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The machine gun method

When I was in Algebra II my freshman year of high school, we were taught a couple of different ways to solve a quadratic equation. A couple have fallen by the wayside (as we law students do not regularly employ math more complicated than the Hand Formula), but I remember two distinct methods that had almost opposite pros and cons: factoring, which we learned first, and using the quadratic formula, which we learned last. As my math teacher, Mr. Josh Taylor, explained and demonstrated, factoring is the easiest of the ways to solve a quadratic equation, but it doesn’t always work. In contrast, the quadratic formula always works, but it has the uncanny tendency to get unwieldy at the times when it would make the most sense to factor instead. As a result, Mr. Taylor gave the quadratic formula the nickname of “the machine gun method” — it always gets the job done, but sometimes by using more “bullets” than the job required.

While the choices I have made in undergraduate and law school have largely seen me avoid using the stellar mathematic training I received in high school, this underling idea about there being multiple ways to solve a problem with their own disadvantages hasn’t just stayed with me as a back-of-my-mind idea. It’s come up, over and over again, both in other disciplines I’m studying and in other parts of my life. I’ll give three examples to illustrate the point, starting with my time in undergrad as a political theory and constitutional democracy major (think of a PLS-style Great Books program), during which we of course read Aristotle’s “Politics,” in which Aristotle articulates six distinct sorts of regimes of rule by one, the few, or the many, and then divided into three “correct” kinds — “kingship, aristocracy, and polity” respectively — and three “deviations from these — tyranny from kingship, oligarchy from aristocracy and democracy from polity” (IV.2, Becker Stephanus p. 1289a). The spring of my 1L year, I had the opportunity to TA Professor Patrick Deneen’s Political Theory course, where I graded a section of 30 students. They too read this quote from Aristotle’s “Politics,” but Deneen saw fit (in my view rightly) to emphasize a different line from this same general area, at which Aristotle notes that polity is a particularly unstable “mixture of oligarchy and democracy” (IV.8, Becker p. 1293b). So, while Aristotle emphasizes that polity is “the best possible” regime (IV.8, Becker p. 1288b), it’s also the regime least able to be kept, and so most societies settle for something more inferior but more stable. In that sense, then, both oligarchies and democracies (towards one of which every polity bends) are political machine-gun methods.

For a second example, let’s consider a paper I wrote before having taken Administrative Law on the relationship between legislative and executive power. Its central thesis was basically that American separation of powers has a “legislative silence” problem. If our Constitution gives Congress the power to make laws (see generally Article I), the President the responsibility to take care that the laws are enforced (see generally Article II), and the federal courts the responsibility to decide cases and controversies arising under the Constitution or those laws (see generally Article III), does it commit these powers exclusively to each respective branch? In that paper, I answered that it doesn’t but it should. James Madison proposed to spell separation of powers out in a constitutional amendment that was part of the original draft of the Bill of Rights, but the First Congress rejected it, with members voting no both because they disagreed with its substance and because they agreed with its substance so much that they found it unnecessary. That ambiguity in turn led to widespread executive encroachments on executive power, so I argued that we should reconsider whether the amendment was as unnecessary as some First Congress naysayers thought. After having taken Administrative Law, my view on that issue has quite a bit more nuanced, and while I still think the executive branch tends to exercise too much quasi-legislative power too much of the time, I readily acknowledge that the idea, whether put forward by James Madison in a constitutional amendment proposal or advocated by me in an old paper, that there is one right set of actors for every governmental function is a governmental machine-gun method.

And then there is the very nature of our legal system itself. I’ve previously written about the distinction between law and equity, and about the Remedies course I took last fall from Professor Samuel L. Bray, one of our nation’s leading scholars on equity. One of the things I most appreciated about taking his class was the opportunity it gave me to think about how the law courts (and legal remedies) and the equity courts (and equitable remedies) contribute to a well-ordered judicial system. As Prof. Bray would put it, anyone arguing (as he does) that maintaining a distinction between law and equity makes sense needs to have a compelling answer to the question of why we shouldn’t simply commit ourselves to making one of those systems work well all of the time. In response, Prof. Bray essentially ballparked that making either law or equity work well for 90% of cases all of the time is a rather easy task; 99% is harder but still doable. But to have one of these frameworks cover every situation is a practical impossibility. So instead we use two systems (formerly the separate courts of law and equity, now simply different legal and equitable remedies), relying on law to more efficiently handle most cases, then counting on equity to clean up that which law does not handle well. Thus, although I continued asking the question of why we don’t simply resort to equitable relief in more circumstances, Prof. Bray answered my question by essentially saying that a larger equity power would turn equity into a machine-gun method.

My dear friend Caroline Gramm and I were talking about this concept of “machine-gun methods” the other day, and she suggested that sometimes we get complacent in employing machine-gun methods for the problems we solve in our own day-to-day. Why? Because we’re risk-averse. We’re much more comfortable doing something we’ve done a zillion times before, even if it’s inefficient, than to try a new way to handle a life problem because we think it might not work. But think of how much more we’d be able to do if we weren’t so stuck in this risk-aversion! So, the next time an opportunity arises to do something a different way, maybe that’s an opportunity God is giving us to move from a mindset of “we know what works, so let’s keep doing that even if it’s inefficient” to something more like “maybe let’s try this, and if that fails, we’ve got the machine gun method.” We might be pleasantly surprised at what happens next!

Devin Humphreys is a 3L at Notre Dame Law School. When he isn’t serving as the sacristan at the Law School Chapel or competing at a quiz bowl tournament, he’s sharing his thoughts on the legal developments of the day with anyone who will listen. For advice on law school, hot takes on Mass music and free scholarly publication ideas, reach out to Devin at dhumphr2@nd.edu.

The views expressed in this column are those of the author and not necessarily those of The Observer.