All Human Beings

One of the gravest mistakes I have found myself making is falling lazily into the belief that I am a good and well-meaning person. I try to be, of course. But one of the great gifts in my life over the last few years has been a recognition of the central importance of practice in becoming kinder and happier. It is not enough to recognize right and wrong or even to desire to do well for others – or even to do so regularly. Our default homeostatic existence is often at war with what we would do and be for ourselves and others if only we could see this life for what it is. For me, becoming truly more honest, generous, and compassionate requires a continual recognition that the mental models that are essential to making sense of my world and of getting on in conventional life can also be prisons, that actively working on my brain is necessary to grasp this fact at the level required to make a difference.

Your path and practice may differ from mine. Perhaps you have not been as often deluded or as often gripped by aversion or miswanting as I have been. But I was struck by the raw power of practice in my own life this morning while watching a video accompanying new music by Max Richter. I hesitate to refer people to books or talks that have been helpful to me in my practice, because the efficacy and depth of these things is so much a function of the intention of the listener. What may seem corny or cliche to the skeptical can work fundamental change in one who encounters it in the right way, at the right time.

So, with that proviso, try watching this video and saying aloud to each face that appears, without artifice or skepticism but with full belief – "My brother. My mother. My sister. My child." – as the person in front of you would be if you allowed it be so. I used to think making the world a more humane and peaceful place could not depend on individual moral transformation, as expecting that on a large enough scale was naive. Now, I believe, as strongly as I have ever believed in anything, that it is naive to think we can survive and thrive without it.

The Gun Subsidy

I have been working with a student co-author on an article that formalizes and improves upon a proposal I have made in the past to begin to solve our gun violence crisis. We have a ways to go. But the essence of this proposal is what we frame as "the gun subsidy." Its twin functions are (a) to make explicit what is now implicit: that the costs of gun production are subsidized by victims of gun violence and (b) to shift a very small portion of those costs to gun manufacturers (moderately reducing their subsidy) in order to achieve a more sane political economy on this issue. We want those who know guns best to use that knowledge to help solve the problem.

I include below a portion covering the major points of the proposal. Some details may change, and I do not include what we have been working on with respect to implementation.

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The Gun Subsidy

Guns are used to kill about 40,000 Americans each year. They are instruments of suicide, of domestic and workplace rage, of robbery, and of spectacular acts of domestic terrorism. This American carnage, as the president put it on the occasion of his inauguration, can indeed stop. While it is unrealistic, in a country of over 300 million people, to believe we can eliminate all interpersonal violence, it is equally absurd to insist that mass shootings and thousands of gun suicides are as inseparable from our landscape as oxygen.

The gun violence problem is not one of human nature but of social organization. The minds and experience that could best be directed to reducing gun deaths are instead consumed with fending off any and all gun regulation. This dynamic has caused extensive damage not only to victims of violence but also to our body politic. Indeed, the gun debate has become so caricatured and at the same time so stagnant that it has fostered in too many the insidious belief that our greatest problems are beyond our ability even to address. From it has grown a cynicism that politics cannot ever be responsive to social problems. The gun debate is a cancer that has spread to other vital issues. The critical step toward progress is promoting a shared store of facts and a shared effort to minimizing social harm.

We propose a first step that centers directly on the political problem. It is not a list of guns to ban or background checks to be performed. Before all else, we must begin rowing in the same direction, and there is a way to accomplish this critical first step: liability. We do not mean liberalizing ordinary private liability, with the attendant lawsuits, discovery, and punitive damage awards. Rather, we propose an unambiguously required and automatic payment by a gun manufacturer to a special fund after one of its guns causes a death. In particular, subject to some details discussed infra, for each person killed by a gun, the gun’s manufacturer would pay $6 million to a federal fund administered by the Centers for Disease Control.

Calling for liability rules in response to social harms may hardly seem novel or sufficient. This reform, though, would not be the end of our effort to stem gun violence, but a necessary beginning that would unlock further rational policymaking. If a substantial portion of the costs of gun violence fell on gun manufacturers, two things would follow. First, and more conventionally, manufacturers’ cost-benefit calculations would drive them to manufacture guns less likely to cause deaths that would lead to payment obligations. But we do not advance this proposal as a means to achieve some sort of law and economics ideal of an “efficient” amount of violence. Rather, the second and more important effect would be a political economic one, turning gun manufacturers from the fiercest opponents into advocates for effective regulations concerning background checks, gun attachments and ammunition, retail sales, and other potentially violence-reducing targets.

There is a bit more to our proposal than this, though. Billing the gun industry for even a modest portion of the social harms it creates would almost surely bankrupt it entirely. A Pigouvian tax would be, as things now stand, a death sentence. Even with the discounting we will propose, the total liability at current levels of gun violence would amount to well over $120 billion on an industry whose domestic private sales revenues are probably less than $20 billion. It is doubtful gun manufacturers could raise prices and alter designs and sales to achieve a reduction in liability sufficient to survive in the short term.

The obvious and normal response to this concern is that imposing liability only reveals a basic economic truth that has existed all along. The industry is not worth its costs. If its customers would refuse to pay prices sufficient to cover all the costs of manufacture, including the cost of violent deaths, then the market in its aggregate voice is telling us not to manufacture guns. One of us favors listening to this voice, but we live in a country in which many do not and in which they cite a Second Amendment they strongly believe requires private gun availability in fact and not only in theory.

This, then, is the second part of our proposal: a Gun Subsidy. From the base, per-death liability payment following a gun death, the CDC would discount at a rate calculated at regular intervals to permit the continuing manufacture of weapons adequate for self-defense within the meaning of Heller v. District of Columbia, while continuing to apply adequate pressure on manufacturers to reduce gun mortality. The amount of the subsidy should represent that portion of our collective valuation of the availability of the Heller right that is not reflected in individual acquisitive preferences.

The combined effect of these provisions, manufacturers’ strict liability to a fund and the Gun Subsidy, is to make at least somewhat explicit what is now entirely implicit and, in fact, invisible in its budgetary implications. Guns cause pain and death even as they bring pleasure to those who enjoy them. We now count that pain and death as no cost at all when collectively deciding through the market how many and what kinds of guns to manufacture and to whom to distribute them. Just as a particular gun cannot be made without acquiring and charging for metal and labor, so too its manufacture and sale cannot be severed from the deaths it will cause or from the collective enjoyment of the constitutional right its availability has been deemed to protect. And yet neither of these latter two values is priced, considered, or widely known.

In the first Part, we describe the mechanics of fund liability. In the second, we summarize its main justifications, averting to standard tort theory (and the additional benefits of this proposal over private tort suits) and to liability’s political economy consequences. In the third Part, we discuss some implementation details. And in the fourth, we argue that the fund would not violate the Second Amendment, as it was understood in Heller, or other constitutional provisions

The Proposal

Guns are the means by which almost 40,000 Americans die each year. 40,000 is a useful number as a yardstick of risk in the United States. It’s roughly the number of people who die annually in car accidents. It’s a little less than the number of people who died from opioid overdoses in 2016. It is about the number of suicides. It’s a little more than the total of all pre- and post-natal infant deaths. It’s roughly a quarter of all deaths from all accidents. And it’s between one and two percent of all deaths. These figures are approximate, but 40,000 deaths seems to mark the cost of one social problem after another.

It seems an understatement to note that Americans have widely varying intuitions about the costs and benefits of gun ownership. The best evidence is that keeping guns is, all things considered, somewhat risky. That said, we all do lots of risky things, and if the worst risks guns imposed was a heightened risk of suicide and accidental death, then maybe gun ownership would fall in the same category as smoking or motorcycle riding: things most people believe adults should be able to do if their eyes are open to the dangers.

But guns impose enormous costs that are not born entirely by gun owners and not at all by gun manufacturers. These costs are measured in medical bills, death, and grief. The one thing everyone can agree on is that this level of suffering is horrible and that it would be good to eliminate it.

What we tend not to agree on is how to measure the benefits of gun ownership. One of us would, if he had no humility about the importance others might attach to guns, would ban them entirely and even confiscate the existing stock without compensation. He believes guns are not even close to being worth their cost, that they make safety-obsessed owners much less safe, and that the fantasies they engender of fending off either bad guys or (even more ludicrously) a tyrannical government are unhealthy. But he does understand that have important and unknown-to-him meanings for others and that more careful analysis of the “how maintained” and “what kinds of guns” questions could, possibly, point toward an acceptable regime of private gun ownership.

It is precisely in such a circumstance–large but uncontroversial costs offset by controversial and pluralistically understood benefits–that a tax of some form can decentralize the production and distribution questions in a manner less injurious to the public good. Asymmetrical uncertainty is not an obstacle to good public policy. We need not know “the one right solution” to optimal gun production and distribution to make a boring suggestion that will help us all: If gun manufacturers had to pay the costs of gun deaths, then many good things would begin to happen.

Our proposal:

1. Automatic Liability to the Gun Safety Fund: Gun manufacturers are required to pay $6 million for a death caused by a firearm they manufacture. The manufacturer would be liable not to a private party but to a federal fund, which could be called the Gun Safety Fund and be administered by the Centers for Disease Control and Prevention. Liability would be automatic and avoided only when the death is the result of a legitimate use of force by a law enforcement officer or an exercise of justifiable self-defense. Such defenses to payment could be raised in an administrative hearing before the CDC (and appealed from there as any other administrative adjudication). There would be no private plaintiffs’ attorneys, no fights over punitive or compensatory damages, comparative negligence, discovery, or any of the usual but often necessary sources of inefficiency in litigation. The form of liability would be closer to a death tax than a tort judgment.

2. The Gun Subsidy: The CDC will be charged initially with determining an amount that will be refunded to the manufacturer following payment to the fund that is necessary to preserve the practical availability of guns to be kept for purposes identified in Heller as protected by the Second Amendment, erring on the side of over-subsidizing. Every two years, the amount of the subsidy paid as a refund will be reduced by 2%, unless the CDC determines there is a reasonable likelihood that production would fall below the Heller baseline described above. The upshot is that after a century the subsidy would be a little more than 1/3 of its initial amount. The CDC will annually publish and publicize statistics gathered on gun violence and highlight the amount of the year’s Gun Subsidy.

The details, of course, matter. For example, we would make the findings of responsible medical examiners concerning which gun caused a death (and whether it did) conclusive for these purposes, and it would be a federal offense for any agent of a firearms manufacturer to attempt to influence such an examiner. We would also discount the payment owed for gun suicides, not because such lives are less valuable but to require payment only for the excess number of successful suicides caused by guns. That is, the payment would reflect the number of suicides over and above what that number would have been if only alternative methods of suicide were available. We would also require a quadrennial determination by the CDC of this figure through the normal informal rulemaking process. These and other details are covered more fully in Part II.

Fund liability is not intended to be a perfect Pigouvian tax. At each point, we have chosen to calculate the liability using lower bounds. The total amount of the payments we propose would be dramatically less, in aggregate, than the cost of actual harms flowing from the use of guns. For one, it would only require payment for deaths and not for injuries, which number more than twice the number of deaths. And $6 million is less than what most agencies identify as the monetary value of a human life for cost-benefit analysis purposes. But perfect internalization of externalities, a theoretically dubious proposition for reasons well-trodden by Ronald Coase, is not the point. Any significant tax on manufacturers that scales with death will lead manufacturers to take some steps to reduce the tax, both manufacturing and political. It is the direction of social effort that concerns us most, not accounting.

Even this heavily discounted cost internalization, however, is likely too large for the gun industry to absorb. Gun manufacturers’ total revenues from private sales in the United States are probably around $15 billion and almost surely less than $20 billion, with profits of just a billion or two. Even if we assume a total discounting of suicide deaths and that payments would be owed for only half of other deaths, say 6,000 of the 40,000 gun deaths, the aggregate payment would be $36 billion. Despite low-balling the harms again and again, the industry does not come close to being able to cover the costs it imposes. The Gun Subsidy must, therefore, initially be massive if the industry is to be kept afloat. Reducing the subsidy over time, with some degree of certainty, will enable the industry to plan, redesign, alter marketing, work with state governments to implement better laws, and perhaps to participate in gun buy-backs. The responses are difficult to predict as non-experts, and that is the very point.

Benefits

A. Standard Tort Theory

First, the obvious: If manufacturers must pay for deaths caused by guns they manufacture, at least some of the costs of gun violence, accidents, and excess suicides would be spread over all gun owners rather than born primarily by victims and secondarily by society at large. That seems both fair and an appealing political argument in favor of shifting costs. Why should victims pay for the downsides of gun ownership? Why should we subsidize gun manufacturers who stand alone in reaping all the profits of their activities but not a very substantial portion of their costs? Higher retail gun prices would result from the automatic payment regime, and these higher prices would reduce the rate of gun ownership, but only rationally so. Of course, if you can manufacture a safer gun, it will incur less liability and so can be made cheaper. People will therefore be more likely to purchase safer guns.

All this is a traditional sort of argument for strict liability. Put the costs of injury on the entity that could most cheaply avoid or minimize them and you wind up with a system that more optimally balances costs and benefits. And so, on this ground, we might be inclined to repeal the Protection of Lawful Commerce in Arms Act, which, with some exceptions, shields gun manufacturers and dealers from liability for injuries arising from crimes committed with their products. We do not favor that and believe that the automatic CDC payment should be the exclusive form of liability.

[Reasons include the benefits of regularized expectations for manufacturers, more immediate cost imposition, reduction of transaction costs, the fact that compensation is a possible use of the Fund, additional certainty may breed more stable changes in manufacturer political behavior, etc. More to come here. ]

This novel form of liability is not designed to achieve the most “economically efficient number of gun deaths.” We both believe the right number of such deaths is zero. But while there are many possible solutions to reducing gun violence, our nation has eschewed all of them. For this reason, we would settle for less than optimal. Our problem is getting anything at all done in the face of powerful incentives to do nothing. To do so, we could try to get the gun manufacturer to think differently about its social role. And that, rather than mere cost-consciousness in its role as vendor, is the most important virtue of this proposal.

B. Political Economy

The payment regime’s most important effect, and one that we hope would have positive spillover effects on other political issues, would be to make gun manufacturers willing participants in social efforts to stem gun violence. When you are the one who will pay the cost of a bad outcome, you become directly concerned with preventing that outcome. Liability gives us a chance to flip the prevailing political script and to get those who know these weapons best to think hard about how to stop their being used to kill in large numbers.

Yes, manufacturers would seek to manufacture safer guns and to advertise and market in ways that minimize the risk of death. These are the vendor-specific effects of a tax. But they would also be far more likely to advocate for state and federal legal restrictions on gun ownership and sales, background checks, enforcement, and public health research. For the riskiest guns, manufacturers might support or even engage in gun buy-backs.

Because it is uncertain, especially from the perspective of those of us unfamiliar with guns and their manufacture, what the most effective mix of regulation and prohibition might be, we should align incentives so that those who do have expertise reveal it. To be clear, we shouldn’t tax gun deaths because we think that the amount of the tax is what life is worth. Nor is the purpose of a payment requirement to suggest that a manufacturer’s moral duty to the killed and maimed has been discharged with a financial transaction. Rather, the goal is to alter the organization of social forces in such a way that we, both gun violence prevention advocates and gun enthusiasts, begin to strive for the same goal, even if we continue to disagree about means. By putting some of the costs of guns back on their manufacturers, there might even arise a new National Rifle Association that is committed to researching and identifying effective regulations. After all, manufacturer lobbies lobby for manufacturers.

There is, we believe, potentially a further benefit of this proposal, though it is harder to quantify. While many of us may not be able to imagine making a living manufacturing assault rifles, people are different. We cannot ignore that people do in fact make these weapons for reasons that others may not completely understand and that they do in fact pay nothing for the deaths that result from their work. Internalizing these costs could change the way gunmakers understand their work, perhaps, helping them break free of the ideologically pure and oppositional politics that have corrupted their relationship to the community. Forcing a change in conceiving of the social effects of one’s business from “not my concern” to “my job is making sure that never happens” is a laudable goal on virtue ethics grounds. And while forcing payment will in the first instance change incentives, it just might, in the second instance, change minds and attitudes.

[Administrative implementation details and analysis of Heller will follow.]

A civilization cannot long exist that fails to respond deliberatively to urgent social problems. It is a damning indictment of ours and a great challenge to our existence as a great democracy that we did not respond to the mass-murder of twenty first-grade students in their classroom and six teachers and school workers. And the murders have continued. Democracy is hard work, and ours must find a way to ensure that social problems are perceived, that deliberation is had, and that efforts to solve them are implemented. The process of perceiving, considering, and responding, after all, is what distinguishes the actions of an intelligent being from the mechanics of a clod of earth.

The proposal here is optimistic. It posits that we can be better collectively if only our decision-making were organized in such a way that we engage the proper facts and lacked incentives to treat others as valueless. Perhaps we are wrong, and our worst instincts resist the moderating influence of political structures engineered to bring out our best. But it is worth trying to become better.

The Way Forward on Supreme Court Appointments

The nominations process for the Supreme Court is broken. Whatever the origins of this crisis, it reached a point of no return when Mitch McConnell determined that the Senate would refuse to consider any nominee put forth by then-President Obama to fill Justice Scalia’s seat. All pretense of a norm of deference to the President on appointments having been abandoned and a total commitment undertaken to do whatever it takes to dominate the Court, McConnell cemented us to a nominations regime of pure and naked calculation. There is, of course, no last strategic act, and a rational response to McConnell’s gambit is to appoint enough justices to achieve a progressive majority as soon as progressives take the White House and Senate. And then, one should expect the same response from conservatives. Ian Ayres and John Witt have suggested expanding the Court temporarily in a rebalancing move. But I’m skeptical, for a number of reasons having to do with legal realism and the nature of the GOP coalition, that we will ever return to a stable, norms-guided regime.

Nor should we. Just as there’s nothing right about McConnell’s historical obstruction, there’s also nothing particularly right about the fact Justice Scalia’s seat became available in 2016 rather than 2017. It is not based on any principle of justice or democracy that a member of the Court should die in one year rather than another. It is difficult to identify a theory of representation that the current appointment procedure serves well. If you think, as I do, that justices should represent the people as they are constituted over longer stretches of time than legislative or executive politicians, then you would want them to serve long terms and to be insulated from reprisals and incentives from those shorter-term representatives.

But with longer lives, relatively young appointees, the ability strategically to retire, and the fact that nine is small number relative to a justice’s expected term, the Supreme Court does not meet this representational desideratum. When President Trump’s appointment is seated, conservative justices will maintain their 5-4 majority on the Court. Since Justice Thomas was appointed in 1991, Republicans have controlled the White House for about 11 years. Democrats have controlled the White House for 16 years. Conservative justices have held a 5-4 majority on the Court for every moment of those 27 years. One could of course add to the years of Republican control any number of years prior, but that hardly justifies single-party domination of the Court unless one takes a curiously specific position on the temporal distribution of control of the two branches. More importantly, though, I raise this only to suggest that it is difficult to defend the current practice of lifetime appointments to a very small body, where turnover is either gamed or the random product of death. McConnellism is merely the nail in the coffin. Our fundamental problem is that appointments are either strategically or randomly available and that they are so few that their wattage overwhelms our politics and, lately at least, has caused us to be far less than our best civic selves.

To do better, we need a neutral plan that makes control of the Court turn on future elections and that contains a transition rule acceptable to both sides. That’s why I’ve proposed a 28th Amendment, the text of which you can read here. Solving this problem has three critical components: (a) a workable institutional structure, (b) a reliable appointment procedure, and (c) a clear and acceptable transition procedure. I intend with this amendment to provide all three.

Here are the key institutional features:

• The Court will have 18 justices.
• Each justice serves an 18-year term and then becomes available to sit by designation on lower courts or to do other work within the judiciary. So life tenure in the judiciary is preserved, but a life-long seat on the Court is not.
• A justice departing early is replaced by the usual appointment procedure but only serves the term of the departing justice.
• The Court may hear cases in panels and en banc.
• Larger numbers decrease the importance of each individual justice, and the potential for a tie is a feature and not a bug.

And here is the appointment procedure:

• Each year, the president nominates a justice to replace the outgoing justice.
• The Senate may reject a nominee within 45 days of nomination if at least 60 members vote to do so. The Senate now has a time limit and must act affirmatively to block an appointment.
• After three rejections, the Supreme Court will review the nominees and return to the Senate its judgment as to which nominees are professionally qualified. It will continue to do so for each nominee thereafter.
• Once there are three Court-certified nominees, the Senate has 30 days to pick one of them. If it fails to do so, the president can pick any one of the three without Senate approval.
• Upshot: there is a check on the appointment of the corrupt and the crazies, but the president will almost certainly achieve an appointment each year.

The most critical element of any restructuring of the Court is a transition rule to which otherwise antagonistic parties can agree. The rule I propose keeps the current members of the Court and treats them as though they had been appointed according to the above system. The additional vacancies will be filled, proportionately and separately by each of the political parties in the Senate. It may sound complicated at first, but the guiding light is that it generates a Court that reflects control of the White House during the 18 years prior to adoption. Here’s how it works:

• Justices appointed more than 18 years prior to ratification are treated for purposes of the term limit as though they had been appointed at the earliest possible date by the president of the same political party that had appointed them. This would go in order of seniority so that the most senior Republican-appointed justice would be deemed to have been appointed in the first possible year he could have been appointed by a Republican president. And so on.
• Justices appointed within the past 18 years will be deemed appointed in the year they were actually appointed, but if that year is unavailable then the next year in which there is a same-party vacancy. If there is more than one such justice, the first appointed will be deemed appointed in that year. In other words, we fill out the available slots by seniority, working forward from each justice’s actual appointment year. If there is no vacancy, then the most senior justice of that party is deemed retired and the process is begun again. Any justice who cannot be assigned an appointment year by this method is deemed retired.
• Actually applying the procedure makes it plainer. If the Amendment were adopted now, we would need justices to fill slots beginning in 2001 and ending in 2018 (18 justices, one per year). We begin by assigning appointment years to the justices appointed more than 18 years ago: Thomas, Ginsburg, and Breyer. Thomas is the most senior and is a Republican appointee. The earliest available slot for a Republican appointee is 2001, when George W. Bush was president, and so Thomas is deemed appointed in 2001 and would step down in 2019. Ginsburg would be deemed appointed in 2009, the first available appointment year for a Democratic appointee. Breyer, then, would be deemed appointed in 2010.
• Next, we turn to the justices who have been appointed in the past 18 years. Roberts was appointed in 2005 and Alito in 2006. Both of those years are available, and so both are deemed appointed in their actual appointment years. Sotomayor was appointed in 2009, but that year is unavailable, because Ginsburg has been deemed appointed in that year. The next year in which there is a same-party vacancy is 2011, because Breyer has been deemed appointed in 2010. Thus, Sotomayor will be deemed appointed in 2011, and Kagan, because she was appointed in 2010, will be deemed appointed in 2012. Gorsuch’s actual appointment year is 2017, and that year is available, as is 2018 for any Trump appointee filling Justice Scalia’s seat.
• We now have nine vacancies corresponding to various appointment years. These would be filled as follows. Any vacant appointment year will filled by a justice selected by a majority of Senators of the same political party as the president for that year. So Senate Republicans would make appointments for the years 2002-2004 and 2007-2008, and Democrats for the years 2013-2016.
• Note that the procedure above handles more exotic configurations of the Court, sometimes forcing retirements, but always matching the political composition of the Court with control of the White House during the prior 18 years.

Here is the transitional Supreme Court:

• 2001: Thomas
• 2002-2004: 3 new Senate GOP appointees
• 2005: Roberts
• 2006: Alito
• 2007-2008: 2 new Senate GOP appointees
• 2009: Ginsburg
• 2010: Breyer
• 2011: Sotomayor
• 2012: Kagan
• 2013-16: 4 new Senate Democrat appointees
• 2017: Gorsuch
• 2018: new Trump appointee

In 2019, Thomas steps down and is replaced by a Trump appointee. In 2020, the first new GOP Senate appointee steps down and is replaced by a Trump appointee, etc. The result is that GOP-appointees would hold a 10-8 majority until 2021, when the new president would begin making appointments. This preserves the status quo until the next presidential election, on which a Supreme Court majority will turn in predictable fashion. But, also, with greater numbers there is the chance that political majorities on the Court will be more tenuous and less ideologically rigid.

I believe that the nominations crisis that became impossible to ignore with the blockade of Merrick Garland presents an opportunity to create a more representative Court and an appointments process less prone to degrading our political virtues. My amendment is one way forward, and I would love to debate its merits and alternatives.

Amendment XXVIII: A First Draft

Section 1. Article III, Section 1 is hereby repealed. The authority granted in Article II, Section 2 to the President to nominate and to appoint, by and with the advice and consent of the Senate, judges of the Supreme Court is hereby revoked.

Section 2. The judicial power of the United States, shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The Supreme Court shall have the power to hear cases before panels of some of their number and en banc, according to procedures it establishes. A resolution by a panel of the Supreme Court shall be deemed a resolution by the Supreme Court, unless it thereafter reviews the resolution en banc.

There shall be eighteen Justices of the Supreme Court, each of whom shall serve an eighteen-year term as an active Justice. Thereafter, a Justice may continue to serve by designation on lower courts and otherwise to support the judiciary. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 3. Upon a vacancy on the Supreme Court, a Justice shall be appointed by the President after nomination, unless the Senate disapproves by a vote of 3/5 of its number within 45 days of notification of the nomination. In case three nominations for a vacancy are disapproved, the Supreme Court shall pass on the professional qualifications of the disapproved nominees and any disapproved nominees for the vacancy thereafter. When the Supreme Court has returned to the Senate three qualified nominees, the Senate shall have 30 days to confirm the appointment of one of them, else the President shall appoint from among them.

A Justice who, by reason of death, retirement, removal, or otherwise, departs active service before the end of the Justice’s eighteen-year term shall be replaced according to this appointment procedure, except that the appointee shall serve as an active Justice for only the remainder of the departing Justice’s term.

Section 4. A Justice serving at the time of the ratification of this Amendment and whose term has otherwise expired shall, in order of seniority, be deemed to have been appointed in the first year during which the presidency was held by the same political party as the Justice’s appointing President and in which no Justice senior has been deemed appointed. If there is no such year, the Justice is deemed retired.

Any other Justice shall, in order of seniority, be deemed appointed in the year the Justice was in fact appointed, but if another Justice senior has been deemed appointed that year under this Section, then the Justice is deemed appointed in the next year during which the presidency was held by the same political party as the Justice’s appointing President and in which no Justice senior has been deemed appointed. If there is no such year, then the most senior Justice appointed by a President of the same party is deemed retired and the appointments shall proceed under this Section without that Justice.

There shall be a transitional appointment procedure by which any vacancies that exist at the time of ratification are filled. For any year of the 18 years prior to ratification in which no appointment was made or deemed made by this Section, a majority of those Senators belonging to the political party of the President in office for the largest portion of that year shall appoint a Justice, who will thereafter be deemed to have been appointed in that year. Any vacancy arising within two years of ratification from the retirement of a Justice serving at the time of ratification shall be filled by this transitional procedure if the Justice's term has not expired.

References in this section to political parties do not create any novel structural role for political parties other than expediently and acceptably constituting this transitional procedure.

Overcoming Gun Violence

[Note: This post elaborates an idea Joe Miller and I explored on an episode of Oral Argument. That discussion is in places more detailed and in places less.]

This American carnage, as the president put it on the occasion of his inauguration, can indeed stop. While it is unrealistic in a country of over 300 million to believe we can eliminate all interpersonal violence, it is equally absurd to insist that mass shootings and thousands of gun suicides are as inseparable from our landscape as oxygen. To shout down even the possibility of change is not only ignorant and unimaginative, it’s callous.

To say that there is no solution to this new and deadly parade of spectacular violence is a grievous insult to all those who struggled before us, and against much greater odds, for justice and for survival. Our founders, our revolutionaries, our heroes, from Washington to Harriet Tubman to Lincoln to MLK, of course they didn’t end forever the risk of upheaval or destroy for all time all social ills. But they gave to us a fighting chance, one that is now ours to blow. Have we grown so inept and passive that the instant an actual challenge confronts us we pronounce the task politically insurmountable? Again, what a shocking insult such an attitude is to those who have come before us. We must not only try to fight evil in our time, but, more fundamentally, we must resolve to organize ourselves to do so. And we can.

Our primary problem here, as with too many other issues, is not one of human nature but of social organization. The minds and experience that could be directed to reducing gun violence are instead consumed with fending off any and all gun regulation. This dynamic has caused extensive damage not only to victims of violence but also to our body politic. I do not believe in seeking an end to politics, a perpetual bipartisanism. No, it’s important and good that we disagree with one another vehemently about things that matter. But the gun debate has become so caricatured and at the same time so stagnant that it has fostered in too many of us the insidious belief that our greatest problems are beyond our ability even to address. From it has grown a cynicism that politics cannot ever be responsive to social problems. The gun debate is a cancer that has spread to other vital issues, and it must be cured.

I propose a first step that centers directly on the political problem. It is not a suggestion of guns to ban or background checks to be performed. Before all else, we must begin rowing in the same direction, and there is a way to accomplish this critical first step: liability. Not private liability, with lawsuits, discovery, and punitive damage awards, but an unambiguously required and automatic payment by a gun manufacturer to a special fund after one of its guns causes a death. This change would not be the end of our effort to stem gun violence, but a necessary beginning that would unlock rational policymaking. A civilization cannot long exist that fails to respond deliberatively to urgent social problems. It is a damning indictment of ours and a great challenge to our existence as a great democracy that we did not respond to the mass-murder of twenty first-grade students in their classroom and six teachers and school workers. And the murders have continued. Democracy is hard work, and ours must find a way to ensure that social problems are perceived, that deliberation is had, and that efforts to solve them are implemented. The process of perceiving, considering, and responding, after all, is what distinguishes the actions of an intelligent being from the mechanics a clod of earth.

I Don’t Know Anything About Guns

Guns are the means by which almost 40,000 Americans die each year. 40,000 is a useful number to use a yardstick of risk in the United States. It’s roughly the number of people who die annually in car accidents. It’s a little less than the number of people who died from opioid overdoses in 2016. It is about the number of suicides. It’s a little more than the total of all pre- and post-natal infant deaths. It’s roughly a quarter of all deaths from all accidents. And it’s between one and two percent of all deaths. These figures are approximate, but – see here for details – 40,000 deaths marks one social problem after another.

Now if you’re a proud gun enthusiast, you and I are not going to have the same intuitions about the costs and benefits of gun ownership. The evidence is that keeping guns is, all things considered, somewhat risky. That said, we all do lots of risky things, and if the worst risks guns imposed was a heightened risk of suicide and accidental death, then maybe we could put gun ownership in the same category as smoking or motorcycle riding: things adults should be able to do if their eyes are open to the dangers.

But guns impose enormous costs that are not born entirely by gun owners and not at all by gun manufacturers. These costs are measured in medical bills, death, and grief. The one thing everyone can agree on is that this level of suffering is horrible and that it would be good to eliminate it.

I want to compromise. You see, I care nothing for guns. I know little about them other than what I’ve read and what I’ve learned watching PUBG matches on Twitch. I’m not a gun guy. If it were up to me and if I had no humility about the importance others might attach to guns, I’d propose we ban them entirely and that we confiscate the existing stock without compensation. Sounds extreme, right? Well, I don’t believe they are even close to worth their cost, that they make safety-obsessed owners much less safe, and that the fantasies they engender of fending off either bad guys or (even more ludicrously) a tyrannical government are unhealthy.

But I do understand that guns have important and unknown-to-me meanings for others and that more carful analysis of the “how maintained” and “what kinds of guns” questions could, possibly, point toward an acceptable regime of private gun ownership. How do we get there?

Automatic Liability to a Fund

If you suggest an assault weapon ban, gun people, in my experience, immediately assail the idea as ineffective and reflecting profound ignorance of what guns are and how they work. Whatever. I’ll concede that I just don’t know much about guns. I’m not the right person to decide whether and how guns and gun sales could be safer. But the beauty of economics and thoughtful politics is that I don’t have to know “the one right answer” to optimal gun production and distribution to make a boring suggestion that will help us all:

If gun manufacturers had to pay the costs of gun deaths, then a number of good things would begin to happen.

I propose that gun manufacturers be required to pay $6 million for a death caused by a firearm they manufacture. The manufacturer would be liable not to a private party but to a federal fund, which could be called the Firearm Safety Fund and be administered by the Centers for Disease Control and Prevention. Liability would be automatic and avoided only when the death is the result of a legitimate use of force by a law enforcement officer or an exercise of justifiable self defense. Such defenses to payment could be raised in an administrative hearing before the CDC (and appealed from there as any other administrative adjudication). There would be no private plaintiffs’ attorneys, no fights over punitive or compensatory damages or comparative negligence or discovery or any of the usual but often necessary sources of inefficiency in litigation. This would be closer to a death tax than a lawsuit.

The details, of course, matter. For example, I would make the findings of responsible medical examiners concerning which gun caused a death (and whether it did) conclusive for these purposes, and it would be a federal offense for any agent of a firearms manufacturer to attempt to influence such an examiner. I’d also probably discount the payment owed for gun suicides - not because such lives are less valuable but to require payment only for the excess number of successful suicides caused by guns – i.e., the number of suicides over and above what that number would be if only alternative methods of suicide were available. See, e.g., chapter two of Liza Gold, Gun Violence and Mental Illness. I’d perhaps require a bi- or triennial determination by the CDC of this figure through the normal informal rulemaking process.

This is not intended to be a perfect Pigouvian tax. The amount of the payment I suggest would be significantly less, in aggregate, than the cost of actual harms flowing from the use of guns. It would only require payment for deaths and not for injuries, which number more than twice the number of deaths. And the $6 million figure is less than what most agencies identify as the monetary value of a human life for cost-benefit analysis purposes. But perfect internalization of externalities, a theoretically dubious propositions for reasons well trodden by Ronald Coase, is not the point.

The Ordinary Benefits

First, the obvious: at least some of the costs of gun violence, accidents, and excess suicides would be spread over all gun owners rather than born primarily by victims and secondarily by society at large. That seems both fair and an appealing political argument in favor of shifting costs. Why should everyone and especially victims pay for the downsides of gun ownership? Why should we all subsidize gun manufacturers who stand alone in reaping all the profits of their activities but not a very substantial portion of their costs? Higher retail gun prices would result from the automatic payment regime, and these higher prices would reduce the rate of gun ownership, but rationally so. Of course, if you can manufacture a safer gun, it will incur less liability and so can be made cheaper. People will therefore be more likely to purchase safer guns.

All this is a traditional sort of argument for strict liability. Put the costs of injury on the entity that could most cheaply avoid or minimize them and you wind up with a system that more optimally balances costs and benefits. And so, on this ground, we might be inclined to repeal the Protection of Lawful Commerce in Arms Act, which, with some exceptions, shields gun manufacturers and dealers from liability for injuries arising from crimes committed with their products. I do not favor that and believe that the automatic CDC payment should be the exclusive form of liability. That’s because I think it would be a cleaner and more certain way to regularize the expectation of manufacturer cost.

I’m not suggesting this novel form of liability in order to achieve the most “economically efficient number of gun deaths.” There are many possible solutions to reducing gun violence, and we have eschewed all of them. I’d settle for less than optimal. No, our problem is getting anything done at all when there are powerful incentives to do nothing. And I want the manufacturer to think differently about their social role.

The Promise

The payment regime’s most important effect, and one that I hope would have positive spillover effects on other political issues, would be to make gun manufacturers a key and willing participant in stemming gun violence. When you are the one who will pay the cost of a bad outcome, you become directly concerned with preventing that outcome. Liability gives us a chance to flip the script and to get those who know these weapons best thinking hard about how to stop their being used to kill in large numbers.

Yes, manufacturers would seek to manufacture safer guns and to advertise and market in ways that minimize the risk of death. But they would also be far more likely to advocate for state and federal legal restrictions on gun ownership and sales, background checks, enforcement, and research. For the riskiest guns, manufacturers might support or even engage in gun buybacks.

Because I am not sure what the most effective mix of regulation and prohibition might be, I want to align incentives so that those who do have expertise reveal it. To be clear, we shouldn’t tax gun deaths because we think that the amount of the tax is what life is worth and that if you can pay then death is fine, but, rather, because it would alter the organization of social forces in such a way that we begin to strive for the same goal, even if we continue to disagree about means. By putting some of the costs on guns back on their manufacturers, we might even wind up with a new NRA that is committed to researching and identifying effective regulations. After all, manufacturer lobbies lobby for manufactures.

Questions

“What about the Second Amendment?” Read Part III of Scalia’s opinion in District of Columbia v. Heller. For example: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He also strongly suggests that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”

“Why do you equate the lives of children with money?” I do not. The purpose of a payment requirement is not to suggest that a manufacturer’s moral duty to the killed and maimed has been discharged with a financial transaction. Personally, I cannot imagine making a living manufacturing assault rifles. But people are different, and we cannot ignore that people do in fact make these weapons and do in fact pay nothing for the deaths that result from their work. I believe that internalizing these costs would force a change to the way they understand their work, breaking free of the ideologically pure and oppositional politics that have, in my view, corrupted their relationship to the community. Forcing a change in conceiving of one’s business from “not my concern” to “my job is making sure that never happens” is the goal. And while forcing payment will in the first instance change incentives, it just might, in the second instance, change minds and attitudes.

“But with this number of deaths, even discounting for suicide, the industry might be on the hook for over $150 billion!?!?” The costs of gun violence are shockingly high aren’t they.

“This is a ridiculous suggestion because gun manufacturers won’t be able to pay these astronomical costs and stay in business.” Drop absolutely everything else you are doing, find a quiet place, and think very, very hard about what you just said.

Lamentation

It’s not that death is unexpected. Even untimely, it demands acceptance. Perhaps the most odious snark is to criticize how others mourn a passing. I won’t do that. This year of avulsion has wrenched our future from the familiar channels of our politics, our nostalgia, and our efforts to mean something.

Deaths aren’t the only occasions for existential confrontation with ourselves. Maybe we’re struck upon seeing the surface of another planet or reading about the sterilizing jets of a gamma ray burst. But these only extend to further realms of the unimaginable the truth we learn more directly when struggling through the sands and forests of terrestrial wilderness: We are not the universe’s conceptual center. What is yet still harder won is to feel, rather than just to think, not that we are within the universe but that we in fact are the universe, our separateness an illusion and our sensed connections a pale but suggestive reflection of reality.

Jedediah Purdy warns against taking too far the belief that reality is a continuous fabric, its people, rocks, and stars not discrete phenomena but conceived as such by the mind - and this, the mind’s construction, as much an undifferentiated ripple as falling rocks or calving glaciers. As he puts it, we may be tempted, especially in this moment, to combat the myopia of self-interest by believing “biological identities are possible only because of aliens within us, the bacteria and portmanteau cells that form our so-called selves.” But this, he reminds us, is “inadequate because it does not take seriously ... that democratic community is utterly real, as real as dirt, because we are trapped in it, because the facts we majoritarian bandits choose become the facts we live with every day.”

And that is indeed the brute fact, that we do suffer, that we do fear, and that we do thrill and love. Even though we are the universe, this universe that we are imagines alternatives to the causes and effects that mark its temporal shape. It imagines joy and suffering, the very real, grounded states we believe are our own. In culture, as well as in law, it expresses as a humming multitude of minds all aware of one another, a hall of mirrors.

The deaths this year have come as repeated blows to this collective imagination. So many talents, so many hauntingly beautiful and wonderfully flawed people have left us. They stand in even greater relief against the electoral victory of Trump, a triumph of fear over imagination itself. His toddler instincts are so obviously the unrepressed failures of introspection that we all sometimes recognize bubbling up within ourselves. He secretes them as infantile demands to be adored, to be the most powerful, and to get the last hit, demands the rest of us usually damp through inner, reflective conversation. It feels too much to bear that his repeated, embarrassing blatherings are treated as important, even as we mourn the passing of adult lives of such full scope.

From music, to art, to science, to film, and even to goofy TV shows whose decades-old cathode beams still illuminate our adult minds, our culture and its pioneers are shadowy representations of the true fact of our togetherness. Their genius is ours. Their failings, ours. To say this is to engage in more than collective claiming, it is to restate the ultimate truth. While our universal body regularly sheds its skins, mostly escaping similarly universal notice, we find ourselves now ridden with cancer and wishing them back, that our body would cease its sloughing and keep warm by a hearth we wish were there.

A Politics of Decency

The greatest pleasure of my career as a law professor has been engaging with students and colleagues of diverse ideologies and backgrounds. I don’t just tolerate those who hold opposing policy preferences and core beliefs, I love them, and I have been deeply affected by conversation, laughter, and serious argument with so many. I hold no grudges and demand no deference, but I also pay the respect to those whom I teach and teach alongside not to pretend that I have no commitments or opinions. We are stronger not in spite but because of such frankness when it is accompanied by good will. I write now because this central experience in my life and the very promise of an enlightened Republic are, I fear, in grave danger. But we can do this together.

Donald Trump is immoral and indecent, and both his authoritarian tendencies and his narcissism threaten our values and institutions. I have been greatly heartened at various points along this darkest timeline by the many decent conservatives who have stood up and said no.

Take Evan McMullin, with whom I respectfully but adamantly disagree on issues ranging from the causes and significance of the national debt, health care reform, and guns. Evan, though, has been the leader we now need through his articulation of something more basic than these issues, something that should unite us all against Donald Trump. On Twitter, he has called out Trump’s conflicts of interest, his seeming alliance with authoritarians, and his lack of concern for the most vulnerable. His solution:

Now we have the opportunity, in fact the need, to claim the common ground that I know is there. That common ground is liberty & equality.

I agree. I propose thinking about our common ground in terms of the most essential way it rejects Trumpism and that encompasses a general commitment to liberty and equality: basic decency.

A politics of decency:

• rejects authoritarianism, even as it embraces meaningful disagreement concerning the metes and bounds of federalism and regulation;
• abhors sexual assault and misogyny, even as it recognizes differences in how best to combat these problems;
• will not stand for profiteering from public office, even as it contains a wide range of views on campaign finance and on the subtler questions of proper and improper influence;
• repudiates scapegoating the poor and vulnerable, even as its participants differ on the proper way to fund our civilization and the relative burdens that should be assessed;
• condemns lying to the people, even as it does not purport to deliver judgment on the trustworthiness of various conventional politicians and whether various instances of spin go too far;
• refuses to tolerate white nationalism and religious and sexual bigotry, the discarded ideologies that animated the most shameful and violent episodes of our past, even as the debate will continue over, for example, how best to overcome the badges of slavery and to be color-blind without also being blind to the lingering effects of racial castes;
• and stands against government officials who bully individual citizens, even as it encourages serious debate among its participants concerning the merits of their ideas.

Donald Trump is indecent. And if he cannot learn to stay within the guardrails of what decency requires, he must either be voted out in disgrace at the first available opportunity or impeached and removed should his transgressions go that far. We will not accept a lower bar for the conduct of Trump simply because the whole world’s expectations are already so low.

Instead, we will stand together, conservatives, liberals, and whoever, to demand that our local politicians and, especially, House representatives, hold Donald Trump strictly accountable to the demands of decency. We will attend our representatives’ town halls, participate in marches for unity, resist assaults on our core values, and help one another in the best traditions of our nation. And we will continue to do this even when some among us engage in anarchy or otherwise attempt to hijack our efforts to advance particular causes. We will condemn these distractions but not ourselves become distracted from doing what is necessary to preserve the soul of this nation.

I hope you will demand that we reject the emerging global axis of authoritarianism and that we not throw away so cheaply that which has taken 240 years of struggle to build. In basic decency to one another is the path to preserving that degree of liberty and equality we have inherited. And in that same decency, we will find the common ground on which to debate vigorously but with love how best to realize liberty and equality in the future.

Legal Theory 101

Over the past few years, I have developed and taught a course in basic American legal theory, or jurisprudence, covering legal realism, analytical jurisprudence, law and economics, critical legal theory, and, occasionally, other topics. The course asks, repeatedly, what we are doing when do law. A lot of what I do when I teach the course is to suggest to students just how much of what they assume about the practice of law is just that, unexamined assumption. Legal change, and even just excellent normal-science lawyering, occurs only when one understands the social phenomenon of law a little more deeply than as a set of static rules to be mastered.

In 2016, I began to offer this course online to our students. The in-person version of the course comprised twice-a-week seminar meetings. For the online version, I recorded a podcast series discussing the readings and asking some questions. The students would listen to the week’s episodes in advance of an online, 100-minute meeting. Like all courses, this one may not be for everyone, but I’ve enjoyed putting it together and have been pleased with the resulting feedback.

I’m making the syllabus and podcast available to anyone who might be interested. So here is Legal Theory 101. Feel free to make use of the syllabus and materials in any way you like. If you’re a teacher who winds up using some or all of the audio, it’d make me happy to hear from you. I’m always delighted to engage and talk about these matters!

True Love Waits

I'm not ready to say anything more about A Moon Shaped Pool than that yesterday, see previous post, I wrote:

True Love Waits (live). A straight-ahead acoustic ballad. "I'm not living. I'm just killing time." It works. This is one many fans have hoped would be finished in the studio. I also have a fan-made version that combines various live performances and an arpeggiated synth pattern that I really like. We'll see.

and today we got True Love Waits as the emotionally overwhelming closing song on a riveting album. "Just ... don't leave."

All My Radiohead

Radiohead's ninth album will arrive tomorrow at 2 p.m. where I live. Today, I'm going to listen to every album and EP that I have. I'll record some thoughts here. I'm going to start with Pablo Honey, to which I've only listened a few times. I'll end with the Spectre single that was released on Christmas Day 2015. It should be roughly eight and a half hours of music. All this is stream of consciousness. So, there will be typos - and bad writing.

Pablo Honey

May 7, 2016, 10:15 a.m.: And we're underway with the electric guitars of You. And I'm back in 1993 listening to 107.7 K-NACK as I pass through Austin on the way to backpacking in the desert. More soon.

10:20: Creep. Well, I should say first that this album is not why I'm a Radiohead fan. It barely contains any hint at all of what will be "so fucking special" about this band. The second track, Creep, is a bit of a hint. But, like the rest of the album, it mostly taps into a guitar-driven, youth-infused landscape that was cracked open for me by Nirvana.

I've always been the type to become obsessed with things. When I was a pre-teen it was Prince. Then, and it happened in one moment, I played Pink Floyd's Final Cut. And I was immediately obsessed with everything Pink Floyd. And Led Zeppelin. At some point, I was introduced to REM and saw them in concert on the Document tour in Clemson.

I was 21 in 1993. And moved to graduate school in Texas. In the summer of 1994, I did my first big climbing trip in the Northwest. The road trips were a big part of my life. And it just felt like my generation was coming into its own, our tastes, our music, our voices. It was such a freeing time. That's where the new alt-radio, Nirvana, Nine Inch Nails, and sleeping in the open air under the West Texas stars fit in.

Stop Whispering is a decent track. Now Thinking About You is playing. Yeah, it just seems to fit in to that early 90s zeitgeist without in any way transcending it. It sounds like a young group with talent who are trying to make music that will break through.

10:36: Anyone Can Play Guitar, now on to Ripcord. These are more interesting (nostalgic?) than I remember them. It's hard to hear them without thinking the Crash Test Dummies will come up next. I didn't own this album and am not sure when I first heard these songs. If I were a decent musician, maybe I'd be able to hear hints of future genius in here. But I don't, just the REM/Pink Floyd/punk melange of the early 90s, well-executed but not timeless.

10:43: "I will not control myself" from Vegetable. Love it. And now on to "I'm better off dead," Prove Yourself. A very, very Sugar vibe to this one. God, I'm liking these songs more than I thought I would.

10:51: Lurgee. This is a much more interesting album than I remember from earlier listens. Is the second half more compelling? Would it hold up as more than an archaeology of grunge? Here's the closer, Blow Out. This is another good song. I think if my 21-year-old self had bought this album, I'd have become obsessed with it. Yes, it's still beholden to conventions that hold it back. That will persist, to some degree, up until Kid A. But there are some good ideas in here. And focusing on the music, I'm coming around to it.

The Bends

10:58: We jump to 1995. I've been through a depressing period starting graduate school but now am in a much better place. I'm just about to become an activist within the Sierra Club and restart a local group. My wife and I have some good friends in Texas, and our trips to the desert and plans for summer mountaineering are omnipresent. Lots of trips into Austin.

I still wasn't a Radiohead fan when The Bends came out. I don't know how I missed it. I know I liked some of the tracks when I heard them. I just didn't buy it. And you had to buy CDs in those days. I think I was listening to a lot of REM, Tori Amos, Mazzy Star, the Pulp Fiction soundtrack, Cake, etc. in those days. Maybe just starting to dabble in Philip Glass.

Planet Telex is a good opening track, sounding so much more like Radiohead, at least conventional Radiohead, to me.

11:03: Now that we're hearing a much better hint of the specialness of this band, here's my theory. Good rock bands usually feature a member with unusual creative talent and other members who are good at their instruments. Special bands, those that transcend, are the ones that have two different, but unusually talented musicians. Many bands form among friends, and so there's no reason to expect that two creative geniuses will wind up in a band together. They're people who knew each other at school. But every now and then it happens. The Beatles had Paul, John, and George. REM had it. U2 has it. You can go down the list.

Radiohead somehow wound up forming around a bunch of gifted, creative musicians. And they complement one another unusually well. Jonny and Thom are a stunningly interesting combination of talents. And that's not to gainsay the talents of the other members of the band. This is not normal science.

11:11: Fake Plastic Trees. "She lives with a broken man..." "He used to do surgery..." These lines get me. This is a timeless song.

11:13: This is also one of those songs I heard in a movie that totally took me over. And it was Clueless, which we saw in the theater for some reason.

11:16: I've always liked Bones. It has that grungy verse-chorus structue, but it feels so realized and has musical turns that make me feel like I'm flying with it. And the guitar tweaks in just the right way. Again, none of this is near, for me, the genius of the later records, but there's a lot of great stuff here.

11:19: (Nice Dream). They can write melodies, and this one is just so great. And it's not just a throwaway verse and one hook-y line for the chorus. It's a continuous float. At least up until the guitars at about 2:30, which don't add anything for me. The easy guitars communicating and soft voice are pacific, but there are background elements of dread. Makes me think of How to Disappear Completely.

11:26: Partly in response to the 11:03 post, @crustopher on Twitter writes - "And to further your Beatles comparison, I've always felt the Bends/OKC/Kid A arc tracked that of Rubber Soul/Revolver/Sgt Pepper's." Interesting. I do think that there'd be a very tight symmetry if, say, Amnesiac had been their last album. From convention and popularity, to new directions and dramatic influence.

11:32: Bullet Proof ... I Wish I Was. Love this song. The noodly but focused guitar line that goes with the chorus. I do feel like that there's something more this song could do. Now on to the fade-in of Black Star. Love this song, too. The verse gets its hooks in. It's the chorus that feels more ordinary and takes me out of it. Best title though. You know, I remember so many songs from my youth where there'd be elements I wish could go on forever and conventional-sounding things I wish could be dropped. (I remember going to symphonies and wishing the tuning would go on forever, the individual and yet collective effort, bowing past one another and together. I loved that drone. And then the all-too-mathematically-perfect and crowd-pleasing bit of music would begin...) So this is one, where I just wish it were all verse.

11:42: Streep Spirit (Fade Out). Radiohead fans still love this one, and I do too. Like much of The Bends, it doesn't escape its time, but it reflects the band's embrace of a musical identity in the way Pablo Honey didn't. Well, maybe it does transcend its time. There's just so much to like on this album, as a great rock album.

Singles

11:48: Banana Co. and Talk Show Host. Banana Co. - the acoustic version - pulls the same thread as Fake Plastic Trees. Talk Show Host is excellent. It's original in its construction, sound, lyrics. You can live in it. "I want to be someone else." "You want me? Fuckin' then come on and break the door down. I'm ready." "Nothing. Nothing. Nothing." Nigel Godrich really came into his own with this one. I love songs that came before this one. But not like I love this one.

OK Computer

11:52: Yep.

11:53: This is the first Radiohead album I bought. (As I'll mention, and for reasons, I only really discovered Kid A and Amnesiac several years after their release.) It's now 1997. In a year, my wife and I will have our first son. I'm finishing a PhD and seriously devoting my time to environmental activism. At this point, I'm thinking about law school and a career as an environmental attorney. I'm writing local press releases about climate change (decrying the gag order in Congress that prevented agencies from even talking about global warming) and about the destruction of local creeks. And I'm reading lots of Ed Abbey, taking week-long trips in Canyonlands, lots to Big Bend, climbed Mt. Olympus, Rainier, failed on Baker, Shuksan, and Challenger. But these were the days.

And I bought this from the little CD shop across the street from campus. Listening at a time when I was diving into Philip Glass and local folk music. Kundun was about to come out. I was organizing evening star parties in the country for our local Sierra Club. Yeah, I'm trying, but I can't entirely recapture those days.

"What's this?" Needless to say, Paranoid Android is a great track.

12:03: "From a great height. From a great height. God loves his children." What must they have been thinking when they finished this track?

12:09: "Today, we escape. We escape." Exit Music (For a Film) is one of my favorite tracks here. The brooding space it creates for your own thoughts is classic Radiohead. Is this maybe the most post-Kid A tarck on the album? "Now we are one." Same music as the subdued "we escape" but so different. Interestingly, I've misunderstood the final lyrics to this one. I had always heard in my head "We all let you jump, let you jump" rather than "We hope that you choke." My misheard lyrics are... darker. And now on to Let Down, which at the time was my favorite track. Funny. I still like it a lot, but I wouldn't say it's my favorite at all. It has this driving techno-phobia to it - but that drive sweeps you along, a body out of control hurtling along a robotics-filled track.

12:18: Karma Police. "He talks in maths. He buzzes like a fridge." Looking ahead, this album ends so strongly. The only wrong note - and I'll see if I still think this - is Electioneering. Ideally it'd be Karma Police, Fitter Happier, Climbing Up the Walls, No Surprises, Lucky, The Tourist. Anyway, back to Karma Police. There's just such character in Thom's singing. And the song doesn't give a damn about rock norms. This is a band moving on. "For a minute there, I lost myself." Again, I rarely listen to the albums from before Kid A. This is so much better than I remember it, and I remember it very fondly.

12:21: Ha! I forgot I was listening to a rip of the very CD I used to own. And Karma Police skips where the CD was scratched. The nostalgia of remembered imperfection.

12:34: Yes, I don't think Electioneering fits. I remember not liking Climbing Up the Walls so much when I first had the album. But now, it's just so perfectly itself and creepy.

12:40: I still can't believe that No Suprises was basically the first take. Lucky starts as though it's the album closer. It sounds like a summation. "It's going to be a glorious day. I feel my luck could change." The little guitar breakdown near the end feels so right and interesting here, doesn't sound at all forced.

Singles

12:50: Meeting in the Aisle, Lull, A Reminder, Melatonin, Palo Alto, How I Made My Millions.

12:53: I'm up to Lull now, which is solid, if a bit standard for Radiohead. Melatonin and How I Made My Millions are two my favorite Radiohead songs. Radiohead B-sides would probably be my all-time favorite album if there had otherwise not been a Radiohead. And now up to A Reminder, which is a great song I guess I never listen to.

12:58: I'm not sure when I first heard Melatonin, but it wasn't until after my son was born. Maybe he was two? But "Don't forget that you are our son. Now, go back to bed." And the way the music so simply and earnestly marches lullaby-like. It's a secular prayer, a wish that resonated with me. Right up until "Death to all who stand in your way, my dear."

1:04: How I Made My Millions is right up there with the songs I most treasure. I read that this is Thom's demo, recorded at his house while his girlfriend can be heard unpacking groceries. "Let it fall." This song just feels like mournful yet joyous observation of life outside of itself - just let it. Anyway, I think different thoughts every time I hear it.

Kid A

1:12: The perfect album. The first time I heard the opening tones of Everything in Its Right Place, I was obsessed with Radiohead. Oddly, though, I didn't get this album when it came out in 2000. We'd moved to California for law school. I had a two-year-old, and my daughter would be born the month later. Money was tight, and there was no iTunes Store - and I didn't use Napster. So I just wasn't buying CDs around this time. I was listening to a lot of film music. And I think Magnolia, a PT Anderson film that looms large in my memory, came out the year before.

So it wasn't until we'd left California and moved to the East Coast that I, by chance I think, heard Kid A. That opening. I don't even know what to write. I've heard EEIRP and Kid A so many times, in so many contexts and emotional states.

Kid A, the track, is unlike anything I'd heard before. There's a more traditionally beatutiful song underneath the sonic treatment, but that treatment isn't obscuring - it's just perfect. "Standing in the shadows at the foot of my bed."

1:22: It defies explanation that this album became massively popular. I'm on The National Anthem now, and these just aren't the kinds of songs that you think would have mass appeal. But damn do they move me. And apparently many, many millions of others. This was the music I'd always wished other songs would be, shed of the guitar solo that was added because there was supposed to be a solo and shed of the standard form. How does one even describe what's so great about the ending of The National Anthem, the brass out of control but hitting all the right notes. Someone who also loved to hear the orchestra tune and sunk a little on hearing them start to play perfectly and formally, yes someone like that wrote these songs. And now How to Disappear Completely, the distillation of melody of dread that is a platform for one's own thoughts, how much less would this song be without the background drone? They got so much right on this.

1:32: Do you think some music exec listening to this for the first time and having heard the first four tracks was thinking and hoping, "Maybe there'll be guitars in Treefingers."

1:44: Reading old reviews of this album is hilarious. So many people rejected it. Crazy to think that it's now over fifteen years old. Idioteque is just starting - one of those that I knew instantly would be a favorite for a long time. I'd forgotten that I really like In Limbo, with its wandering notes, living in a fantasy. Curiously, it's Optimistic that seems ever so slightly out of place. I'm sure the label was thrilled to have something, anything, that could pass as a normal rock track. The album would work as well without it for me. "Here I'm allowed everything all of the time." Genius song, Idioteque, just works on every level.

1:55: So many details make these songs more than the sums of their parts. And this album so much more than the sum of its parts. Thom's repetition in the background for the last quarter of Morning Bell. And now Motion Picture Soundtrack, which just sounds like a closer. (And sounds a bit like what you'd have wished some Smashing Pumpkin song would have wound up. I forget the name of it.) "I think you're crazy, maybe." It's a band who, at this point, are just trying to make something great, as painful a process as it was. You can hear the purity of the motivation in every minute of this album.

Single

2:00: True Love Waits (live). A straight-ahead acoustic ballad. "I'm not living. I'm just killing time." It works. This is one many fans have hoped would be finished in the studio. I also have a fan-made version that combines various live performances and an arpeggiated synth pattern that I really like. We'll see.

Amnesiac

2:04: I actually think it was hearing my landlord's copy of Packt Like Sardines in a Crushed Tin Box, the Amnesiac opener, sometime in 2003?, that instantly hooked me on Radiohead again. Maybe I got Amnesiac and Kid A at the same time after hearing this track. I think I bought them on the relatively new iTunes Store. My iTunes suggests it was December 2002. Oh well, whatever it was, there is so much going on and yet such simplicity to this first track. And then into Pyramid Song. There are fluttering strings behind the dominant piano. "I jumped in a river; what did I see?"

2:16: Pitchfork's (otherwise very positive) review of Amnesiac says this about Pulk/Pull: "Powered by a gritty industrial beat, the song's intentional abstractness, for the first time ever, seems forced and caricatured." No. Now, into You and Whose Army? Yep, this is a band that had a fairly obvious route to cashing in after OK Computer. And we get this. The distorted vocals, so devoid of any vanity. Everything is in the service of plumbing the depths of seemingly everything. Then that guitar lick that carries the drone of I Might Be Wrong. Have I told you how much I love this band?

2:25: Knives Out is the most accessible song on the album, where that word accessible just means, I guess, that you can play for it someone who listens to pop music without risk that they'll hurt you in order to turn the music off. But it's also terrific. That mix of incredibly dark lyrics, uptempo beat, somber and stretched out vocal, the kind of "this is life going by" guitar jangle, it's so much more because of the relation among the details that compose it.

2:37: The sounds on Hunting Bears, the subtle whoosing behind guitars whose delay and percussiveness create this tension. It's all in the timing of the elements on this one. I could listen to twenty minutes of this. Now Like Spinning Plates. Drawn from a backwards version of another song they'd been working on (I Will, which appear later), they then recorded some of the vocals and some other elements backwards. The whole thing has trademark Radiohead dread overlying melody. "While you make pretty speeches, I'm being cut to shreds." Ending: "And this just feels like spinning plates. My body is floating down the muddy river." And finally into Life in a Glasshouse, which just comes from nowhere, well, maybe some kinship with the chaotic brass in The National Anthem. But this is New Orleans jazz in a loose, sad, grand, let's have it out, final reckoning.

Singles

2:49: Now seven singles before the next album. And I rarely listen to these, unlike the post-OKC group. But you know what? The Amazing Sounds of Orgy is damned interesting and amazing. The deep, tunnel like bass (reminds me of Burn the Witch at the moment), and the almost rotating quality of the duh - da-da-da - duh - da-da-da - duh. So good.

2:54: Fast-Track - yep, I'm down with it. The blippingly fast vocal sample. Trans-Atlantic Drawl is one that I think I usually skip over. Listening with fresh ears, though. There's a wickedly heavy electric guitar carrying the track, but it doesn't go anywhere unexpected. Ha! Yes it does. Totally forgot the synth interlude 1t 1:50. I love this part! Ok, ok, this is a cool track. I guess you could make two classic albums of Radiohead B-sides. Ok, on to Kinetic, Worrywort, and Fog.

3:00: You know what's absolutely great that I've not listened to nearly enough: Kinetic. Philip Glass-like vocal patterns, synth patterns that serve a purpose. Percussion that says its own thing. Yep, this one I'll come back to.

3:10: Worrywort and Fog. Fog is one of those Radiohead songs that's heartbreaking even if you're not sure why. I've heard some people say it's about children growing up among and within war. Or about children growing into evil generally. On to the divisive Hail to the Thief.

Hail to the Thief

3:20: This has some of my favorite songs on it. But it's also one that I almost never listen to from beginning to end. And it has songs that have brilliant parts that I wish had not been joined with other parts. Everyone, even the band I think, thinks about whether the tracking might have been better. The funny thing is that in instance after instance what some fans say is wrong with the album is exactly what other fans love about it. The album, as an album, doesn't rise above its parts, but those parts are excellent. And one person's fix is another's marring.

Even the opener, 2+2=5, which I think is great, has kind of a standard rock jam near the end. Would it have been better arranged differently? Maybe it depends on your mood. And the "raindrops" repetition in Sit Down. Stand Up. is something that is at times just the right thing and at other times not. It's like I wrote earlier, the thing about Radiohead for me is how in so many cases it appears their judgment about what was good and what they'd cut or re-arrange from the music I grew up with is the same as mine. That we identify very similar qualities as important in music. But on this album, there are a few instances where I'd cut and pieces of music that I wish could stand on their own. (There, there, e.g.)

I just know that I deeply love so many things on this album. (The last two songs especially.)

3:31: I definitely like the back half of this album more than the front. I can appreciate Sail to the Moon, Backdrifts, and Go to Sleep, but they don't move me. Getting into Where I End and You Begin now.

3:38: Yes, Where I End and You Begin ("I will eat you alive.") and We Suck Young Blood are both excellent, though definitely different from the Kid A / Amnesiac vibe. The latter, though, has a lot in common with Life in a Glasshouse - but with a lot of fascinating ornamentation, for a spare yet rich sound.

3:43: I love The Gloaming. I love the title. I love the bleeps, bloops, wandering vocal, the "they will suck you down to the other side." And the fact that it leads into There, There. There, There is one of the all-time great Radiohead songs. And I love it, the lyrics "singing you to shipwreck," and "Just because you feel it, doesn't mean it's there." I just wish it ended around the three-minute mark. It's the first part that works so well, lyrically, sonically. The jammy part, not as much.

3:53: When I first heard that Like Spinning Plates was I Will run backwards (or at least based on it), I was, well, surprised. I love I Will, kind of in the way I love All I Need from In Rainbows. They're earnest and meaningful, not elliptical in a way that totally leaves you with your own thoughts - another quality I love about some RH songs. Now on to Punch Up at a Wedding, which is fine but is not my favorite. Next will be Myxomatosis, which many people love, but I haven't really, at least before. Looking forward to Scatterbrain and Wolf at the Door, which would be on my desert island disc.

3:59: Yeah, I love Myxomatosis sometimes. The out front overloaded blasting line that carries through right up to the "I don't know..." part. And the synths working against the rest of the song. It feels like being lost and in trouble. Ok, Scatterbrain, which is just beautiful. I'll never understand why some fans don't like it. The vocals are set as if they're blown around, vulnerability and violence and, again, being lost. "I'm walking out in a force ten gale. Birds thrown around, bullets for hail. The roof is pulling off by its fingernails. Your voice is rapping at my window sill." It's one of those RH songs that feels inevitable and drives right through you. "Somewhere I'm not Scatterbrain."

4:04: But for the fact that I love Videotape so much, I'd confidently say that Wolf at the Door is the greatest close of an album ever. Thom Yorke channels insanity and violence in a torrent of words. And the music doesn't let you off the ride. It feels like something smashing and not stopping. "I wish you'd get up get over. Get up get over and turn the tape off."

Singles

4:07: Gagging Order, I Am Citizen Insane, Paperbag Writer, Where Bluebirds Fly

4:09: I don't think I'd heard Gagging Order before hearing it on Jaydiohead (the Jay Z / Radiohead mashup). But what a simple and beautiful song. And the dread is there: "A couple more for breakfast. A little more for tea. Just to take the edge off." For me, it's someone who wants to be left alone to their drugs, no matter the inevitability of death. "Move along. There's nothing left to see. Just a body. Nothing left to see." Citizen Insance is a nice instrumental.

4:22: I Am a Wicked Child doesn't do anything for me. Paperbag Writer is fine. Where Bluebirds Fly is probably the most interesting of the three, all rhythm and bleeps and bloops, with synth layering. After this song, it's on to In Rainbows.

In Rainbows

4:30: October 10, 2007, my kids were 9 and about to turn 7. And I was celebrating Radiohead Day and blasting In Rainbows while we were having breakfast and getting ready for school. By this point, my taste had very much turned to experimental music and modern classical. Looking back, I see we also listened to a lot of Arcade Fire, Sigur Ros, and Mozart (with whom my daughter was obsessed). REM Day (Accelerate) would happen the next year.

4:32: As much as I love this album, I don't love Bodysnatchers. It's fine, but the rest I absolutely love. So there's that. There is, though, a part of it I like, the part at 2:15 with the soaring but backgrounded guitar. Yeah, this is good.

4:38: I just don't see how it would be possible to dislike Nude. When we get to Weird Fishes, the whole vibe is very relaxed and yet still intense. I'm loving this so much right now. "In the deepest ocean. The bottom of the Sea. Your eyes..."

4:51: Such a strong album. If I had it my way, I might send All I Need into Reckoner and drop Faust Arp. But when Last Flowers is a B side, you know there's a plethora of material. What's striking me again is just how restrained it all is, especially compared to Hail to the Thief. I mean, there are strings and lots more going on, but All I Need and Reckoner have a pure and unadorned sound.

5:00: I almost always skip over House of Cards. Listening to it, I wonder if it's because it's so restrained that there's not enough musically interesting to me and nothing emotionally compelling even if simple? Or is it just that I'm impatient for the last two songs? As with Hail to the Thief, I often listen just to the last two songs. Jigsaw Falling Into Place. "Come on and let it out ..." and then the part after "dance, dance, dance." "Not just once..." This whole part. Wow.

5:07: I guess Videotape is probably my favorite Radiohead song. The themes of comprehending death, clinging, being satisfied, these I keep turning over. And this deceptively simple but powerful song is always there. I reach for it often. And I feel less alone.

In Ranbows Disc 2

5:18: When I first heard disc two, I was blown away that the songs were easily good enough to compose another album. It may have been the first set of Radiohead B sides I'd heard. Go Slowly is beautiful. Last Flowers is transcendent, and I wish it could have found its way into the In Rainbows track listing. "It's too much. Too bright. Too powerful." I have a literal interpretation of what's going on in this song in which an elderly person can't keep up and the world is caving in and the appliances and everything have gone beserk. But I also hear in it the basic question: how do we cope with our reality? I love it. Listened to it over and over again over the years.

5:25: Up on the Ladder is the perfect song to follow Last Flowers, as it, musically, creates tension in an opposite manner. Still classic Radiohead, but it layers in sound upon sound, pulls them away, builds them in again. "Snake charming" is a lyric and the feeling. It has that elevating synth sound that deepens the mood.

5:34: I'm not a huge fan of Bangers and Mash, which just ended. 4 Minute Warning is a nice step-down. Funny because I can't think of another Radiohead song like it. I keep thinking it reminds me of something else. Sounds like a closer, though.

Singles

5:37: Unravel by Björk is an amazing song. And this cover was a great surprise. But not, because it's a great song. "The devil collects it. With a grin."

5:45: These Are My Twisted Words is a Radiohead jam, easy to listen to and to like but hard to love. (A little of Hunting Bears in the guitar.)

5:49: Last single before The King of Limbs is Harry Patch, which might have been released before These Are My Twisted Words. I love Jonny's film work for PT Anderson and had listened many times over to the soundtrack for There Will Be Blood when this was released. I was excited to hear the string arrangement - with the undertone of dread recalling How to Disappear Completely. But then come beautiful cycles of strings coming in waves, over which Thom sings in a high falsetto. The lyrics are the words of Harry Patch, the last surviving British soldier who fought in the trenches in World War I. I'm taken back to the first time I heard The Final Cut. And the song itself sounds like a field of poppies. This is among my three favorite Radiohead songs.

The King of Limbs

5:53: This album stands in such contrast to In Rainbows for me. I absolutely love it. But Radiohead Day for this album came at a time when my kids were a bit older and when I was absorbed in a research project about which I was passionate. I remember listening to this and the related singles on repeat as I typed and typed. Bloom is magnificent. A track with so much going on that I hear new things, new ways to hear it all the time. Thom Yorke performed a solo piano version at Pathways to Paris last fall that is well worth checking out. Look it up on YouTube or soundcloud.

5:59: Mr. Magpie is one I'd replace. I've never connected with it like I have with The Butcher and Staircase, which followed as singles. What am I missing in it? The other song I'd replace, although I'll give it a fresh listen when it comes up, is fan-favorite Separator. It may be the only Radiohead closer that I like significantly less than other tracks on the album.

6:06: Little by Little feels too easy. Of course I'm going to like this song, and I feel like they could write songs like this by the gross. It's the most Radiohead-y song on the album. And I love it. Then we get to Feral, which gets more interesting and affecting with each listen.

6:19: The subdued but vital feel of the Lotus Flower / Codex /Give up the Ghost tracks is palpable. It transports me back to a particular place, particular struggles. And it best encpasulates the organic themes of the album. Give up the Ghost in particular got its hooks in me when I first saw a solo performance by Thom on YouTube. I find myself having it on the musical loop in my mind, sometimes humming it. It's rich with yearning, with a sense of wanting something more, but more real. "Don't haunt me."

6:25: What do I not get about Separator? I like it, but I don't love it the way some seem to. And I love this album. So I don't know. I do love the light touch of the guitar at the end, at the "if you think this over then you're wrong."

Singles

6:30: Supercollider, The Butcher, The Daily Mail, Staircase, Spectre

6:33: I was one of the poor fools hoping for an Amnesiac for the King of Limbs. We didn't get it, but we did get some finished singles. Several were previewed in solo shows by Thom. Supercollider was one, which I'm not sure if I prefer just on piano or in this produced version. It's interesting. The Butcher, though, is one of those songs that makes me wonder how they do it. So much to think about on that one.

6:44: The Daily Mail and Staircase. Staircase was a song I fell in love with after seeing a video of Thom performing it on solo guitar - I think in LA. It's a beautiful version that I like a little more than this live from the basement version. I listened to this on repeat while working in March 2011. "A magnetic pull." "Let me take control." This song deserves more. Just one more song after this.

6:50: Spectre. Well this was a surprise. Maybe the most beautiful, orchestral Radiohead song yet. It's a perfect Bond theme, evoking Nobody Does It Better, which Radiohead have covered and which was always a favorite of mine. The vocals are sublime. And the way the melody and strings are brought together in a fully realized idea. It sounds more mature and melodically interesting than much they'd done before. My excitement for the new album went through the roof after hearing this.

6:53: And that's it. Yes, I've heard Burn the Witch and Daydreaming, and, yes, they're both amazing. But I'm trying my best not to listen to them too much before the album drops tomorrow. Admittedly, I've failed at that. I've probably listened to BTW over a hundred times, and a couple dozen for Daydreaming. Anyway, I was hoping to capture something of what it's meant to me to age with this band. But I don't know if I've done that. What's amazing to me is just how vital they are now. I think their best work is ahead of them, mostly because they want it to be.