*  This commentary is derived both from Professor Kornhauser’s presentation and the paper accompanying his talk, which Professor Kornhauser graciously made available for my use.

** J.D. Candidate, Stanford Law School, 2001; Ph.D. Candidate (Political Science), University of Minnesota, 2000; B.A. Amherst College, 1993.

1.  See Generally  RONALD DWORKIN, LAW'S EMPIRE (1986).

2.  Kornhauser sees that problems arise when one considers that legal systems, institutions, and rules are usually not designed by a solitary individual but by political bodies consisting of many members, often with competing purposes and goals. Certainly though, such motivations could be found to exist in individual lawmakers, and Kornhauser seems to assume that they are identifiable in the aggregate as well.

3.  Even if one adopts a non-instrumental view of adjudication, it would be misleading to speak of the judge as engaging in regular design. However, this inability to engage in design of any sort is further evidence of the constraints that the judge faces.

4.  Kornhauser stated in the talk that this portion of his project is still tentative and may be revised prior to publication. It is presented here as one possibility.