Valparaiso University Law Review Volume 18 Number 4 Summer 1984 pp.741-940 Summer 1984 Public Policy: Contract, Abortion, and the CIA Paul H. Brietzke Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Paul H. Brietzke, Public Policy: Contract, Abortion, and the CIA, 18 Val. U. L. Rev. 741 (1984). Available at: https://scholar.valpo.edu/vulr/vol18/iss4/2 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Brietzke: Public Policy: Contract, Abortion, and the CIA PUBLIC POLICY: CONTRACT, ABORTION, AND THE CIA* PAUL H. BRIETZKE** TABLE OF CONTENTS I. THE POLICY PROCESS ............................... 745 A. Conflict and Confusion .......................... 747 B. The (Il)logic of the False Dichotomy .............. 752 II. CONTRACT: ESCAPING BETWEEN THE HORNS OF THE FALSE D ICHOTOM Y ........................................ 767 A. An Illustration of Circular Reasoning ............ 768 B. Freedom of Contract and its Derogation .......... 774 III. THE CIA: FINDING THE HORNS OF THE FALSE DICHOTOMY 785 A. Information and Secrecy ........................ 793 B. CIA Policies as Their Own Cause ................ 802 C. Exploring the False Dichotomy ................. 813 D. Failures in Accountability ....................... 832 E. Future CIA Accountability: A Proposal ........... 852 IV. ABORTION: SPREADING THE HORNS OF THE FALSE D ICHOTOM Y . ....................................... 861 A. Roe v. Wade as the Policy of the Second-Best ..... 863 B. Roe's Unwanted Progeny ........................ 875 C. Mothers Young and Poor ........................ 889 D. Changing the Terms of the Abortion Debate ...... 895 V. CONCLUSIONS AND PROPOSALS FOR REFORM ........... 906 A. W eak State, Strong State ....................... 911 B. Clearing the Policy Streams ..................... 918 C. Securing a Policy Competence ................... 923 D. The Dialectics of Law and Policy ................ 929 E. Policy Leadership .............................. 934 *Sections I & II of this article were delivered as my Inaugural Lecture, at the Valparaiso University School of Law on 25 April 1983. Invaluable comments by Paul Cox, Jack Hiller, Ken Klein, Rosalie Levinson, Peter Mutharika, John Potts, and Richard Stith are acknowledged gratefully, as are the creative investigations by my research assistants, George Terrell and Tim Thorlton. Errors remain my responsibility. **Professor of Law, Valparaiso University. Produced by The Berkeley Electronic Press, 1984 Valparaiso University Law Review, Vol. 18, No. 4 [1984], Art. 2 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 18 Public policy is "what governments do, why they do it, and what difference it makes."' It also gives rise to the most vague, fragmented, and inconsistent notions at work in our law today What public policy means and does can only be described at a sweepingly general level,3 1. T. DYE. POLICY ANALYSIS 1 (1976). 2. Public policy "is a catch phrase elusive of meaning without reference to the context in which it is used." Sterk, Enforceability of Agreements to Arbitrate, 2 Cardozo L. REV. 481, 483 (1981). See A. ETZIONI. SOCIAL PROBLEMS. 25-26 (1976); infra note 3. At the Brookings Institute, the word "policy" was repeated as often as a blind man swings a cane before him. Yet, wherever you searched for government policy, you discovered there was none. In science, education, welfare, nutrition, energy, health, and social services, the situation was always the same; there was no con- sistent comprehensive policy, but instead, many inconsistent, spotty policies. Each arena had its own constituencies, programs, and statutes .... Orlans, An Anthropologist Without a Tribe, 50 AM. SCHOLAR 465, 474-75 (1981). See G. SAWER, OMBUDSMEN 18 (2d ed. 1968) ("We have all, Micawber-like, been waiting for something to turn up"); infra note 28 and accompanying text. The policy arena reverberates with Saul Bellow's Great Noise: the noise of technology, money, adver- tising, miseducation, and the "terrible excitement and distraction generated by the crises of modern life . Contributing to it are real and unreal issues, ideologies, rationalizations, errors, delusions, nonsituations that look real, nonquestions demand- ing consideration, opinions, analyses in the press, on the air, expertise, inside dope, a factional disagreement, official rhetoric .. " Savaging the Schools, NEW REPUBLIC, May 5, 1982, p. 7, at p. 9 (quoting Bellow). See A. ETZIONI, at 25-26 (quoted infra note 3). 3. Policies are "tentative theories-about the nature of social processes and the working of social institutions .... " Majone, The Feasibility of Social Policies, 6 POL'Y SCI. 49, 50 (1975). See A. ETZIONI, supra note 2, at 60. Some groups and individuals- particularly those nominally private "persons" that are large corporations-do, of course, exert considerable influence on public policy. See, e.g., C. LINDBLOM. THE POLICYMAKING PROCESS 72-89 (2d ed. 1980). Policy is made when a decision is meant to govern recurring situations, and where a concern with resolving competing values is expressed. Mar- cus, Synthesis-Contributions of Economics and the Law to Administration, in COMPARATIVE ADMINISTRATIVE THEORY 336, 338 (P. LeBreton, ed. 1968). All policies "are regulatory in nature. Whether they are individually described as promotional, facilitative, restrictive, directive, mandatory, or whatever, their broad purpose is to induce people to conduct themselves in accord with governmentally prescribed goals and standards." Anderson, Public Economic Policy and the Problem of Compliance, in LAW AND CHANGE IN MODERN AMERICA 110 (J. and M. Grossman, eds. 1971). Inevitably, lawyers have also tried their hand at defining public policy. While it plays a larger role in French law (as, e.g., bonnes moeurs, ordre public), some find public policy to be "peculiarly English," the "particular genius" of the common law. D. LLOYD, PUBLIC POLICY: A COMPARATIVE STUDY IN ENGLISH AND FRENCH LAW 5 (1953) (citing Gutteridge and Ren6 David). A far less sanguine view is offered by Baron Parke, in Egerton v. Earl Brownlow, 4 H.L. Cas. 1, 123 (1853): "Public policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights. ... This contrasts sharply with the view of public policy held by one of its chief American architects, Justice Cardozo: policy is synonymous with "social welfare," the "good of the collective body" achieved through an expediency or prudence, and an adherence to the community mores found in religion, ethics, and https://scholar.valpo.edu/vulr/vol18/iss4/2 Brietzke: Public Policy: Contract, Abortion, and the CIA 1984] PUBLIC POLICY yet almost everyone concludes that particular policies have failed us miserably since at least World War II. Our policy landscape is "lit- tered with [such] multi-million dollar wrecks"4 as the Army's new Abrams battletank and the War on Poverty. In the words of Eugene Meehan, "the United States has provided . an appalling example of the bankruptcy of human imagination in the presence of great material prosperity and . some of the strongest evidence available in history for assuming an inability to handle wealth with foresight, intelligence, and humaneness. ' 5 This is a damning yet fair indictment of the fallout from New Deal and Great Society reforms. An explo- sion in statutory reform after World War II prompted a revolution of rising expectations in governments' ability to solve our problems. However, a deep disillusion set in during the 1970's, when people realized that a problem cannot be resolved simply by throwing money at it and by enacting any old law.' The media give examples 7 daily of the policy stupidity evident in the state of our schools, prisons, mental institutions, and many other administrative arms of government. society's sense of justice. Cardozo, The Nature of the Judicial Process, in SELECTED WRITINGS OF BENJAMIN NATHAN CORDOZO 107, 135 (M. Hall, ed. 1947). See also Symmons, The Function and Effect of Public Policy in Contemporary Common Law, 51 AUSTL. L.J. 185, 198 (1977) (quoting 0. HOLMES, THE COMMON LAW (1881)): "The very considera- tions which the courts rarely mention and always with an apology, are the secret root from which the law draws all the juices of life. Every important principle which is developed by litigation is . the result of more or less definitely understood views of public policy." 4. A. ETZIONI, supra note 2, at 61. But see id. at 25-26 (quoting Ben Wattenberg's distinctly minority view): The policy correctives needed are more of the same, and "the major danger today is only that we will be catch-phrased and crisis-mongered to death before all is done." 5. E. MEEHAN, REASONED ARGUMENT IN SOCIAL SCIENCE 190 (1981). As in Viet- nam, we "stagger through history like a drunk putting one disjointed incremental foot after another." A. ETZIONI. supra note 2, at 87-88 (quoting Kenneth Boulding). See A. WILDAVSKY, SPEAKING TRUTH TO POWER: THE ART AND CRAFT OF POLICY ANALYSIS 4 (1979) (quoted infra note 28 and accompanying text); Beer, The Idea of the Nation, NEW REPUBLIC, July 19 and 26, 1982, 23, at 29 (emphasis supplied): "Considering where we started from some thirty years ago, our progress has been