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111 Yale L.J. 399 (2001-2002)
Veil of Ignorance Rules in Constitutional Law

handle is hein.journals/ylr111 and id is 417 raw text is: Veil of Ignorance Rules in Constitutional Law Adrian Vermeulet A veil of ignorance rule (more briefly a veil rule) is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision.' A veil rule may produce this distributive uncertainty by either of two methods. One method is to place decisionmakers under a constraint of ignorance about their own identities and attributes. John Rawls coined the phrase veil of ignorance to describe a hypothetical original position in which principles of justice are chosen under precisely this constraint.2 But that is a special case of veil rules generally, indeed a radical case. Rawls's thought experiment introduces uncertainty by allowing the decisionmaker to know the distributive consequences of a decision on future citizens-call them A and B-but denying the decisionmaker the knowledge of whether she herself will occupy A's position or B's position. Where veil of ignorance rules appear under historical rather than hypothetical conditions, however, the relevant decisionmakers will usually know their own identities and interests. Veil rules that appear in actual constitutions, then, more often adopt a second method for introducing uncertainty: Although the decisionmaker knows or can guess whether she will occupy A's or B's position, the rule introduces uncertainty about whether A or B will reap the greater gains from the decision.3 t Professor of Law, The University of Chicago. Thanks to Elizabeth Garrett, Jack Goldsmith, Saul Levmore, Eric Posner, David Strauss, Cass Sunstein, and David Weisbach for helpful comments, and thanks to Jamil Jaffer for excellent research assistance. Special thanks to Yun Soo Vermeule. 1. For a simple example, consider a rule that requires an official with regulatory authority over the stock market to place her assets in a blind trust. Even if the official is self-interested, she will be uncertain whether any given decision will increase or decrease the value of her portfolio. She will thus be unable to skew her decisions in order to promote her personal interests. Other homely examples are blind grading and the practice by which orchestras place auditioners behind a screen. 2. JOHN RAWLS, A THEORY OF JUSTICE 118-23 (rev. ed. 1999). 3. An intermediate case occurs when a decisionmaker faces a decision that will principally affect not the decisionmaker herself, but her (genetic) descendants. If the time horizon over which the decision will matter is long enough, the attributes of descendants may be so difficult to predict that the decisionmaker will effectively be left ignorant of the identity of the persons whose interests she would favor, if she could. In this vein, participants at the Constitutional Convention 399 Imaged with the Permission of Yale Law Journal

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