This paper will analyze the breakdown of our system of criminal justice in terms of what Thomas Kuhn would describe as a crisis of an old paradigm-punishment. I propose that this crisis could be solved by the adoption of a new paradigm of criminal justice-restitution. The approach will be mainly theoretical, though at various points in the discussion the practical implications of the rival paradigms will also be considered. A fundamental contention will be that many, if not most, of our system's ills stem from errors in the underlying paradigm. Any attempt to correct these symptomatic debilities without a reexamination of the theoretical underpinnings is doomed to frustration and failure. Kuhn's theories deal with the problems of science. What made his proposal so startling was its attempt to analogize scientific development to social and political development. Here, I will simply reverse the process by applying Kuhn's framework of scientific change to social, or in this case, legal development.' *This paper was made possible by a research fellowship from the Law and Liberty Project of the Institute for Humane Studies, Menlo Park, California. A somewhat expanded version of it will appear in the book, Assessing the Criminal. Restitution, Retribution and the Legal Process, ed. Randy E. Barnett and John Hagel (Cambridge, Mass.: Ballinger Publishing Co., in press). Also, I wish to extend my appreciation to John V. Cody, Davis E. Keeler, Murray N. Rothbard, and Lloyd L. Weinreb for their invaluable criticism and comments. I am greatly in their debt and hope to be able at some future time to make suitable restitution. 1. What immediately follows is a brief outline of Kuhn's theory. Those interested in the defense of that theory should refer to his book, The Structure of Scientific Revolutions, 2d ed., enl. (Chicago: University of Chicago Press, 1970). A paradigm is an achievement in a particular discipline which defines the legitimate problems and methods of research within that discipline. This achievement is sufficiently unprecedented to attract new adherents away from rival approaches while providing many unsolved questions for these new practitioners to solve. As the paradigm develops and matures, it reveals occasional inabilities to solve new problems and explain new data. As attempts are made to make the facts fit the paradigm, the theoretical apparatus gradually becomes bulky and awkward, like Ptolemaic astronomy. Dissatisfaction with the paradigm begins to grow. Why not simply discard the paradigm and find another which better fits the facts? Unfortunately, this is an arduous process. All the great authorities and teachers were raised with the current paradigm and see the world through it. All the texts and institutions are committed to it. Radical alternatives hold promise but are so untested as to make wary all but the bold. The establishment is loath to abandon 279

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The US. Supreme Court, in recent cases, has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of "among the several States" and "To regulate" also supports a narrow reading of the Commerce Clause. "Among the several States" meant between persons of one state and another; and "To regulate" generally meant "to make regular"-that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make "prohibitory regulations." In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.

This chapter anticipates and responds to various objections to the thesis of the book, including those founded on communitarianism and on considerations of retributive and distributive justice. It considers such issues as neutrality, and the difference between the right or just and the good. It concludes by considering the practicality of using ‘public policy’ analysis in place of the rights identified here and of adding additional rights to those defended as needed, to handle the problems of knowledge, interest, and power.