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Thursday, January 24, 2008

Cruel and Unusual? On the Harvard Law Review's Case Comment on Philip Morris

Over at Volokh.com, David Bernstein, while reserving extended comment, highlights a few excerpts from a case comment from the Supreme Court issue from November 2007 on the Philip Morris decision. See The Supreme Court, 2006 Term Leading Cases I. Constitutional Law C. Due Process (121 Harv. L. Rev. 275 (Nov. 2007).

The 58 64 comments on the thread so far exhibit a kind of "piling on" on the student author. Perhaps cruelly, the student author endures the kind of over-punishment a majority of the Supreme Court found to be worrisome in the Oregon case, but which the Case Comment author, so far as I can tell, has no problem embracing.  FWIW, I've come to think that the Court's holding is justified on retributivist grounds, as I'll explain here in February, when I ventilate some of the work I've been doing on "Retributive Damages," even if I'm not sure that holding was precisely called for in that particular case and even if that holding is at odds with some of the Court's precedent.

That said, the student author, who's anonymous, wrote a very bizarre case comment, one that seems to be of little use to lawyers and little interest to scholars of punitive damages. I remember reading it and thinking of blogging about it just because I found it so jarringly out of place, but then I thought, well, maybe it's better that little notice be given to it. Then I saw it lampooned on TVC, which of course led me to question my instincts ... and to suspect there is some basis for a comment of this sort, and I'm just not getting it. (I'm mostly kidding, David.)  So, if I'm right that the Prawfs readers are a more reasonable group of wingnuts than the commenters on TVC, I wonder what might be said in defense of the case comment, or if there are some more even-handed critiques of it. I leave that to you.  After the jump you can find the first and last paragraphs of the piece, as well as another choice  selection, which may whet your appetite for more.

The history of the Fourteenth Amendment is one of hierarchy and capitalism. In the Amendment's first 139 years, courts have consistently used it to perpetuate dominant notions of class and culture--to maintain deeply rooted inequality and resist meaningful changes in the areas of poverty, race, and gender. While the Amendment's beautiful language and spirit could have been used to ensure equality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite. Last Term, in Philip Morris USA v. Williams, the Supreme Court used the Fourteenth Amendment to reaffirm and enrich procedural and substantive due process protections for corporations sued for punitive damages. This is the sad reality of a legal system and a culture that have often lacked the courage necessary to promote the practice of daily human life in a manner consistent with our values. But by reconceptualizing the kinds of harms that it addresses, we can transform the Amendment--now itself part of the machinery of cruel myth and illusion--into a tool for equality and justice.

Here's another one:

The Fourteenth Amendment currently offers no protection to the
38,000 American citizens who die each year just by breathing our air.
It should. The money in a corporate bank account is a constitutionally
protected interest. If that money is threatened, the great forces of justice
and courts and power and violence will come to its defense. Yet
the Justices do not rush to the defense of the 400 million children who
are chronically hungry.54 What has happened to their lives and their
liberty? Why not protect the poor in third world countries? Why not
have an amendment that said to them: your limbs will not be wearied,
your children will not be malnourished, your homes will not be pillaged,
polluted, and destroyed, and your people will not be murdered so that I may enjoy a jewel.

And here's the last paragraph:

One small child dies of starvation every five seconds. That child is one of nearly ten million people who die every year because of hunger. It would be hard for us to imagine watching a child die. In fact, if it were happening in front of us, most of us would do everything in our power to stop it. We must understand and confront the powerful psychological forces that allow us to put the face of this child out of our minds when we interpret constitutional language that purports to bind us to thinking seriously about life and liberty. Yet we live with this world, and we live with this Amendment. And we violate it every five seconds.

Update: You can find Paul Horwitz's sharp reactions here.

 

Posted by Dan Markel on January 24, 2008 at 11:48 PM in Life of Law Schools | Permalink

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It's badly written, but the extracted paragraphs seem to be the worst of the lot. And the Court ought to be criticized for what -- if the author's reading is right (I've not read the case) -- does sound like a very Lochner-ish decision. I mean, a due process right to have harm to non-plaintiffs considered with only some magic words in the jury instructions, not others? What? What?

Of course the writing is totally inflamed and polemical, in addition to being poorly crafted. It's very unprofessional. But if we set the stylistic issues aside, is there much to complain about?

Ok, the shoot-from-the-hip sociology and philosophy on pg. 281-283 is pretty bad too -- not because the arguments are wrong (I don't think they are), but because they're expressed with no regard for their complexity.

Still and all... isn't it nice to know that law school hasn't strangled at least one idealistic soul? (Even if it's not educated that soul quite as well as one might hope.)

Posted by: Paul Gowder | Jan 25, 2008 3:20:40 AM

There's really nothing that can be said in defense of it. Paul Gowder's comments make sense, but I'm not sure that anything the note says is worthy of being called an "argument."

Posted by: KRS | Jan 25, 2008 3:55:17 AM

I fail to see what's incorrect about the first paragraph. Enlighten me?

Posted by: Jason | Jan 25, 2008 8:41:15 AM

What's wrong about the first paragraph? Well, did Brown v. Board of Education "perpetuate dominant notions of class and culture," "maintain deeply rooted inequality," and "resist meaningful changes in the areas of poverty, race, and gender"?!?

Posted by: Mole | Jan 25, 2008 10:57:40 AM

I don't see how the author's being punished at all. He or she is anonymous, and certainly had to expect a lot of people to think the comment was unusual. The commentary certainly makes more people read the piece, which is what the author wants, right? Bernstein isn't lampooning it at all, just quoting it. It seems to defy parody, I think.

Posted by: Chris | Jan 25, 2008 11:08:43 AM

For those people who think that 9 mostly elderly lawyers in the United States have the power to end hunger throughout the world merely by writing a document that mentions a few words written in 1868, this article is a useful reminder that such a magical power has been shamefully left unexercised.

Posted by: Stuart Buck | Jan 25, 2008 11:27:17 AM

"Why not protect the poor in third world countries? Why not
have an amendment that said to them: your limbs will not be wearied,
your children will not be malnourished, your homes will not be pillaged,
polluted, and destroyed, and your people will not be murdered so that I may enjoy a jewel."

- S/he is quite socially conscious (someone's been taking Kanye West to heart).

"We must understand and confront the powerful psychological forces that allow us to put the face of this child out of our minds when we interpret constitutional language that purports to bind us to thinking seriously about life and liberty."

- I think Justice Kennedy just found his next law clerk.

Posted by: Calvin TerBeek | Jan 25, 2008 3:45:33 PM

I think my complaint would be, if we extended the protections the author suggests to the people he/she suggests, I highly suspect that the next article he/she would write would be about the evils of American imperial expansionism.

Posted by: lost in the Yenching stacks | Jan 30, 2008 11:32:47 PM

I think it is awesome to see this kind of thing get published in HLR, even if it could be inproved upon. I was proud of some of the radical agit-scholarship I picked and wrote in my own journal volume, but this author pushed the formal traditions harder than I thought was possible. Hats off!

Posted by: Corey | Jan 31, 2008 5:24:41 AM

Hats off?? Besides how poorly written it is ("it would be hard for us to imagine watching a child die" - why in the world is that in the subjunctive?), the author doesn't seem to understand the concept of STATE ACTION. How can "we" violate the Fourteenth Amendment every five seconds? "We're" not state actors! (At least, most of us aren't.) Moreover, she seems to be committed to some incredibly ambitious and totally unworkable disparate impact standard of equal protection. Washington v. Davis may not be great law, but you can't write a case comment that just sort of casually and implicitly suggests that we overrule it without making at least a sketch of what you'd plan to replace it with. I'm also not getting what children in Africa have to do with the U.S. Constitution, or how the Fourteenth Amendment could protect people suffering from diseases caused by toxins in the air - is that a new substantive due process right? The right to breath clean air? Again, the responsible parties are mostly private individuals and corporations, so how would the Constitution apply? How'd this person even get into law school?

Posted by: Asher | Jan 31, 2008 6:24:42 PM

What a shame. Failing to include any legal analysis in a case comment...what a gaff! Best of luck to the author. A bright future in journalism lies ahead.

Posted by: Steve | May 9, 2008 1:45:10 PM

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