. Hays, in a review for Presidential Studies Quarterly, remarked that “those who take structural protections of civil liberties seriously will find Before the Next Attack provocative. Ackerman will not be the last word, but he has done all of us a favor by initiating the discussion in such a stimulating fashion.” Mark Tushnet, writing for Political Science Quarterly, opined that “as always, Ackerman’s work is thought provoking.” He went on to note, however, that “filled with what in the end are basically intriguing asides, this book is more modest than its subtitle suggests, and is a minor addition both to the corpus of Ackerman’s work and to the literature on the constitutional dimensions of emergency powers.”

BIOGRAPHICAL AND CRITICAL SOURCES:

PERIODICALS

Annals of the American Academy of Political and Social Science, January, 1994, Jack Crittenden, review of The Future of Liberal Revolution, p. 178.

Booklist, April 15, 1999, Mary Carroll, review of The Stakeholder Society, p. 1495.

Case Western Reserve Law Review, spring, 1996, Larry Kramer, “What’s a Constitution for Anyway? Of History and Theory, Bruce Ackerman and the New Deal,” pp. 885-933; spring, 1997, Candice Hoke, “Arendt, Tushnet, and Lopez: The Philosophical Challenge behind Ackerman’s Theory of Constitutional Moments,” pp. 903-919.

Choice, January, 2000, R. Kelly, review of The Stakeholder Society, p. 981.

Commentary, August, 1992, Caleb Nelson, review of We the People, Volume 1: Foundations, p. 60; July, 1998, Adam Wolfson, review of We the People, Volume 2: Transformations, p. 68; July, 1999, Gary Rosen, “Triangulating the Constitution,” p. 59.

Commonweal, September 24, 1999, Jay Mandle, review of The Stakeholder Society, p. 24.

Economist, May 15, 1999, “Staked Out,” p. 9.

Energy Journal, July, 1985, Michael Haar, review of Clean Coal/Dirty Air: Or How the Clean Air Act Became a Multibillion-Dollar Bail-out for High-Sulfur Coal Producers and What Should Be Done about It, p. 166.

Environment, October, 1982, Leon G. Billings, review of Clean Coal/Dirty Air, p. 43.

Journal of American History, June, 1992, Jack N. Rakove, review of We the People, Volume 1: Foundations, p. 226; June, 1999, Kermit L. Hall, review of We the People, Volume 2: Transformations, p. 221.

Journal of Policy Analysis & Management, winter, 1993, Michael A. Fitts, review of We the People, Volume 1: Foundations, p. 223.

Kirkus Reviews, August 15, 1991, review of We the People, Volume 1: Foundations; April 1, 1998, review of We the People, Volume 2: Transformations.

Library Journal, March 15, 1981, Susan Marie Szasz, review of Social Justice in the Liberal State, p. 664; February 1, 1999, Thomas H. Ferrell, review of The Stakeholder Society, p. 109.

Michigan Law Review, October, 1999, William E. For-bath, “Caste, Class, and Equal Citizenship,” p. 1; May, 2000, Jeffrey S. Lehman and Deborah C. Malamud, review of The Stakeholder Society, p. 1482.

Nation, July 15, 2002, Jane Manners, review of Voting with Dollars: A New Paradigm for Campaign Finance, p. 40.

New Republic, December 23, 1991, Sean Wilentz, review of We the People, Volume 1: Foundations, p. 32; January 20, 1992, Cass R. Sunstein, review of We the People, Volume 1: Foundations, p. 32; November 30, 1992, Ernest Gellner, review of The Future of Liberal Revolution, p. 38; April 6, 1998, Richard A. Posner, review of We the People, Volume 2: Transformations, p. 32; May 24, 1999, Cass R. Sunstein, “Cash and Citizenship,” p. 42.

New York Review of Books, April 23, 1992, Edmund S. Morgan, review of We the People, Volume 1: Foundations, p. 46; September 23, 1999, Alan Ryan, “Please Fence Me In,” p. 68.

New York Times Book Review, October 19, 1980, Clifford Orwin, review of Social Justice in the Liberal State.

Political Science Quarterly, summer, 2007, Mark Tushnet, review of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, p. 316.

Presidential Studies Quarterly, December, 2007, Bradley D. Hays, review of Before the Next Attack, p. 783.

Publishers Weekly, February 15, 1999, review of The Stakeholder Society, p. 92; August 1, 2005, review of The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy, p. 54.

Times Literary Supplement, April 17, 1981, J.L. Mackie, review of Social Justice in the Liberal State.

Wall Street Journal, May 7, 1981, William Tucker, review of Clean Coal/Dirty Air, p. W22.

Washington Post Book World, December 21, 1980, Wilson Carey McWilliams, review of Social Justice in the Liberal State.

Wilson Quarterly, autumn, 2005, Ross E. Davies, review of The Failure of the Founding Fathers, p. 124.*