Monday, March 31, 2008
Garvey on "Institutional Pluralism"
In his address at the January 2008 Annual Meeting of the AALS, the new AALS President, Dean John Garvey (Boston College) discussed "institutional pluralism." Here is a bit from a Boston College Law School-affiliated site:
In a speech in January at the 2008 Annual Meeting of the American Association of Law Schools (AALS) in New York Dean of Boston College Law School and AALS President John Garvey talked about shifting the axis of the legal academy’s discussion over diversity. Instead of focusing on diversity within law schools, Garvey talked about cultivating the differences among them. . . .
. . . “Its not clear that Mill’s argument entails protection for dissent at every level,” Garvey said, adding that “a distinctive institutional culture is not inconsistent with individual freedom of inquiry.”
“Collaboration is not control,” he stressed.
In conclusion, Garvey acknowledged the “uncertainty” in his voice about his suggestions. Still, he said that he believed that thinking more about institutional pluralism would be healthy, both for students and for the intellectual life of the academy.
Garvey concluded, “Schools don’t need to compete on the same track to succeed.”
I have not been able to find a link to the full address, but it is reprinted in the March 2008 issue of "aals news."
We Must Use Big Words
As law professors, we must use big words.
Nay, allow me to restate, viz., it is incumbent upon us to deploy brobdingnagian lexemes.
Coming from a journalism undergraduate education, I grew up with a disdain for big words. If something can be said simply, so much the better.
But I have grown to have a different perspective as a law professor. When teaching class, if a big word pops into my head, I drop it like it’s hot.
Why? I figure it’s my responsibility. If we, the learned academics, don’t use the big words, who will? If language goes unused, it withers and dies. And, hey, there are many words out there, which, while no one really wants to use them, it would still be nice to keep them technically alive. Thus, someone must use them. That someone – especially when it comes to legal words – is us, the lexerati.
I’m doing my part. In fact, I’m liable to use big words even if I am not entirely sure what they mean. Many people would be mortified at the thought of misusing a word in front of a bunch of people. Not me. As a scholar, I figure, it’s my job to have new thoughts, to introduce original ways of looking at things, and, as I see it, to use words in entirely novel ways.
More than that, I figure it’s also my job to make up completely new words. So if something pops into my head, and it sounds like a word, I’ll just say it.
I’d give you some examples, if I could, but I can’t. How am I supposed to know what words I’ve made up or misused? No one is going to tell me they know better. Hello! I’m a law professor.
But I am confident that I’m using at least some words incorrectly. How can I be so sure? It’s a numbers game. Big words are so omniscient in my vocabulary, the odds are nanotesimally small that I’ve used them all correctly and that they all, in fact, exist.
A close friend of mine in law school – who was born with a severely reduced capacity for embarrassment* – once interrupted her federal courts class to ask what the word “precatant” meant. It was about the tenth time in as many minutes that the professor – one of the nation’s leading legal scholars, I might add – had dropped the word into the lecture. So finally, my friend couldn’t stand it anymore, and she just raised her hand and asked what the heck it meant.
Uproarious laughter ensued.
“You’ve never heard of the word?” the prof asked incredulously. He nonetheless obliged by reciting the definition of “precatant.”
Now, here’s the funny part: “precatant” is not a word. (The prof apparently meant “precatory.”) Or, I should say, “precatant” wasn’t a word, at least not until it was used by one of the nation’s leading legal scholars.
I think the English language will withstain.
* to whom I am now married
Pacing a Course
As a rookie prawf, I've found pacing to be one of the biggest challenges. Generally, I find myself not covering as much as I hoped to. I feel a little like a kid in a candy store, with eyes bigger than my maw. When drawing up a new syllabus, it's hard to know how much material can realistically be covered in a class session. I'm curious to hear what advice there is about how to anticipate pacing.
US News Hacked?: Does the US News Web Site Display 3rd Tier & 4th Tier Law Schools Ranked in Order?
In its published version of its law school rankings, US News lists schools in the "third tier" and "fourth tier" alphabetically, rather than in ranked order. One of my colleagues has noticed an anomaly in this year's on-line version of rankings which, it appears, reveals the full ordinal ranking of third-tier schools in "batches" which correspond to "tied" scores. (Also noted a few days ago by the perceptive folks at the Legal Ethics Forum).
When viewing the "third tier" electronically on the US News web site, schools are not listed alphabetically. In the third tier, for example, the first listed school is Creighton University (Creighton is not the first alphabetically). Schools then appear in alphabetized groups which, it seems, reveal the full rankings: wherever there is a tie in the top-100, US News has listed schools alphabetically. It appears that the web site does the same.
For the ordinal listing of 3rd and 4th Tier Schools, read on...
A few caveats. It is possible that, in a few instances, a school that is is "bunched" alone following a group of schools that precede the school alphabetically. In that case, schools might falsely appear to be tied. Second, I post this not because I endorse the US News rankings, or its methodology. I am conscious of some of the dangers of ranking more law schools (see Tom Bell's post on this here). But this information appears to now be in the public domain, and I'm curious (see below) why and what it means.
* * *
100. (Tie) Mercer, Stetson, Syracuse, U. Buffalo, U.Louisville
105. (Tie) Creighton, U. Arkansas (Fayetteville), U. Maine
108. (Tie) Michigan State University, Quinnipiac U., U. Mississippi, U. Toledo
112. (Tie) Albany, U. Akron, U. Montana, U. San Francisco, U. St. Thomas (MN), Vermont
118. (Tie) Drake, Gonzaga, Howard, New York Law School, U. Idaho, U. Missouri-Kansas City, W. Virginia
125. (Tie) Cleveland State, Loyola - New Orleans, Texas Tech., U. Baltimore, U. Wyoming, Wayne State U.
131. (Tie) Chapman, Franklin Pierce, Hamline, Pace, U. Arkansas-Little Rock, Washburn
137. (Tie) Ohio Northern, Samford (Cumberland), Suffolk, U. South Dakota, Willamette
142. U. North Dakota
143. (Tie) Campbell, So. Illinois, Southwestern, U. Memphis, U. Tulsa, Valparaiso
149. Northern Illinois
150. (Tie) CUNY, William Mitchell
152. U. Dayton
153. (Tie) Duquesne, Florida International, John Marshall
156. (Tie) California Western, Northern Kentucky
158. (Tie) Nova Southeastern University, Roger Williams U., Widener
161. (Tie) Capital, Whittier
163. (Tie) Mississippi College, South Texas, St. Mary's, Texas Wesleyan, U. Detroit
168. (Tie) N.C. Central, Oklahoma City U., Texas Southern
171. (Tie) Florida Coastal, Regent, Western New England
174. (Tie) Golden Gate, New England, Southern, St. Thomas (FL), Thomas Jefferson
179. (Tie) Ave Maria, Touro
181. (Tie) Barry, Thomas Cooley, U. District of Columbia
Now some questions. First, was this intentional? Some critics have suggested US News should rank all law schools to avoid the exaggerated effect of slipping from Tier 2 to Tier 3 (something my employer did this year). A drop from spot 104 in the rankings to 105 pushes one out of the ranked list and into (at least in the published version) alphabetical-land (Sorry, Creighton!). Was US News trying to answer these critics without broadcasting that it was doing so? My guess is that leaks prompted US News to rush the web site on-line, and that they missed this quirk, but who knows?
Second, how long will it take before US News changes its web page?
Takings and Constitutional Interpretation (From Richard Epstein)
From Richard Epstein
After multiple detours about both federalism and the original position, it is probably worth while to return to the original structure of Supreme Neglect. The initial task is not the substantive one of figuring out exactly what the takings clause means. Rather, it is trying to develop a conceptual framework for evaluating the text as it appears in the Constitution. That task has to avoid two extremes. The first of these is that textualism is a poor method of constitutional interpretation. If that means that we have to start somewhere other than the text, it is clearly a nonstarter because we could not even figure out what why one should invoke a constitution at all. We could do as well with a blank piece of paper. But once we start with the text we have, as the saying goes, put it in context to figure out it complete meaning. This is the approach that has to be used with all texts, and it requires I think the following general appreciation. What is the intellectual temperament of the people who adopted the doctrine, and what moves on interpretation are needed to lend it a certain level of coherence to the basic constitutional precept. This is not a new challenge. It arose, for example, in Roman law in connection with the Lex Aquilia, where it gave rise to an elaborate interpretive system that works as well today as it did then. For a discussion of the linkage between then and now, see my A Common Lawyer Looks at Constitutional Interpretation, 72 Bost U. L. Rev. 699 (1992).
Here it is necessary to take into account two kinds of gaps in the basic doctrine. The first is that which deals with the problem of circumvention which asks the question, given the basic prohibition against takings, what actions undertaken by government are so close to the original that the ban could be easily avoided if these practices were not limited as well. One clear implication of this position is that physical occupation cannot be the outer bound. Just think of a case where the state tells a person that he cannot touch or use his automobile, even though the state makes no use of it for itself. Here everyone thinks that this action is “tantamount” to a taking and therefore should be treated in the same way. And if that rule is good for chattels, then it is also good for land. And once the total inability to enter one’s own land counts as a taking, there is no clear line that stops lesser restrictions on use from falling into that class.
To many the idea that all land use regulations are takings would be an anathema because it cuts far too broadly. And so it does. The state could keep me from blasting rocks on my own land if I am a menace to others. Hence the second great principle of constitutional interpretation cuts in the opposite direction, and thus allow in each and every case of individual rights, the state to offer some justification for the restriction in order to protect, as is commonly said, the health and safety of others. (The morals and the general welfare are also parts of the police power, which raise far deeper complications that I put aside for the moment.)
The two principles work in opposite directions. Circumvention expands the scope of the clause, and the police power narrows it. But the dual corrections yield a far better conceptual framework than we get by ignoring both issues. The question, which Rick Hills constantly asks, is how does this square up with the historical evidence. In one sense, it does not, for there is little or no direct discussion of the takings clause, or for that matter, any of the guarantees in the Bill of Rights. But in another sense, it squares up very well. The mode of interpretation that I use derives from Roman law and was incorporated into the common law from an early date. The Framers understood and worked within this tradition, which in my view provides ample support for the basic approach.
More to come on the application of this principle.
Does following the money suggest the end is soon Senator Clinton?
Two money stories about the Clinton campaign on Politico caught my eye this morning: Cash-strapped Clinton fails to pay bills and Clinton didn't pay health insurance bills. Here is a damning excerpt from the first story:
[W]ord is getting around that Clinton’s campaign does not promptly pay those who labor to make her events look good, said an employee of the event production company Forty Two of Youngstown, Ohio. “I feel insulted by the way that the campaign treated this company and treated us personally,” said the employee, who did not want to be named talking about a client.
The Clinton campaign paid the company $16,500 to set up a stage, press riser, sound system and backdrops at a Youngstown high school last month for a raucous union rally, where an aggressive Clinton stump speech drew thunderous applause. But the Clinton campaign has yet to pay Forty Two for two other February events, and the employee said the campaign has stopped returning phone calls, e-mails and didn’t respond to a certified letter.
“We worked very hard to put together these events on a moment’s notice and do absolutely everything to a ‘t’ to make it look perfect on television for her and for her campaign,” said the employee. “Sen. Clinton talks about helping working families, people in unions and small businesses. But when it comes down to actually doing something that shows that she can back up her words with action, she fails.”
Combine these money stories with Senator Clinton's foot-dragging on the release of her tax returns, and I am now thinking that the Democratic race could end a lot sooner than the Clintons' want to admit. Even with a big win in PA, Senator Clinton is likely to remain behind on many fronts, and she will have an uphill battle in all but a few of the remaning primaries. And if the Clintons' tax returns reveal that they are very rich (as this Money Magazine assessment suggests), and yet cannot manage to pay the bills, the hypocrisy of Senator Clinton's appeals to working-class Democrats may become too much for any smart superdelegate to deny.
Though demographic realities suggest that Senator Clinton will prevail in PA, it now seems reasonable to predict that she may not be able to continue her campaign effectively beyond late April or early May.
The last two weeks have been the most active for the CLC project to date. The project has had postings of one kind or another from Michael Corrado, Tony Dillof, Ken Simons, Vera Bergelson, Michelle Anderson, Stephen Garvey, Peter Westen, Joan Krause, Laura Appleman, Josh Dressler, Paul Robinson, Arthur Ripstein, Amy Sepinwall, Bennett Capers, Dan Markel, and Doug Husak. The current state of the project is summarized on the CLC Status Table.
Forty-eight articles or chapters have been nominated as the basis for a core text. Twenty of these have two or more expressions of interest in commenting; eight have three or more expressions of interest. We encourage you to tell us the pieces on which you might be interested in commenting, for it is by this means that the "conversations" to be included in the final volume will be selected. Ideally, we would like at least four or five commentators to which the core text author would then respond.
Note that you will not necessarily end up writing a comment for all of the core texts in which you express an interest. The project will move ahead only with those core texts in which a critical mass of commentators express an interest. So don’t hesitate to sign up for a variety of core texts. If by chance they all move forward, you can decide later which ones you want to pursue.
The comments normally may not exceed 800 words, and they may be as short as you wish, so feel free to take on less than the entire line of argument of the core text and instead offer an objection/insight/observation to only one aspect. The final drafts should be carefully written but the style does not call for elaborate documentation – in other words, the comment writing should be fun! The project allows text authors and commentators to quickly and directly "join issue" in ways that more traditional scholarly forms rarely permit.
On our current development track, we are hopeful that we can complete the present phase – identifying the potential core texts and commentators – well before the summer, which will then give people the summer to do their writing – starting with finalizing the core texts (this typically will be simply an editing down of an article or chapter to fit the format and 5,000 word limit of the CLC project,), followed by the drafting of comments, followed by the drafting of the core text author’s response.
Send your core text nominations and your expressions of interest in commenting to us at CLCeditors@law.upenn.edu Before the next update letter, we will be shifting to a dynamic website where you can do your own posting. More on that later.
On a final exciting note, the size and speed of the project has let us to add a third editor. We are thrilled to have Stephen Garvey (email@example.com), of Cornell Law School, join us!
Paul H. Robinson, Kimberly Ferzan & Stephen Garvey
P.S. – You can subscribe to or unsubscribe from an occasional notification of what is happening with the CLC project by signing up at http://www.law.upenn.edu/cf/faculty/phrobins/conversations/listserv/
Watching Your Every Move
I tend to lag behind technological advances. This one, however, has me sputtering with incredulity. We are all aware that our cell phones are miniature tracking devices. But it had never occurred to me that people would pay for a service to use them as tracking devices – voluntarily. This WSJ article is an eye-popper for me. The article begins:
Would you want other people to know, all day long, exactly where you are, right down to the street corner or restaurant?
Unsettling as that may sound to some, wireless carriers are betting that many of their customers do, and they’re rolling out services to make it possible.
Sprint, Verizon, and others are signing up “hundreds of thousands of customers” who seem perfectly willing to allow others to track their location at any time. This service is being driven by “a generation of young people who are comfortable sharing a great deal of personal information on social-networking Web sites and eager for still more ways to stay connected.” The article does highlight some of the privacy concerns, particularly regarding “abuses” of the service that could occur through stalking, sexual predators, and criminal investigations (e.g., one service allows a user to send a false location as protection against stalkers).
Perhaps I was too deeply impressed by a course in dystopian fiction as an undergraduate, but the possibility for governmental abuse seems substantial to me. Even ignoring the strange problems of social control that exist when persons volunteer to participate in a system of social surveillance like this, as I understand current Fourth Amendment jurisprudence, what users voluntarily share with third parties, they also essentially make available to governmental officials (e.g., like the phone numbers one dials). Add this to the Katz formula of social expectations, and it would seem the 18-24 year olds who like to watch each other’s every move are significantly altering social practice and therefore shifting all of our constitutional privacy protections. I suppose one upshot is that parents will never have to ask “where were you all afternoon” anymore (but neither will the inquiring government official).
Sunday, March 30, 2008
The Sketchy Documentary Record
I've been reading up on the history of law reporting. Though I'm primarily interested in what we today owe to the future by way of a clear documentary record, it's also fascinating to see how profoundly our understanding of earlier ages of law is shaped by the fragmentary reporting of previous generations. Here's one particularly amusing passage, from James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1 (1986):
Most of those stenographers who recorded the state conventions are known to us: Benjamin Russell in Massachusetts, Enoch Perkins in Connecticut, Francis Childs in New York, Thomas Lloyd in Pennsylvania and Maryland, and David Robertson in Virginia and North Carolina. Lloyd's career is better documented than those of his colleagues. . . .
An ardent Federalist, Lloyd probably had no qualms about taking money from Pennsylvania Federalist leaders to delete all the Anti-Federalist speeches in the Convention, as he in fact did in his Debates of the Convention of the State of Pennsylvania . . . . In addition to suppressing the Anti-Federalists, Lloyd eliminated all Federalist speeches except those by Thomas McKean and James Wilson, the latter of which had obviously been corrected and "improved" after the Convention because they were printed with footnotes. The Anti-Federalists correctly charged that Lloyd's Debates had been "afterwards altered, dressed and undressed by, and at the pleasure of his benefactors," and were nothing more than Federalist campaign literature. . . .
The documentary record of debates on the Bill of Rights consists . . . of deliberations in the House of Representatives. These were published in 1834 [and are] known to and cited by scholars as Annals of Congress. For the first session of the First Congress, the period covering the gestation of the Bill of Rights, the Annals of Congress is a reprinting of a publication called the Congressional Register, prepared by none other than Thomas Lloyd . . . .
Far from improving by 1789, Lloyd's technical skills had become dulled by excessive drinking . . . . It was discovered that what Lloyd published "bears only slight resemblance to the literal transcript of his own notes. Sometimes a speech is printed for which no notes or only very brief notes exist; sometimes a long speech reported in the manuscript is printed very briefly or not at all." Another investigator has reported that Lloyd's reports were frequently "garbled" and that he neglected to report speeches whose texts are known to exist elsewhere. Lloyd's manuscript also demonstrates a wandering mind, for it is periodically interrupted by doodling, sketches of members, horses, and landscapes, and by poetry . . . .
Page 37 of Hutson's article reproduces a page from Lloyd's journal. The truly remarkable thing is that some of the sketches are upside down. And we complain about students who don't pay attention.
Sunday Music Recommendation
Kathleen Edwards is a singer-songwriter who writes in something of an alt-country vein. Her debut, Failer, was tremendous. She has just released her third album, Asking for Flowers, after a hiatus of a few years.
I'm not sure whether to say of Edwards that she is as good as her best work, or as disappointing as her most blah work. Failer had very few duds; I'm not sure I can say the same thing about her second album, Back to Me, or the new one. She is better, in my view, at quiet and slow songs that build beautifully in richness and emotion than she is at straight-ahead rockers; or maybe those songs just interest me less. The new album contains a couple of political songs, and I am no more interested in her politics than I am in the politics of most singer-songwriters, who can acknowledge the ambiguities of an age-old topic like love but are reduced to hectoring when it comes to war.
Still, her best work is very fine indeed. Although I recommend the whole album -- and am old enough to belive for the most part in buying a whole album rather than just the choice cuts -- Itunes types shoud certainly invest in the grand opening song, Buffalo, the song Scared at Night, and especially Alicia Ross.
Saturday, March 29, 2008
Behold My Split Infinitives, My Dangling Prepositions, and My Singular “They”
When I am writing, I want to use split infinitives, dangling prepositions, and “they” to mean just one person, but there's a problem. I’m afraid people will think I’m an ignoramus. Or, at a minimum, not as educated and cultivated as they are.
But there are compelling reasons for using these maligned grammatical constructions. Sentences are simpler when prepositions dangle. Splitting infinitives often conveys more precise meaning. And using singular “they” is frequently the only expedient means of avoiding pronoun sexism.
So, you are my witness: I am liberating myself from bowing to composition norms I don’t believe in. I am hereby making a deliberate and public decision to not obey these grammatical peccadilloes. And if some reader somewhere thinks I’m a simpleton, well, I’m sorry they feel that way.
And, besides, by putting this in writing on PrawfsBlawg, now I'll have something I can cite to as authority in my law review articles.
National Media, Missing Persons, Race and Gender
CNN reported yesterday on the renewed search for a 19-year-old Middlebury College student, missing since early February. The student last was seen leaving a dorm building on February 5. Friday's search was the first in more than one month--purportedly because the snowpack had been too deep to allow for a search.
What is striking about this story is that it is the first national media report I have seen on this story; every other news story had been from the Boston papers, the MIddlebury school paper, or other regional sources. This national silence is striking when compared with the way the media ran wild with stories about the tragic murders of students from UNC and Auburn, just within the past two months, not to mention the international news sensation that was the disappearance (and apparent murder) of Natalee Holloway in 2005.
As you might have guessed already, the missing Middlebury student is not an attractive blond white woman. He is Nicholas Garza, a Latino male from Albuquerque. The media long has been criticized for its excessive coverage of female disappearances while ignoring similar stories affecting minority members of the underclass.
So what is going on? Is the assumption that it only is a tragedy when it happens to attractive middle-class young women? Is the assumption that a man (especially a poor or minority man) is more likely to just up and disappear? Or to be in a situation in which he could suffer such harm?
Law, Culture & the Humanities
I am writing from the Law, Culture & Humanities conference being held in Berkeley this year. First of all, anyone interested in interdisciplinary work at the intersection of law, literature, history, philosophy, cultural studies, visual studies, etc., should watch for the call for papers for next year’s meeting. This conference is quite collegial, providing a great opportunity to get to know other people working across disciplines.
I’ve seen some excellent presentations on Kafka, Hannah Arendt’s jurisprudence, film, and the relation between imagination and justice, among others. What is particularly refreshing about the presentations here is the breadth of scholarly inquiry devoted to understanding law, its cultural production, and its effects that does not always have to start with a set of legal cases and a problem in legal doctrine. Not to suggest that there is anything wrong with cases and doctrine – and critics of the legal academy would certainly assert that law professors are far too enamored with legal theories to pay sufficient attention to doctrinal analysis and exposition – but it exhibits the richness of law as a scholarly field of study, something which too much emphasis on doctrine tends to obscure. In so doing, the discussion both creates and presupposes common texts and vocabularies across the humanities that helps us understand law in the richness of its human settings, without feeling it always necessary to engage in law reform proposals. To borrow a phrase from Larry Solum: Highly Recommended!
Friday, March 28, 2008
Ballpark construction, public culture, and public resources
In the current Sports Illustrated, S.L. Price, an SI writer and resident of DC, offers some thoughts on the soon-to-open Nationals Park. The park cost almost
$ 675,000 $ 675 million (whoops, thanks Dan), 97 % of which (an absurdly high percentage compared with other ballpark deals) is public money. And the deal hands almost total control over the park, and all proceeds from tickets, parkings, concessions, and advertising signs, to the team. Everyone in DC government recognizes this was a terrible deal, particularly in the face of the district's underfunded and crumbling schools and libraries. Ironically, Price reports that the city has increased funding for both libraries and schools out of an apparent guilt over the stadium deal. Price calls the park a "deal so bad it might do some good."
As a baseball fan (indeed, one of those fans with a fetish for old-style ballparks) I always have been of two minds with respect to public funding of stadiums. And I speak as my hometown of Miami prepares to pay more than half of a $ 515 million price tag for a new park for the Florida (soon-to-be Miami) Marlins.
On one hand, the economic reality is that if my city does not build this park, some other city will and the team will be leave town, a psychic loss for the community as a "major city." And we want and need public support for the arts, science, and culture--so why not also for sports, which are, in a real sense, an important part of our public culture?
On the other hand, the competing economic reality is that the city's goals in building the park--revitalize the neighborhood and bring money, people, commerce, and services to the neighborhood--are not going to come to pass, at least not fully, because, all economists agree, the numbers do not add up. And one reason to publicly fund culture is that the arts, often operated through not-for-profit enterprises, cannot exist without that public support. That is a far cry from a deal to make an already profitable private individual and entity even more profitable. And when we factor in everything else that necessarily falls by the wayside--schools, libraries, parks, and social services (stuff that ordinary people actually need)--the deal looks even worse, and even more unsupportable, as a public investment.
One of things driving my arguments on fan speech in publicly funded/privately operated ballparks is kind of a quid-pro-quo notion: If the private teams are going to demand large amounts of public financial support for their toys (which the team easily could pay for itself), teams must deal with unpopular or distasteful expression by the fans who are given access to the ballpark--who, after all, help pay for that ballpark. If a team is to receive this unique benefit of exclusive control over publicly owned and (largely) publicly financed property built expressly for that team, it ought to be subject to the limitations of the First Amendment in ways that private entities ordinarily are not bound.
A Friday Diversion--"Postcards from Yo Momma"
In the interest of a Friday distraction, and because I swear that some of them could have been e-mails from my own mother, I wanted to flag a new funny website that a friend of mine forwarded to me--"Postcards from Yo Momma."
Just don't read it in class...
National Security Law Junior Faculty Workshop
From Friend of Prawfs, Bobby Chesney:
Wake Forest University School of Law, May 23, 2008
On behalf of a range of institutions (please see the list of sponsors/hosts after the jump), I am very pleased to announce that there will be a national security law junior faculty workshop at Wake Forest on Friday May 23, 2008. The full details appear in the attached announcement or after the jump. For those among you who write or teach on topics in this area, please give serious consideration to attending. Also please forward this announcement to any colleagues who you think might be interested. Contact me at firstname.lastname@example.org if you (or they) have any questions.
Wake Forest University School of Law and the Judge Advocate General’s Legal Center and School announce a workshop for military
and civilian junior faculty working in the area of national security law (broadly understood to include the full range of constitutional,
statutory, and international law concepts implicated by national security issues). Our aim is to provide an informal setting for
participants to present and discuss works‐in‐progress, for civilian and JAG faculty to get to know one another, and for civilian faculty
to receive instruction from JAG faculty concerning current issues in the law of war.
We will begin with a dinner on Thursday, May 22, 2008, with a senior scholar invited as the event’s keynote speaker. On Friday,
May 23, we will get underway with a block of law of war instruction presented by faculty from the JAG School, followed by a series
of moderated paper presentations. At lunch we will hear from a guest speaker or two (invitations are pending). In the afternoon,
we will resume with another block of instruction from JAG faculty, followed by a further set of paper presentations. Note that the
following Monday is Memorial Day, and that the beaches of North and South Carolina are about four hours’ drive from Winston (and
the mountains a mere hour‐and‐a‐half).
We invite all faculty who teach or write in an area related to national security law (broadly understood, as noted above). We hope
the event will attract junior faculty in particular, but there is no specific cap in terms of years‐in‐teaching. There are no fees or costs
involved in attending, though everyone must rely on their own resources for their travel, lodging, and other expenses. If you wish to
attend, or have any questions, please contact Bobby Chesney at email@example.com at your earliest convenience.
If you are interested not only in attending but also in presenting a work‐in‐progress at the event, please send an abstract (or the
paper itself if you prefer and are able) no later than April 4th to Bobby Chesney at firstname.lastname@example.org. A committee including
officers of the AALS Section on National Security Law will select a set of papers designed to cover a wide range of substantive topics
under the national security law umbrella, and will report its decisions no later than April 11th.
Wake Forest University School of Law
The Judge Advocate General’s Legal Center and School
The Center on Law, Ethics and National Security (Duke University)
The Center for National Security Law (University of Virginia)
The Institute for National Security and Counterterrorism (Syracuse University)
The Journal of National Security Law & Policy
Friday Fundraisers for Steve Gey and Katrina Relief.
Since it's Friday (payday in many places), and therefore time to give charity, I thought I'd alert you to two worthy causes. The first I've already hawked here before: the Tri-for-Gey, a triathalon fundraiser by students, staff and faculty of FSU's College of Law aimed at raising money for ALS (aka Lou Gehrig's disease). FSU's community has been especially responsive to this because our beloved colleague, Steve Gey, was diagnosed with ALS last year. You can read a recent update letter from him here. As some of you remember, my wife, Wendi Adelson, is participating, so feel free to donate through her webpage on behalf of ALS and Steve Gey. (You might also want to check out Wendi's recent op-ed on prostitution and human trafficking in Florida here.) The big event is 8 days away, and the FSU community has helped raise over $50,000. Please help them beat their goal of $60,000.
Second, tonight, Friday March 28th, the Student Hurricane Network is holding a fundraiser to benefit the Gulf Coast. The Student Hurricane Network is a national network of law students dedicated to helping the people of the Gulf Coast rebuild and improve their lives in the wake of Hurricanes Katrina and Rita. It's been over 2.5 years since Hurricane's Katrina and Rita and yet there is still plenty to be done in the Gulf Coast. Time usually heals all wounds but in the case of the Gulf Coast, time has only made people forget. The Student Hurricane Network has worked tirelessly to raise and maintain awareness.
So if you're in NYC, go tonight to AVE Loft. Details after the jump. Looks fun too.
For more info on SHN, please visit http://studenthurricanenetwork.org/.
What: An open bar Mardi Gras cocktail party extravaganza
When: Friday, March 28 at 8:30 PM (the festivities continue until 1 AM)
Where: AVE Loft, 15 West 28th Street, 10th floor, New York, NY
Who: Anybody who looks good in beads and a mask. Semi-formal attire preferred.
Why: To raise money and awareness for the Student Hurricane Network, a national association dedicated to providing long-term assistance to communities affected by Hurricane Katrina.
Special thanks to Svedka vodka, who graciously offered to sponsor the party and support the Student Hurricane Network.
Ticket pricing is as follows:
$60 if bought on the day of the event (March 28).
Tickets are available by cash, check or PayPal. To purchase a ticket, please email Adam at Katman1385@gmail.com, and tell him how many tickets you wish to purchase and how you would like to pay for them. If Paypal, you will receive an email requesting a credit card or debit card payment, and then follow the instructions given.
If you have any questions, feel free to get in touch with any of the following party planners: Lior Brinn, Carrie Decell, Adam Katz, Michelle Katz, Josh Lerner, Katherine Morin, Adena Mortkowitz, Julian Stein, and Rachel Surwit.
"LAISSEZ LES BONS TEMPS ROULER" (Let the good times roll)
Please feel free to pass this invite along to anyone you think might be interested in supporting this very worthy cause.
Retributive Damages: Possible Jury Instructions
In earlier posts gathered here, I laid out the structure, rationale, and constitutional implications for a new way to think of punitive damages as an intermediate sanction designed to facilitate the public normative interest in retributive justice.
In today's post, after the jump, which is also the last post in this series, I've tried to distill many of the major policy prescriptions in this project in capsule quasi-jury instructions. I say quasi-jury instructions because I've had feedback suggesting that they are potentially too complicated for most juries. I've often been confounded by jury instructions so I'm not sure these are much more complicated than the kind normally approved, but I'm open to thinking about these instructions as a set of guidelines that may help legislatures or judges recraft their own punitive damages practice.
The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. After a busy expedite season, I'm happy to announce that the whole article will be coming out in January 2009 in the Cornell Law Review. Feel free to send me your thoughts via email.
APPENDIX: INSTRUCTIONS FOR ASSESSING EXTRA-COMPENSATORY DAMAGES
What follows is a distillation of the principal conclusions of this punitive damages project, which could be used to craft jury instructions. These instructions are designed to take into account the Supreme Court’s recent decision in Philip Morris.
NB: These instructions are a substantially modified version of the kind found in Professor Polinsky and Shavell’s article in HLR 1998. In some places, having mostly to do with cost internalization, I expressly borrow the language from their proposed jury instructions.
* * *
In considering the amount of extra-compensatory damages on the defendant, you should determine whether three separate dollar amounts are necessary: (A) an amount to accomplish retributive justice against the defendant; (B) an amount to accomplish cost-internalization; (C) and an amount to accomplish compensation for the plaintiff’s personal dignity harms.
A. Retributive Damages
Retributive damages fulfill the punishment objective of extra-compensatory damages. These instructions apply only to defendants who have committed misconduct that you have found to be malicious or reckless in nature. If you do not think, based on clear and convincing evidence, that the conduct in question was malicious or reckless in nature, do not award retributive damages.
Malicious conduct is that conduct which was done with a purpose or knowledge of causing harm, and no other legally recognized excuse or justification for the conduct is available as a defense.
A defendant acts recklessly when he consciously disregards a substantial and unjustifiable risk that harm will result from its conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to the defendant, his disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. If there are multiple defendants, you must undertake this analysis separately for each of the defendants based on each defendant’s misconduct. A defendant corporation will not be held legally responsible for all the misconduct of each of its employees. You must ask whether each defendant’s action was malicious or reckless.
If and only if you have determined that a particular defendant’s misconduct was undertaken with malice or recklessness, then the next step requires consultation of the chart prepared by the state legislature that should help you determine where on a scale of 1 to 20, with 20 being the most reprehensible and 1 being the least, the defendant’s misconduct lies. The chart tells you whether to add points to the scale based on various factors and whether to subtract points based on other factors. Your job is to assess the wrongfulness of the defendant’s misconduct based on the reprehensibility chart. [It may also be your job to determine the wealth of the defendant, or its net value if the defendant is an entity.] It is not your job to assess how much harm the defendant’s misconduct has caused to society or other nonparties to this litigation. This finding should also be accompanied by an explanation of what facts you considered relevant to your determination. Once you have deter-mined the level of reprehensibility, the court will use a different chart to determine the amount of retributive damages that the defendant will pay based on your assessment of reprehensibility.
In determining the reprehensibility of the defendant’s misconduct, you may but are not required to consider “evidence of actual harm to nonparties” because that can help show “that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible.” Similarly, you may also consider the harm or potential harm the defendant’s conduct caused to others in determining whether the defendant’s misconduct was accidental or deliberate or part of a policy or pattern and practice. However, it is important that you not consider the mere fact that others were harmed as a basis for assessing retributive damages. Those others who are not plaintiff(s) in this case can bring their own suits for compensatory and other damages.
Two facts are relevant to your task -- though they should not inform your actual assessment of the reprehensibility of the defendant’s misconduct. First, the plaintiff will personally receive no more than $10,000 of the retributive damages award. The balance will go to the state [to advance law enforcement objectives, including but not limited to provide services necessary for victims and offender re-entry into society.] Second, the purpose of retributive damages is to make the defendant worse off than it would have been had it not undertaken its malicious or reckless misconduct. Thus, when determining the level of reprehensibility, do not consider the amount of other damages (whether compensatory, aggravated, or augmented, described below). [If the defendant has made such payments or has been otherwise punished through the criminal justice system of this jurisdiction, then you ought to forego making any reprehensibility assessment.] [Note to judges: civil penalties al-ready taken by the defendant for this misconduct against this plaintiff should be credited against retributive damages. No retributive damages are available if the government has already criminally prosecuted the defendant for the wrong to the particular plaintiff in this case.]
After you make your assessment of reprehensibility, the court [or you the jury] will determine whether any other gains or profits by the defendant need to be forfeited in addition to the reprehensibility-based retributive damages award. The court may also make subsequent determinations regarding reasonable attorneys’ fees and costs (to be determined in light of the risk, time, expense and expertise related to this litigation).
B. Aggravated Damages for Repairing Personal Dignity Harms
In deciding the remedy for personal dignity harms, please first make sure that you have not already figured this amount into your assessment of compensatory damages, perhaps based on what you attributed under pain and suffering or other non-economic damages endured by the plaintiff. Once you are certain that the amount of compensatory damages has not mistakenly included an amount for insult to the plaintiff’s dignity, consider what action or amount of money is appropriate to compensate the plaintiff for the injury to the plaintiff’s personal dignity. Injuries to personal dignity, as understood here, are injuries where the defendant specifically targeted its misconduct toward this particular plaintiff. If the defendant is a corporation, consider whether the injury to the plaintiff was part of a larger course of conduct or whether it was specifically aimed at denigrating the dignity of this particular plaintiff. To facilitate review of your verdict and ensure even-handed con-sistency across similar cases, you are required to explain the basis for your reasoning in a few sentences or more. The remedy you choose here may be an amount of money that you determine is appropriate to alleviate this particular injury to personal dignity. Bear in mind that the plaintiff (and, depending on the circumstances, his/her counsel) will receive the entirety of the amount you decide under this heading.
Additionally, or alternatively, you may require the defendant to apologize to the plaintiff for the injury to the plaintiff’s dignity in person or via written communication. You may also suggest other possible actions that might repair the injury to the plaintiff’s dignity.
C. Augmented Damages for Cost Internalization
In some cases, extra-compensatory damages are desirable to serve the function of making sure that defendants do not impose costs on others that the defendants do not pay for. In making your assessment for promoting cost internalization, bear in mind that you are not able to extract money from the defendant for harms that happened to persons or entities who are not parties to this litigation. You may only consider what harm or potential harm the defendant’s conduct caused to the plaintiff(s) in this case. Other possible victims of the defendant’s misconduct may bring their own suits.
Augmented damages fulfill the objective of making sure the defendant pays for the injuries it causes to the plaintiffs in the litigation. But augmented damages will undermine the cost internalization objective if they cause defendants to take wasteful steps to prevent harm, if they cause the prices of products and services to rise excessively, or if they cause firms to withdraw socially valuable products or services from the market.
Thus, ask yourself whether the defendant might have escaped having to pay for the harm for which he or she should be responsible to this plaintiff. For example, if the harm was substantial and noticeable and likely to lead to a lawsuit, your estimate of the likelihood of escaping liability would be relatively low. But if the harm might not have been attributed to the defendant, or if the defendant tried to conceal his or her harmful conduct, your estimate of the likelihood of escaping liability would be relatively high. You should use the table below to determine the augmented damages multiplier that corresponds to your estimated probability of escaping liability to this particular plaintiff. Then multiply the compensatory damages amount [plus an amount, if any, for compensating personal dignity harms] by your augmented damages multiplier. The resulting number is the base amount for augmented damages.
The base augmented damages amount should not be adjusted upward or downward because of any of the following considerations:
(a) reprehensibility of the defendant's conduct;
(b) net worth or income of the defendant or net profits;
(c) gain or profit that the defendant might have obtained from his or her harmful conduct;
(d) litigation costs borne by the plaintiff;
(e) whether the harm included physical injury.
Probability of Augmented Damages
Escaping Liability Multiplier
In sum, if you find the conduct at issue was undertaken with malice or recklessness, you should make a finding of reprehensibility (using the chart and its commentary and guidelines provided by the state) based on a scale of 1 to 20. Second, you should also determine an amount of aggravated damages necessary, if any, to compensate the plaintiff for personal dignity harms that were not already covered by the compensatory damages. This finding should be accompanied by an explanation of what facts you considered relevant to your determination. Finally, you should make, if necessary, a recommendation of the amount needed to pursue augmented damages for cost internalization of the harm and potential harm to this plaintiff. Recall that other victims of the defendant’s conduct might bring their own suits and you do not need to punish the defendant or extract compensation from the defendant based on harms that happened to these non-parties.
Retributive Damages: Some Constitutional Analysis
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law, recent scholarship, and retributive justice. Subsequent posts addressed: which misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions); how to bring rationality and fairness to determining the amount of retributive damages; and how to allocate the retributive damages among the state, lawyer and plaintiff. Yesterday's post focused on the case for developing an intermediate sanction of retributive damages that follows the structure described earlier.
In today's post, after the jump, I discuss the constitutional questions my proposal may raise and the discussion also includes a retributivist critique of the Supreme Court's recent decisions in Gore and State Farm that link punitive damages to a multiplier of compensatory damages. (Judges, lawyers, and clerks may be particularly interested in this discussion.) I also offer a brief conclusion. The next and last post in the series captures most of the policy prescriptions in this project in capsule quasi-jury instructions.
The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.
SOME CONSTITUTIONAL IMPLICATIONS
There are a variety of constitutional questions that might arise in response to re-tributive damages. Some of these questions I answer in the next installment of this project, where I address in greater detail the procedural safeguards for defendants. That said, I want to address constitutional issues that may arise regarding the structure of retributive dam-ages scheme described in Part III.
First, if a state chose to adopt a structure of retributive damages like the one de-fended here, that structure and the awards of retributive damages arising under it would be entitled, I believe, to far more deference from the Supreme Court than is normally extended to awards of punitive damages in common law jurisdictions. After all, the retributive dam-ages structure extends far more granular attention to the concerns of even-handedness, pre-dictability, impartiality, accuracy, and proportionality than does the common law method used in many jurisdictions; in so doing, the retributive damages scheme is more solicitous of the values informing interpretation of both procedural and substantive due process. Even if the Court refused to credit a careful legislative scheme of retributive damages with sub-stantial deference, in most cases, the outcomes from the retributive damages scheme I’ve described are sure to be compatible with the Court’s procedural due process cases and are very likely to be compatible with the Supreme Court’s excessiveness review under sub-stantive due process or even under the Eighth Amendment’s Excessive Fines Clause.
With respect to procedural due process, the structure of retributive damages is fully compatible with judicial and appellate review (per Honda), de novo review of retributive damages in federal courts (per Cooper Industries), and a prohibition on punishing a defen-dant based on harms to strangers to the litigation (per Philip Morris).
As to excessiveness review, the Court places primary importance on the degree of reprehensibility of the defendant’s misconduct. As described in Part III.B, reprehensibil-ity is the driving force behind the amount of retributive damages also. But the Court, after State Farm, also requires consideration of the “disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award”; presumes that double digit ratios between punitive damages and compensatory damages are incompatible with due process; and states that the courts consider “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”
The most salient problem that comes to mind regards the potential for the retribu-tive damages scheme to result in very high amounts of retributive damages awarded against very wealthy persons or entities who commit reprehensible conduct of the sort that might trigger a ten percent penalty. An award of retributive damages against Bill Gates, for instance, raises the possibility of multibillion dollar retributive damages. In a case where compensatory damages to the plaintiff are relatively low, such a result might be viewed as constitutionally suspect because of the supposed “disparity” between the “actual or poten-tial harm suffered by the plaintiff and the punitive damages award.” In other words, the multi-billion dollar award, when framed as a dollar amount, rather than as a percentage of net wealth, could, after BMW v. Gore, raise the proverbial judicial eyebrow.
One response to this problem is to note that those situations simply won’t occur too often, and if they do, these results should not be viewed as controversial compared to the various cases in which courts have upheld punitive damages awards that constitute a far higher percentage of net wealth or value than what I’ve suggested under retributive dam-ages. Moreover, because the legislature has passed a retributive damages scheme, sub-stantial deference should be extended to outcomes like these. Another and less palatable option is to acquiesce to judicial application of the State Farm “disparity” test, and accept reduced retributive damages awards in those unusual cases. A reduction of retributive damages in a given case on “disparity” grounds does not call into question the entire struc-ture itself even if one could reasonably complain that such reductions undermine commit-ments to equality since wealthy persons would benefit from unjustified downward adjust-ments.
A more intellectually serious response however would take issue with the Court’s “disparity” criterion altogether. In State Farm, a majority of the Court declared an affinity for the presumptive use of single-digit multipliers of compensatory damages. This pre-sumption, as applied to retributive damages, is highly problematic.
Since the reprehensibility analysis drives retributive damages and constitutional due process review, the real constitutional problem for the retributive damages regime is the disparity criterion, which asks whether there’s a reasonable relationship between the amount of harm or potential harm and the penalty imposed. Stated at that level of general-ity, and in conjunction with the Court’s emphasis on reprehensibility, there is likely to be little friction between the Court’s punitive damages jurisprudence and the retributive dam-ages scheme defended here.
But two problems come to mind: first, courts often uncritically conflate the harm or potential harm to the plaintiff with the compensatory damages actually paid. Second, after State Farm, a “reasonable relationship” has morphed into a judicial presumption against punitive damages awards that are ten times or higher than the compensatory dam-ages award. In what follows, I explain why both compensatory damages anchors and the presumptive single-digit multiplier are often misguided.
Using compensatory damages as an anchor for the disparity inquiry lacks sufficient justification, at least in cases involving or risking physical injury. In those situations, as explained in Part III.B.4, using compensatory damages as a benchmark for measuring re-tributive damages would create a signal of inequality of human worth since compensatory damages are often keyed to one’s economic status in life, not one’s political status wherein one bears the privileges and burdens of equal citizenship. It’s possible that compensatory damages are a useful baseline in cases involving only financial losses by plaintiffs who were not targeted on account of their lack of resources, but that’s a position that needs ar-gumentation, not conclusion by assumption.
The principal justifications for anchoring disparity inquiries off the shoals of com-pensatory damages are its administrability and the sense of finitude it provides. But both these factors underdetermine the doctrine because it would be equally administrable to al-ways award a billion dollars or zero dollars in extra-compensatory damages regardless of the tort or to impose a flat limit of $500 for punitive damages. Once we’re in the business of reasoning out extra-compensatory damages to reach a non-absurd result, we should be able to offer relevant reasons for our decisions. The current doctrine is substantially lacking one, especially because the cost-internalization proponents also criticize the use of com-pensatory damages anchors. Notwithstanding the fact that there is little justification for insisting on a relationship between compensatory damages and retribution or deterrence, some courts have uncritically fastened to it.
On top of the problematic use of compensatory damages, the disparity analysis is undermined by the Court’s preference for a presumption of a single digit multiplier, which may lead courts to apply the single digit multiplier even in cases where the rationales for retribution, victim-vindication, or cost internalization require more, either separately or in combination. Indeed, the preliminary evidence supports this concern.
Like the compensatory damages anchor, a presumptive single digit multiplier is re-puted to help achieve administrability and some degree of notice about the bounds of one’s liability. But even after State Farm, the pretense to such predictability is overstated. In-deed one might wonder just how much notice is afforded when juries can basically choose virtually any multiplier less than 10.
Importantly, administrability and notice are at least as well satisfied by the retribu-tive damages scheme. A guidelines-based reprehensibility scale is not substantially more difficult to apply than the determination currently made by juries, which judges subse-quently review in an hoc manner. More importantly, the retributive damages structure provides far more particular notice to defendants about their potential liability than is pro-vided for by the current regime of punitive damages regulation, wherein most assessments of punitive damages will receive a pass on scrutiny as long as it is nine times or less than the amount of compensatory damages.
Thus, especially in light of the Court’s stated aversion to regulating extraordinary criminal punishments against defendants, there would be little basis for objecting to civil penalties that would ensure the defendant did not profit from his action and that removed no more than (say) 10% of his wealth and would do so only in a manner where the defen-dant enjoyed the benefit of various procedural safeguards. Recall that retributive dam-ages also abide by an intent requirement by which a defendant should be given the oppor-tunity to internalize the values of retributive justice. Thus, if retributive damages were set so high as to economically destroy or bankrupt a defendant, that would go too far – at least from the perspective that views retributive damages’ purpose as an intermediate sanction, rather than one that results from a full-fledged criminal prosecution.
In sum, it is doubtful that the retributive damages structure is constitutionally in-firm. At worst, and assuming the Court extended no special deference to this intricate scheme of intermediate sanctions, it may mean that in certain cases, the jury’s award of an amount of punitive damages is deemed excessive, a determination that applies now in ju-risdictions that apply a whole range of structures and procedures, but which offer far less in the way of notice and even-handedness than the structure I’ve advocated. And, as I inti-mated earlier, a jurisdiction that took pains to structure the distribution of punitive damages in the careful manner advocated here would have, by my lights, done at least what is neces-sary to survive constitutional scrutiny under the Due Process Clause.
Indeed, in light of the fact that the Court has in the past allowed horrifically long sentences to be imposed on those whose misconduct is far less egregious than, say, Philip Morris’ conduct was, the structure of retributive damages—which would involve steep but relatively difficult to obtain awards of retributive damages—is a decent way of addressing the perverse approach the Court has adopted when portioning punishment over the last fif-teen years: i.e., with substantial excessiveness review of punitive damages and very limited review of excessiveness in the imposition of prison incarceration.
The last point about constitutional law worth mentioning here focuses on the de-fendant’s wealth. Recall from Part III that the reprehensibility of the defendant’s miscon-duct will in turn track a percentage of the defendant’s wealth (or net value, in the case of entities). Various jurisdictions around the country currently inform juries that they may consider the defendant’s wealth in trying to figure an amount of punitive damages that will adequately punish and deter the defendant. The Supreme Court has not held that a de-fendant’s wealth cannot be factored into the amount of punitive damages. Rather, what the Court has said is that wealthy defendants are just as entitled to fair notice as “impecunious individuals.” The structure of retributive damages discussed in Part III provides constitu-tionally adequate notice designed to communicate that sanctions for reckless or malicious wrongdoing won’t be mere luxury taxes on the rich.
Structured properly, retributive damages awards are a pragmatic form of redress against anti-social misconduct, especially when undertaken by wealthy and powerful enti-ties. In this respect, there’s a real synergy between retributive damages and the work of “social justice” tort theorists. On the other hand, a dose of retributive damages is strong medicine, and it needs to be distributed far more sensitively to the values of equality, pre-dictability, and modesty than the careless way punitive damages are currently awarded and reviewed by courts.
This Article, the first of a trilogy, has tried to extend substantial consideration to these and other relevant concerns. Providing a framework to translate the values and limits of retributive justice into a practical scheme of retributive damages, the Article has identi-fied what sorts of conduct should warrant this intermediate sanction, what factors should inform the amount of retributive damages, and who should receive retributive damages and in what relevant proportions. While this Article provides the foundations of retributive damages, in truth, more needs to be said about their contours: specifically about how to implement retributive damages in simple and complex litigation contexts. In the com-panion articles to this one, I take up that challenge.
Thursday, March 27, 2008
ISO Dissident Directors; Must Like Vista and Angering Yahoo Employees
The Bear Stearns imbroglio has sucked up much of the attention that would have otherwise been lavished on the Microsoft-Yahoo showdown. Here's a snippet from that drawa:
One of the next steps in the Microsoft-Yahoo melodrama is for Microsoft to nominate a slate of directors to replace the ones it will try to get fired at Yahoo's shareholder meeting . . . . The problem? The "word on the street" is that Microsoft can't find anyone willing to take on the job . . . .
Potential directors are reportedly--and understandably--concerned that the filing of a slate of dissident directors is just a negotiating move by Microsoft, one that isn't worth destroying Yahoo and Valley relationships for.
An anonymous source, along with a bunch of the commenters, believes this story is "horsefeathers." Regardless, it is a taste of the fun to come.
Caps off for Obama? Med Mal and the '08 Election
Here is a legal/policy question that is not yet a big election issue but will surely soon become one: Should punitive and other tort damages be capped by the feds?
McCain urges such caps for medical malpractice damages as part of his health care reform plan. By contrast, in 2005, Obama has rejected caps on med mal damages, instead co-sponsoring (with Hilary Clinton) S. 1784, a bill to protect physicians from liability if they disclose their past medical errors and enter into settlement negotiations.
Who is correct, and why?
One reason to oppose such caps is federalism: Tort law is a traditional area of state concern, and attitudes towards punitives vary based on region, with some regions dominated by a populist, anti-corporate attitude reminiscent of Andy Jackson (e.g., Oklahoma, the southern Midwest, East Texas, Alabama). Why not let different regions go their different ways and not impose the ideals of ATRA on the nation as a whole?
The obvious response is that, when juries in East Texas impose liability on corporations in Michigan, they externalize costs on outsiders in a way that is undemocratic and inefficient.
But does this traditional “avoid externalities” argument apply to medical malpractice? The choice of law rules for med mal are unusually well-settled: The law of the place of performance of the services applies. So any potential defendant can avoid the costs of a pro-plaintiff state’s tort law simply by not providing services in that state. In other words, unwilling defendants do not get dragged into unfriendly jurisdictions against their will in med mal. States thereby internalize the costs of their tort regimes: Pro-plaintiff states have higher malpractice insurance premiums and fewer doctors.
Given the clarity of the choice-of-law regime in med mal, isn’t this an especially inappropriate area for federalization? If the answer is “yes,” then are not both Obama and McCain wrong to suggest the federalization of much of this area of law? To be sure, Obama avoids caps on damages. But why impose any federal limits on med mal liability? Why can’t the states handle this area?
U.S. News-Related Question
Should students look at bar passage rates (relative to a pertinent jurisdiction) in deciding whether to attend a particular law school? From reading some of the comments to Dan Solove's U.S. News rankings post here, it seems that some students do. I suspect, though, that one's likelihood of passing the bar is probably mostly explained by things the student already knows about himself before picking a law school, like his college GPA and LSAT scores. Has anyone ever examined how much law student bar passage rates are explained by pre-law school variables relative to, say, the U.S. News ranking of the law school from which the student graduates?
Pre-Edison Sound Recording
The New York Times has a very interesting article about a sound recording made about twenty years before Thomas Edison's famous "Mary Had a Little Lamb" recording:
The 10-second recording of a singer crooning the folk song “Au Clair de la Lune” was discovered earlier this month in an archive in Paris by a group of American audio historians. It was made, the researchers say, on April 9, 1860, on a phonautograph, a machine designed to record sounds visually, not to play them back. But the phonautograph recording, or phonautogram, was made playable — converted from squiggles on paper to sound — by scientists at the Lawrence Berkeley National Laboratory in Berkeley, Calif.
“This is a historic find, the earliest known recording of sound,” said Samuel Brylawski, the former head of the recorded-sound division of the Library of Congress, who is not affiliated with the research group but who was familiar with its findings. The audio excavation could give a new primacy to the phonautograph, once considered a curio, and its inventor, Édouard-Léon Scott de Martinville, a Parisian typesetter and tinkerer who went to his grave convinced that credit for his breakthroughs had been improperly bestowed on Edison.
The article seems to suggest that Scott had no intention of playing back the recording. He simply thought that sound should be recorded visually. The story might have been even more dramatic, however, if Scott had intentionally recorded the sound in the hopes that future technology would be able to decode it and play it back. Then, it would give hope to people everywhere who are working on not-yet-ready technologies like cryogenics (we can freeze you but can't unfreeze you and bring you back to life) and, perhaps, SETI broadcasting efforts (where we beam signals into outer space in hopes that current or future intelligent beings will be able to decode them).
I recently saw an episode of Mythbusters, where they tested the idea that recorded sounds might appear in ancient pottery (e.g., a piece of wheat pressed against a potter's wheel might make grooves reflecting ambient ancient conversation.) For what it's worth, the Mythbusters couldn't (re-)produce the effect. (BUSTED!) I can only imagine how valuable it would be to hear snippets of really old conversations. Then, we might finally know how well Paul Giamatti is doing at a John Adams impersonation.
Incidentally, IP professors may find the New York Times article particularly interesting, as Scott gripes in his memoirs about the fact that he and the French people received little acclaim for Scott's accomplishments compared to Thomas Edison. The article ends, not surprisingly, with the requisite consolation that "yes," Edison is still totally cool.
Retributive Damages: The Case for Partial Outsourcing of Retributive Justice to the Tort System
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law, recent scholarship, and retributive justice. Subsequent posts addressed: which misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions); how to bring rationality and fairness to determining the amount of retributive damages; and how to allocate the retributive damages among the state, lawyer and plaintiff.
Today's post focuses on the case for developing an intermediate sanction of retributive damages that follows the structure described earlier. The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.
MOTIVATING RETRIBUTIVE DAMAGES
Knowing what they look like, we can now try to explain the affirmative rationale for retributive damages awards. Section A examines the particular strengths of retributive damages against powerful and wealthy entities and individuals in particular. Section B ex-plains what a retributive damages scheme in general can achieve. Section C summarizes these benefits and articulates the comparative advantages of retributive damages vis-à-vis compensatory damages, class actions, criminal sanctions, and extra-compensatory damages awarded for victim-vindication or cost-internalization. Last, in Section D, I explain why retributive damages should remain a supplement to, rather than a substitute for, traditional criminal punishment.
A. Retributive Damages Against the Wealthy or Powerful
Perhaps the most important reason for making retributive damages available is to facilitate a modest form of punishment that is otherwise especially difficult to obtain against wealthy and powerful persons and entities. In other words, even when the criminal justice system would normally seek to punish offenders for serious wrongs, it might be par-ticularly difficult to do so when the offender is a wealthy or powerful person or entity. In such situations, retributive damages proceedings might generate relevant information (spe-cifically information related to a defendant’s mens rea) for possible subsequent prosecution efforts against the defendant or related parties by the state that would not be made available by relying on compensatory damages suits alone.
1. Obstacles to Investigating Misconduct
Retributive damages schemes are attractive because they help overcome the diffi-culties associated with the historically scant investigation of wrongdoing by powerful and wealthy individuals and entities. As Professor Darryl Brown points out, many kinds of white-collar or corporate misconduct are harder to investigate because, compared to street crime, they are both more private (in the sense of obscured from view) and more complex.
In terms of privacy, the misconduct perpetrated by the wealthy and powerful oc-curs largely indoors, and as Professor Bill Stuntz, among others, noted various criminal procedure doctrines protect privacy. Coupled with the fact that inculpatory documents might be shielded by privilege available to those who can afford counsel before arrest, it is no surprise that the misconduct of wealthy and powerful entities and persons will more likely be obscured relative to the misconduct of those lacking substantial resources and op-erating in plain view of others.
Additionally, investigation of misconduct by wealthy and powerful persons and entities is impeded by the complexity of the criminal activity. As one former prosecutor put it, “The history of punishment in corporate cases is not very good,” because often “[t]hese are complex schemes, and it's sometimes difficult to unwind them from an investigative standpoint and ultimately explain them to a jury.” And as Professors Galanter and Luban have cogently explained, there are many times when reliance upon state-initiated investiga-tions is inadequate to the task of ferreting out the type of malfeasance that passes the repre-hensibility threshold associated with punitive damages.
To see how this pattern unfolds, consider the difficulty of detecting malfeasance in the context of manufacturing activity. Imagine a defendant manufactures a product and in the course of its design makes various calculations not to disclose substantial hazards that might be associated with its design. Consequently, various users are injured across the country. The local and state police are unlikely to detect problems with the product out-side their locality, at least initially. Moreover, the law enforcement authorities will have no reason to suspect that there were culpable decisions made at the company headquarters, of-ten in another state and outside their jurisdiction. As Professors Galanter and Luban de-scribe the problem,
Even federal authorities will have no reason to believe that anything other than a typical series of accidents has occurred unless they perform a statistical analysis of the pattern. Suppose, then, that punitive damages were replaced by criminal sanctions in morally culpable product liability cases. Law enforcement would re-quire statistical analyses of all patterns of automobile accidents, and appliance ac-cidents, and pharmaceutical accidents, and heavy equipment accidents, and on and on, around the country, which is utterly impossible. Even if it were possible, the analysis would overlook those culpable injuries that do not leave a statistical fin-gerprint behind them. Finally, once an investigatory agency becomes convinced that an offense has occurred, it would have to investigate the offending company to establish culpable negligence. No federal agency has or could have the resources to carry out so many investigations, nor would we be likely to welcome a federal agency that is such a nosy intruder.
As Galanter and Luban observed about Ford’s failure to recall the Pinto, “the re-peated pattern of [car crashes and subsequent burnings] indicating a defective design emerges only after we consider evidence from many different states and jurisdictions. Thus, the entire pattern will not typically be investigated by state authorities.”
Similar difficulties occurred in the aftermath of the Catholic clergy sex abuse scandals, where Church officials suppressed vital information about the misconduct of its priests. In various jurisdictions where the Catholic Church had close relationships with local prosecutors and police officials, public investigation into the Church’s role was sty-mied because of affinities between officials and the Church. As described by Professor Lytton, only after dogged use of discovery and other private litigation tactics were plain-tiffs’ attorneys able to reveal the extent of the complicity by higher officials within the Church. In many situations, only once private litigants shared their information to the me-dia did law enforcement and state legislatures grapple with the misconduct they were oth-erwise ignoring or downplaying.
These examples illustrate how complex and private misconduct by wealthy or powerful individuals or entities can be quite hard to detect in the course of activity both within and across jurisdictions. Moreover, relying exclusively on public agencies to de-tect this misconduct is an inadequate strategy in a world governed by non-ideal conditions of democratic deliberation and scarce social resources. Indeed, in a regulatory environment often affected by agency capture, we should probably expect spotty government inspec-tions. As one agency official noted recently: “Private enforcement is a necessary sup-plement to the work that the [agency] does. It is also a safety valve against the potential capture of the agency by industry.” Indeed, even when government forces desire investi-gations, access to vital information may be impeded or blocked altogether by competent white-collar criminal defense lawyering. Needless to say, the threat of agency capture and obstructionist lawyering might also serve as obstacles to governmental prosecution of wrongdoing by powerful and wealthy persons or entities. Because of these impediments, it is unlikely, though not impossible, that a cadre of state investigators will effectively under-take national research—and then file suit at each of the state levels.
Although such coordination efforts can happen through the promise of compensa-tory damages alone or in a class action, there are two reasons to think retributive damages as I’ve described them are be an important supplemental tactic to achieve adequate detec-tion and punishment of private or complex misconduct. First, with compensatory dam-ages alone, the lawyers are not incentivized to inquire into the aspects of the defendants’ misconduct that reveals a reprehensible state of mind or mens rea. Satisfying the elements of a case that require mens rea is, on average, more expensive to pursue than satisfying the elements of a case that need only show negligence or strict liability. Without fees for re-tributive damages available, lawyers may decide to settle cases that involve culpable mis-conduct too cheaply. Second, if compensatory damages are really designed to compensate plaintiffs for actual harms to them, it hardly seems right that their lawyers should take a share of that compensation rather than be paid by the malfeasant defendant separately. The bill for the lawyers should not be conflated with the harms to the plaintiffs.
Because inducing public investigation of wrongdoing against financially formida-ble persons or entities within society is sometimes difficult to achieve, the prospect of obtaining (fees and rewards for) retributive damages motivates plaintiffs and lawyers will-ing and financially able to ferret out whether harms or risks were culpably undertaken. In short, retributive damages may work as an effective supplemental strategy of law enforce-ment, a form of sousveillance against the rich and powerful who might otherwise evade the surveillance undertaken by public law enforcement agencies.
2. Obstacles to Prosecuting Misconduct
Beyond simple investigation, we must also consider the comparative difficulty of prosecuting crimes (or claims generally) against wealthy persons or entities. Such “white-collar” defendants often have excellent counsel, and, conventional wisdom to the contrary, are often able to overwhelm the relatively scarce resources of the prosecution, es-pecially at the state level where the bulk of wrongdoing is prosecuted and punished. Put more modestly, skilled defense counsel will be effective, at least on the margins, at making the unreasonable seem reasonable, which is particularly helpful for defendants trying to es-tablish reasonable doubt about the ambiguous areas of moral wrongdoing sometimes asso-ciated with white-collar misconduct. As Galanter and Luban have noted, a variety of fac-tors help make prosecuting white-collar conduct more difficult:
White-collar criminals have more influence over sources of damaging information; the evidence of white-collar crimes may be more dispersed and less exposed; the definition of the crimes is typically more ambiguous, so that defendant behavior is more likely to look marginally legal and get the benefit of the doubt from prosecu-tors and judges; white-collar criminal defendants have more resources and are more sophisticated; agencies investigating white-collar crimes are more likely to allow precharge adversary hearings in which the defendant's lawyer can argue against indictment; the government is less likely to make arrests or physical searches in white-collar cases; white-collar indictments are more delayed, allowing better preparation for defense; and the defense lawyer in white-collar criminal cases is usually better qualified.
To be sure, the odds for federal prosecutors have substantially improved against corporations and executives, particularly in recent years with respect to securities fraud. Prosecutors now routinely use threats of conspiracy prosecutions against low-level execu-tives to secure cooperating witnesses, and through those witnesses, they can generate copi-ous amounts of information about the more senior officials and the misconduct within the corporate bureaucracy. Additionally, in some jurisdictions, prosecutors offer leniency for the “fruits of employer coercion of employees to waive their rights to silence,” waiver of the entity’s attorney-client privilege, or the termination of indemnification of attorney fees to the entity’s agents. Taken together, these constitute increasingly powerful incentives for persons or entities to share information about potential culpability.
In response, critics have sounded alarms over the sweeping effects of such appar-ent over-criminalization and over-enforcement, suggesting instead that much of this mis-conduct is better left addressed through the civil, not the criminal, system.
Unfortunately, the impediments to effective redress in the civil system are difficult to surmount, especially in a world without ready access to remedies like retributive dam-ages. The result, according to Professor Christine Hurt, is a criminal system that creates too much risk of severely punishing conduct that is not all that egregious while at the same time failing to ensure adequate redress against those whose actions warrant, at the very least, some form of intermediate sanction. In other words, it’s a system with too great a risk of Type I errors in the criminal context and too great a risk of Type II errors in the civil system.
3. The Low/High Problem With Criminal Penalties As Applied
The apparent imbalance espied by Professor Hurt suggests that retributive dam-ages, if properly designed, might also provide a way around what might be thought of the “low/high” problem as it applies especially to corporate criminal activity. As various scholars have demonstrated, non-custodial criminal penalties against persons and entities have in the past tended to be extremely low, often rendering them mere “costs of doing business” rather than signals that the conduct in question should be categorically prohib-ited. Additionally, notwithstanding the social stigma typically attaching to criminal con-victions, individuals within corporations themselves may feel somewhat insensitive to that stigma because responsibility for particular misconduct is dispersed across persons, place and time. The consequences are predictable in such situations: defendants might view fines as prices, not sanctions.
For example, where state fines were set too low, railroads in Wisconsin repeatedly ignored their lack of compliance with rules necessitating repairs that could cause fires to brush that had not been removed from the area around the tracks. Only after a substantial punitive damages award was levied against the railroad did the company strengthen efforts to ensure compliance with the rules governing maintenance and brush-clearance issued by the state’s Department of Natural Resources. Similar examples abound. As alluded to earlier, legislatures have responded selectively to the problem of low penalties in recent years. In the federal context, the focus of these high penalties has been on preventing and punishing securities fraud.
But with these high criminal penalties lies an additional problem, related to con-cerns of proportionality: overkill in the form of disproportionate punishment. Critics of corporate criminal liability have raised concerns about the danger that indictments against the corporation pose: in particular, they might destroy the entire company and the jobs of innocent persons instead of focusing on the malfeasance of the bad actors or the failure of the managers and owners to adequately control the bad actors. Consequently, companies might be both too weak (against the perils associated with corporate criminal prosecution) and too strong (against regulatory powers where the investigative functions are stymied or corrupted through capture or rent-seeking). As a result, the prospect of a retributive dam-ages scheme as an intermediate sanction expands the arsenal of tools to facilitate compli-ance and the detection and punishment of misconduct by wealthy and well-organized per-sons or organizations.
B. What Might Retributive Damages Achieve Generally?
This section explains why retributive damages might be a socially beneficial policy prescription broadly speaking. In light of the account in Part II, it’s not especially hard to see why we might establish a system of criminal law and punishment to serve these pur-poses. It is a bit harder to see why we might additionally use a civil system to impose re-tributive damages. Why not simply invest more social resources in the criminal justice sys-tem if we are concerned that the project of retributive justice is being given short shrift? Retributive damages are not necessarily a more efficient sanction, but they may be ap-pealing for reasons described below.
1. Retributive Justice in the Real World
Making retributive damages available provides society some flexibility it might not otherwise have regarding allocation of public resources. To see why, we must first appreci-ate the major differences between a retributive damages action and a criminal penalty: a) criminal penalties are usually prosecuted exclusively by a state attorney, b) defendants in American criminal actions are entitled to a richer panoply of procedural safeguards, c) criminal penalties often lead to a host of collateral sanctions, and d) criminal penalties may include prison time for individual defendants. The combination of these factors works to create a stronger social stigma or condemnation of the defendant than there would be in the absence of these factors. Of course, retributive damages are still a coercive condemnatory sanction that sets defendants back in a position worse than where they were prior to the misconduct; thus, they do serve to effectuate retributive justice. But those differences ren-der retributive damages an intermediate sanction, lying between compensatory damages and criminal penalties.
A society that did not want to spend scarce prosecutorial resources investigating and prosecuting minor wrongs could nonetheless make available a legal forum where per-sons can seek bring actions against malefactors whose misdeeds have failed to trigger criminal prosecution because of more urgent priorities in prosecutors’ offices. The bare reality is that prosecutors typically don’t have the resources to investigate and prosecute all the criminal conduct that arises. Thus the tort system serves as a corrective to public in-action in some cases, allowing private parties to vindicate the kinds of wrongs the criminal system might, in a fully-funded world, pursue. Insofar as the CCR not only permits reason-able punishment but also encourages the punishment of legal offenses (to reduce Type II errors and avoid the sense of impunidad that would be communicated to offenders and ex-pressed to the public), a retributive damages structure is a way of dealing with scarce pub-lic resources that must be allocated among a variety of compelling moral priorities. Of course, if this is the rationale, we need to ensure that defendants receive procedural protec-tions necessary for imposing an intermediate sanction on them: access to counsel, an in-termediate standard of proof (i.e., clear and convincing evidence), protections against du-plicative punishment for the same misconduct toward the same victim; and guidelines that both inform and limit the amount of penalties a defendant faces on account of its miscon-duct.
A second general rationale for a retributive damages scheme is that it might better facilitate the promotion of proportional sanctioning between misconduct and penalties. Re-tributivists and others might want a softer sanction for misconduct that is not worthy of be-ing deemed or condemned in the strongest terms as “criminal.” Allowing for retributive damages facilitates that goal, in particular because incarceration and collateral sanctions (e.g., disenfranchisement, residency restrictions) would not attach to the award of retribu-tive damages under this proposal. Thus, in some cases, retributive damages might be a penalty that seems suitable to the comparatively less severe wrongdoing at hand. Because of the collateral consequences ensuing from a criminal conviction, even a criminal fine might be viewed as too onerous a penalty for certain misconduct. Thus, prosecutors could look at successful retributive damages actions and determine whether additional prosecution is appropriate.
One might respond by simply asking to expand the range of criminal sanctions so that some criminal penalties do not carry collateral consequences in less severe cases. That’s not a bad idea, as far as it goes. But if we think there is something distinctive and worth preserving about the higher level of condemnation communicated through a criminal sanction compared to the presumably lower level of condemnation communicated with a civil sanction, then keeping some of the relevant and reasonable collateral consequences of conviction might better facilitate the realization of that gradation. And inasmuch as ex-panding the range of criminal sanctions would serve, arguendo, to impede the availability of retributive damages in the tort system, it would likely impede the realization of retribu-tive justice in situations of scarce public resources, such as those discussed immediately above.
3. Encouraging Market Transactions
Imagine X Corp wants to develop a product for consumers. Y Corp makes a simi-lar product using proprietary information. X Corp decides to steal Y Corp’s information and manufactures the new product at a lower price than Y Corp. By ensuring that X Corp will be in a worse position if it is caught for its theft, the availability of retributive damages encourages market transactions with respect to misconduct that violates property rules, that is, those rules which require parties to negotiate over the transfer of legal entitlements prior to their exchange. When a defendant knows he has to pay more in excess of its gain or the harm caused – and retributive damages will always exceed more than the greater of these two figures – a defendant in X Corp’s position should prefer to bargain. Unsurpris-ingly, this is part of the logic behind some criminal penalties too.
This structure is beneficial for two reasons. First, the transaction costs associated with ex ante bargaining in the marketplace are likely to be lower than those associated with ex post litigation in the courts. Second, to the extent that fewer potential defendants take rights (and possibly pay for them ex post through the tort system), it helps eliminate the wasteful precautions associated with trying to prevent mistreatment of one’s rights. At the same time, retributive damages might perform this task more cheaply or effectively than use of criminal sanctions, since there are fewer deleterious consequences to the defen-dant and fewer costs associated with enforcing the rights of criminal defendants. If we want to encourage market transactions at a cheaper social cost than criminal penalties, which often have socially burdensome and problematic collateral sanctions associated with them, retributive damages might provide a superior tool to do so, at least in contexts in-volving violation of property rules.
C. The Comparative Benefits of Retributive Damages
As Nietzsche pointed out, punishment’s utilities are overdetermined. I take the central benefit of retributive damages to be the fact that their availability helps effectuate the good of retributive justice by reducing the incidence of Type I and Type II errors. By imposing an intermediate sanction only on reckless or malicious wrongdoing, a retributive damages scheme will facilitate conventional criminal law punishment against those pock-ets of society that have traditionally been able to resist punishment by virtue of the rela-tively private and complex nature of their misconduct. This misconduct would, ex hy-pothesis, otherwise be on the agenda of the prosecutor’s office but, because of difficulties in detecting the private and complex wrongdoing, escape such condign punishment. Re-tributive damages schemes also: facilitate legal condemnation for wrongdoing that is not on a prosecutor’s office agenda because of pressing budget constraints and political re-sponsibilities (or improper external pressures); afford more granular proportionality be-tween misconduct and penalty and thus avoid overkill by use of criminal indictments against corporate entities; and encourage market transactions and concomitantly reduce so-cially wasteful expenditures on preventions against unauthorized takings or violations of rights. To the extent retributive damages can aid in achieving these purposes, one can see what public benefits might accrue from the availability of awarding retributive damages to the state and private plaintiffs.
One might wonder whether some of these benefits arise when extra-compensatory or compensatory damages are available on non-retributive grounds and in class actions. Below is a chart in which I summarize how retributive damages would stack up against re-liance upon other remedies and mechanisms. [OMITTED. SEE ARTICLE ON SSRN FOR CHART.]
As one can see, class actions seeking only compensatory damages might address the incentives problem for lawyers to bring cases of misconduct. But so long as they were seeking compensation for the plaintiff or cost-internalization for the class of plaintiffs, they would not need to inquire into evidence that indicated malice or recklessness. That de-prives the state of knowledge possibly relevant to imposing retribution on wrongdoers and issues no judgment of condemnation. From an economic perspective, compensatory dam-ages simply price behavior rather than punish it, allowing defendants to undertake all sorts of misconduct if they are willing to pay damages. If extra-compensatory damages were awarded on the grounds of cost-internalization alone, they would suffer from the same problem. They would leave the defendant no worse off than a position in which they sim-ply price their conduct according to its harms. Damages designed to achieve cost internali-zation might be appropriate when the defendant acts with adequate regard for the security and well-being of others, but they are inadequate, on a retributivist rationale, when the de-fendant’s misconduct evinces grossly insufficient care for the interests and well-being of others.
Extra-compensatory damages might also be contemplated solely for the purpose of victim-vindication (what I have called “aggravated damages”). These aggravated damages would go to the plaintiff as compensation for uncompensated dignity harms (separate and apart from pain and suffering). While aggravated damages might encourage lawyers to fer-ret out evidence of a defendant’s state of mind, they would fail to do much for the public’s interest in retributive justice. That’s because with aggravated damages, the victim is em-powered to seek or not seek such damages; Type II errors are more likely, since the victim-vindication model doesn’t purport to restrict the plaintiff from either forbearing from seek-ing punitive damages or to settle at an amount lower than what is necessary to signal to the defendant to forbear from such misconduct in the future. Moreover, proponents of victim-vindication models haven’t embraced any real constraints on jury discretion, which gives awards of punitive damages a very ad hoc veneer.
Importantly, while retributive damages have some distinctive advantages, there is no good reason to doubt that they can interact well with cost-internalization strategies (like class actions for compensatory damages) to avoid working at cross-purposes or duplica-tion. While I leave that proposition to defend in the next article, for now, I hope I have brought into better focus the intelligibility and advantages of retributive damages as com-pared to compensatory damages, criminal sanctions, or damages designed to achieve cost-internalization and victim-vindication.
D. Why Not Private Criminal Punishment?
Thus far I have explained why the state would be interested in outsourcing part of its investigative and prosecuting functions to private parties and why such outsourcing would not be inherently disruptive to the project of retributive justice. What I also need to explain is the attractiveness of retributive damages vis-à-vis the private enforcement of the criminal justice system. Some of the benefits described above might arise if we had statutes that permitted private citizens to serve as prosecutors under the criminal law, or if we had mechanisms that allowed private citizens to compel prosecutions in the criminal justice system, or at least forced prosecutors to give reasons for declining to prosecute certain ac-tions.
Without arguing that retributive damages would be a superior strategy to all these other mechanisms, let me raise a few cautionary points. If we allowed only private actions brought under the criminal law, we would lose both the expertise and the disciplinary op-portunities to keep the prosecutor in check, facts that occur as a result of the government serving as a repeat player in the criminal justice system. There would also be a risk that the criminal justice system’s moral credibility would be undermined (further?) since only those with time and resources would serve to prosecute claims and that would systematically dis-advantage the poor.
If we allowed a private right of action under the criminal law to supplement rather than supplant the government’s work, other problems unfold: there might be races to the courthouse between public and private representatives to avoid double jeopardy concerns; government prosecutors would have less incentive to do its job if the private sector could wholly displace it; and, most importantly, we might have a higher error rate of both Type I and Type II kinds if private citizens’ or their hired agents couldn’t be counted on to do their work competently, diligently, and fairly in large part because they were not repeat players and because they could reasonably be viewed as more biased (whether consciously or unconsciously) against possible defendants. It would also be hard to imagine how one privatizes prosecutions without privatizing the investigative function of police too.
A more modest proposal would be to allow private citizens to lodge complaints or request explanations for prosecutorial inactivity, but that’s something that already exists in a few jurisdictions, and fits compatibly with our current regime and a scheme of retributive damages. Another alternative, which some have suggested, would be a public regulatory system with fines and sanctions, and rewards and lawyers’ fees for whistle-blowers who call attention to unsafe products or conditions, the detection efforts of which can be dele-gated to private attorneys general who might not be actual victims. Assuming this model introduced intermediate sanctions and had the procedural safeguards defendants would need, this model could plausibly achieve many of the benefits retributive damages actions seek to achieve. However, it is unclear whether an adjudication and penalty through an administrative agency would suffice in actually conveying the condemnation through communal judgment that a judgment of retributive damages would through the use of a jury trial and/or judge. Moreover, there might be some efficiency gains by having retribu-tive damages actions ride piggyback to the tort system. If we relied on a public regulatory system to do some of the work done by punitive damages now, it might require the devel-opment of a whole new governmental apparatus. Indeed, a public regulatory system, at least as some of its advocates would have it, also requires the introduction of large social insurance schemes to replace tort law. My sense is that these alternatives are not meant to render retributive judgments but simply to ensure compensation and deterrence more effi-ciently.
By contrast, the basic structure for retributive damages already exists within our extant tort law system and would require just a few modifications. Indeed, if a state wanted to be serious about retributive damages as a fair scheme of imposing an intermedi-ate sanction, there are only a handful of critical and relatively straightforward steps it must take. First, pass a statute that says retributive damages will be available for X, Y and Z kinds of misconduct. Second, declare which, if any, of these wrongs (just X and Y?) are enforceable by private attorneys general after the government has declined to sue. Next, indicate that all suits must initially allege retributive damages in the complaint and that all settlements will have to be approved by the court and the attorney general's relevant office. Then, devise guidelines and commentary to track reprehensibility and assess what percent-ages of wealth or net value will correspond. Fifth, draft instructions for juries on retribu-tive damages inspired by the instructions appended to this article. Last, allow defendants to credit retributive damages against any subsequent criminal penalties.
Wednesday, March 26, 2008
Should Professors Disclose Political Opinion to Students?
James Poniewozik argues in his recent column in Time that journalists should publicly disclose their voting records. It has long been sacrosanct for reporters to avoid ever revealing their political preferences or party affiliations. Poniewozik’s challenge to this longstanding dogma makes for fascinating reading. Before reading his piece, I had always figured, without thinking about it too much, that reporters’ public profession of agnosticism was a good idea. Now, I still do, but I admit Poniewozik’s piece has forced me to ask myself why.
His argument is that disclosing political preferences would make political journalism more trustworthy. I’m dubious. But it is interesting to import the questions he raises into our own circumstance, as law teachers.
How should law professors deal with disclosing political convictions in the classroom? At the lectern, the question is usually not whom you prefer for president, but which side you take in politicized legal controversies – tort reform, the exclusionary rule, tenants’ rights, the constitutional right to abortion, etc.
Should law professors come clean to students on issues such as these?
For myself, in Torts and my other classes, I tend toward disclosure. But I try not to be too quick about it – I don’t want my side-taking to preempt good class discussion. But disclosure has a downside. As soon as I disclose my beliefs in the name of intellectual honesty, I worry about crossing the line to using class as a platform for spouting opinion.
And that, I suppose, is why I am comfortable with campaign beat-reporters veiling their own politics. It’s not that we, the readers, shouldn’t have access to the information. It’s that reporters, through the exercise of carefully keeping their politics private, engage in a kind of discipline and self-restraint that, at least potentially, makes them better reporters.
Race, Gender, and Making Exceptions
As a resident of Ohio, I feel eminently qualified to comment on the candidates in this election (and, by negative implication, I am not particularly qualified for any other reason). One thing that occurs to me in all the talk about Obama and race is that we in the US (and perhaps elsewhere) have virtually always made "exceptions" when it comes to race - that is, we see some people as "not really" black, for example. Think of OJ Simpson (pre-indictment), Tiger Woods, or Colin Powell. (Or, for the reverse phenomenon, consider Eminem.) People acknowledge the race of those individuals, of course, but they seem to be immune to racial biases and prejudices that other racial minorities face. It seems that Barack Obama is at times in this category, and that some of the race-card-playing that is going on in the campaign may be directed at moving him out of that category.
By the way, to be clear, I am not suggesting that at all that it's a good thing that we consider some people to "not really" belong to a certain race - it's just a phenomenon that I am certainly not the first to notice.
Yet, at the same time, that phenomenon does not really exist for gender, does it?
Has there ever been a woman, at least in US history, who has been immune from the biases and expectations of her gender because she is considered "not really" female (at least in any sense that is not totally denigrating)? Of course, in some of the race examples I gave above, the individuals are multi-racial, and perhaps this plays a role in some people's minds; there is obviously much less "mixing" that is possible in terms of gender. But in any case, are there any such examples of "crossing the gender line? "
The Point of Sabbaticals -- My Experience
A bit over a year ago, I did a guest blog post about the prospect of going on sabbatical. What, I wondered, would I accomplish and what exactly was the point of a semester with no teaching or committee duties? I post now not just to satisfy what I assume is the curiosity of millions and millions of my fans about me personally, but also to talk about the sabbatical experience more generally, having now actually completed one.
In short, I planned to do a zillion things, did only some of those, and wound up doing a number of projects that weren’t on my list but were very rewarding. My main goal was to learn about international and comparative labor and employment law (with the idea of either teaching a class later or publishing something). Also, I was also going to read all those law review articles and books on various topics piled up on my desk; look at the subjects I teach with new eyes; come into the office only rarely; and generally recharge my batteries (despite not really knowing what that meant). Oh, and I was going to improve my guitar playing and French language skills, get in better shape, spend more time with the family . . . .
As it turned out, I did learn some things about international and comparative labor law (and had a fun time being a commentator on a panel on that subject at the LSA conference in Berlin). I may teach a class in that area in the future, but I never felt I had anything interesting enough to say about it to write an article. Instead, I wound up starting work on a project with some other law prof to write a new casebook (one that covers both private and public sector labor law, a brilliant idea, really). I wrote a couple of short book reviews for the Journal of American History and the Law and History Review. I gave a couple of papers (which may or may not turn into articles). I’m still not Jimi Hendrix, fluent in French, or a marathoner, but I’m a little better in all those areas. And I loved hanging with my then-three year old son.
So, are sabbaticals justified as something other than a perk? Well, I had more time for scholarship. I got into a new field in depth and still had time to commit to another, quite different, major project. I could spend a few weeks to generate a short book review, one not even in a law journal; it would have been harder to justify the time for that given a full workload. I conceptualized how I could teach a new class (yes, folks do this while working a full load, but it’s easier when you’re not). As to my batteries, I dunno: I generally like my job quite well, so I didn’t really feel burned out. But I could see how some folks could benefit from some time off, especially in schools with political or other internal tensions (fortunately, my school doesn’t have any serious issues along those lines). The absence of some committee work probably brightened my mood as well as creating more time.
Regrets? I honestly did miss teaching (not grading, though). I probably came into the office more than I should have. And one can be tempted, on some days, to treat a sabbatical more like a vacation, which isn’t the point. Finally, I never did write, stage, and star in, "Public Sector Labor Law: The Musical!" But I have another sabbatical coming up in just over six years. . . .
Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
Writing here in The New Republic, Robert Gordon has a notable commentary entitled "Criminal Intent: The presidential candidates need to stop ignoring America's crime problem — and start considering innovative solutions." Here is how the commentary begins:
Here's a funny thing about this presidential campaign season: Two crime dramas — "The Wire" and "Law & Order" — have gotten more attention than actual crime. Twenty years ago, with the crack epidemic peaking, George Bush rode to victory using Willie Horton against Michael Dukakis. Now, with the violent crime rate one-third lower, Republicans no longer try to paint Democrats as soft on crime, and Democrats no longer feel the need to prove themselves tough on the issue. Campus shootings in Virginia and Illinois have barely registered politically, and President Bush's evisceration of aid to local cops has received little attention on the campaign trail. Even Rudy Giuliani, who made his name fighting murder and mayhem in New York, included nothing on crime among his major campaign planks.
Although the end of law-and-order demagoguery is welcome, America still has a crime problem — or, rather, two crime problems. On one hand, the crime drop of the 1990s has ended, without delivering real relief to many communities. For example, while murder is down dramatically in New York and Chicago, homicide rates in Baltimore and Detroit are about the same as in 1995 — and 25 percent higher than New York's rate at its 1990 peak. In many inner cities, violence and the fear of violence remain central facts of life that drive away jobs, small businesses, and successful families. Overall, the country's homicide rate is still three times higher than England's or Australia's, and twice that of Canada. According to the University of Chicago's Jens Ludwig, crime costs the United States on the order of $2 trillion a year.
At the same time, America's incarceration rate — the highest on earth — continues to balloon. According to a recent report from the Pew Center on the States, one in 100 U.S. adults is now behind bars, the largest percentage in our history. The racial imbalance is even more disturbing: One in 106 white men is in prison, compared to one in 15 African-American men. Overall, our incarceration rate is four times higher than it was in 1980, and more than five times that of England or Canada.
This commentary makes an astute observation about the apparent eagerness for the 2008 campaign to ignore crime and punishment issues. However, the essay fails to take Bill Clinton to task for transforming the Democratic Party into a party that has — in my view, wrongly — concluded that "law-and-order demagoguery" is essential to winning elections.
Though this commentary starts by noting the Willie Horton ad that played a role in the 1988 Bush-Dukakis election, it fails to highlight that Bill Clinton in 1992 and throughout his presidency (directly and indirectly) urged Democrats to be involved in "law-and-order demagoguery." It is against this backdrop that it was so telling and so sad that Senator Hillary Clinton this year was the only Democrat to speak out against the retroactivity of the crack guidelines. That choice, in my opinion, showed that Senator Clinton still believe that electoral success (even against fellow Democrats) is to be achieved through "law-and-order demagoguery."
Give these realities, it may be an good that so far none of the major Presidential candidates are talking about crime and punishment issues. The Clintonian approach now seems to be to use these issues as a wedge to beat up on fellow Democrats, and that approach likely ensures that we get policies and politics (at least at the national level) that contribute to both the crime problems that the TNR piece discusses.
Some SL&P posts on crime and punishment and the 2008 campaign:
- Race, class and criminal justice in campaign 2008
- Politics and the war on drugs
- Should criminal justice reform be the new civil rights movement?
- Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
Cross-posted at SL&P
US News Rankings just like the White House?
I am proud to see my alma mater break the Top 10. But I still have not seen a complete list to know where my home institution landed this year; guess I will have to wait a few more days.
The Coming fight over incorporation: Will there even be one?
We need to have a discussion about incorporation of the Bill of Rights in SCOTUS. Provisions of the Bill were incorporated against the states with ridiculous casualness in cases like Gitlow and Cantwell v CT. But there is a strong argument that the Bill ought to apply in different ways against different levels of government, based on the different risks that each level poses for liberty. The problem is that we rarely see this argument in SCOTUS.
For instance, I love Richard Epstein’s theories of takings – but I do not want to see them nationalized, because I love local democracy more. Hathcock and Kelo, to my mind were BOTH rightly decided. And I think that I agree with the likely outcome in Heller – overruling DC’s gun control ordinance – but I do not want to see THAT Second Amendment doctrine imposed on the states, for the same reason.
The problem with nationalized rights is that we Americans disagree passionately about the scope of private liberty, and the enforcement of one person’s theory of fundamental liberties is often the abridgment of other person’s equally reasonable conception of liberty. Why not accommodate both sides through federalism?
Richard Epstein has a decent argument for a fairly strict and broad definition of “private property.” But (as I noted in our exchange), a very reasonable person could object that We the National People never clearly endorsed such a radically nationalizing doctrine. Forcing such a rule down Our the People’s throats just because one can get 5 votes on SCOTUS strikes me as a denial of equal concern and respect to the views of those Americans who believe that Epsteinian “property” deprives them of their “property right” to environmental regulation. In other words, it could be that both Tahoe-Sierra AND Measure 37 in Oregon are both correctly decided.
How, then, to decide the degree to which some national liberty ought to be enforced against the states? Here’s a quick thought: Look to see whether there is some systemic failure of the state to protect one group of people’s rights because of “lock-in” by a single political party or faction. Yes, I know: It is not an original idea. But it might be the Original understanding: remember that the 14th Amendment is really inspired by the freedman’s plight.
For instance, I would not enforce the Second Amendment against the states unless there was some showing that the state or city government had systematically failed to provide police protection to some subgroup within the jurisdiction. If crime is rampant in poorer areas of town, if the police are corrupt, lazy, or just plain incompetent in responding to 911 calls from the wrong side of the tracks, then maybe the self-help provided by the Second Amendment makes sense as an implementation of our right to equal protection. But, otherwise, I’d defer to the local majorities’ conception of how best to insure each person’s right to personal security.
The alternative, of course, is to hope that your favorite version of liberty will win 5 votes from SCOTUS, defeating another plausible conception through sheer majoritarian power. But I guess that I think that such naked nationalistic majoritarianism denies what Jeremy Waldron calls our “right of rights” – our right to adopt differing conceptions of rights democratically.
At least, I'd like to see the Court think about this issue instead of blindly enforcing the Bill jot for jot against the states.
Retributive Damages: How much and to whom?
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law, recent scholarship, and retributive justice. Yesterday's post articulated some of the basic structure for retributive damages, focusing on what misconduct should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions).
Today's post discusses a) how to bring rationality and fairness to determining the amount of retributive damages, b) how to allocate the retributive damages among the state, lawyer and plaintiff, and c) how this account offers prosaic justice, not poetic justice--and why that's ok, contra Luban, Galanter, Sebok, and Zipursky. The material below appears in unfootnoted and unformatted form, but you can read a draft of the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.
Implementing Fair Notice for Amounts of Retributive Damages
This section’s discussion lays out the key factors affecting the amount of retribu-tive damages. There are several elements that must be considered in determining the amount of retributive damages in a given case.
A concern for achieving even-handedness among similar cases is important from a variety of retributivist and rule of law perspectives. From this vantage point, a defendant should not face an award of retributive damages that varies substantially from another de-fendant’s punishment when both committed the same misconduct and are being punished by the same sovereign in the same jurisdiction. Consistent with the retributivist com-mitment to rule of law values, individuals should have some reasonable sense of not only what kind of conduct is prohibited by pain of retributive damages liability but also what kind of penalty and how much of a penalty they might predictably face as well. This section tries to provide a scheme that can help implement fair notice and horizontal equality regarding the scope of damages. It also addresses some of the difficult questions arising in the context of settlement.
1. Reprehensibility-Based Damages Based on Scaled Guidelines
The main feature of a retributive damages award is a reprehensibility-based fine. This fine’s amount requires two kinds of measurements. The first is a number on a repre-hensibility scale. The second measurement translates that reprehensibility score to an amount of damages.
Thus, as a preliminary matter, state legislatures or a sentencing commission should devise a set of guidelines for juries (or judges in bench trials) to help them assess how rep-rehensible the misconduct is. The guidelines would calibrate reprehensibility, perhaps on a scale of 1-20, with 20 being the worst, using the factors, discussed earlier, that courts currently use to evaluate the defendant’s reprehensibility. Some factors might increase rep-rehensibility, such as a defendant’s history of past adjudicated misconduct, and other factors might mitigate, such as pre-existing compliance programs or remedial actions and restitution measures taken by the defendant upon discovery of the misconduct. In addition, the guidelines would provide hypothetical examples of misconduct that fell on various places on the scale.
This kind of scaling approach would enhance not only fair notice and horizontal equality, but also rational decision-making by jurors. It would do so by reducing the risk of isolationism, which is a cognitive bias that arises when individuals are required to make judgments in isolation of other factors that provide a richer context. The scheme suggested here enables jurors to deliberate over and contextualize the conduct they are assessing in comparison to other types of conduct. For example, if viewed separately a jury may rank a given financial harm as a 6 and a given physical harm as a 7. But if the two scenarios are viewed together, the jury may rank the financial harm as a 5 and the physical harm as a 9. The rankings may be different when conduct is ranked alone because “judgments are spon-taneously normalized to the frame of reference implied by the category.” Sunstein et al. provide another example that may be easier to understand. When viewed separately, the answers to both the following questions may be “yes”: “is an eagle large?” and “is a cabin small?” But when viewed together, one’s answers may change because the frame of ref-erence is wider than one particular implied category. Hence, the examples of conduct pro-vided to juries should feature conduct from a wide spectrum of categories so that retribu-tive damages can be calibrated to be coherent across a broad array of conduct, instead of simply one separate category of conduct.
Bear in mind that determining reprehensibility along a scale is only part of the task. We must also determine how the reprehensibility translates to the amount of the pen-alty. According to Professors Sunstein et al., jurors in psychology experiments demonstrate great difficulty in translating their condemnation of defendants’ behavior into predictable scales of dollar amounts. (Some scholars, looking at real life data, contest that juries dis-pense unpredictable amounts of punitive damages. )
To reduce the difficulties juries or judges might encounter when called to translate “outrage into dollars,” the number on the reprehensibility scale would track some portion of the individual defendant’s net wealth. The precise tracking between reprehensibility and wealth would be decided ex ante by a legislature or a state sentencing commission, but that linkage need not be communicated to the jury. The jury’s focus instead would be on what happened and the moral evaluation of the defendant’s reprehensibility in light of the guidelines and commentary. With a corporation, we would look at the worth of the enter-prise as measured by valuation models used on Wall Street. Reliance on net wealth of enti-ties can be misleading because it would simply encourage corporations to use debt to fi-nance themselves instead of equity.
To illustrate, a finding of 2 on the scale could lead to a retributive damages award of 1% of defendant’s net wealth, and a finding of 20 could lead to 10% of the defendant’s value being assessed. Scaling the amount of the penalty to a percentage of wealth is a bit unorthodox in this country but it is not without precedent. Currently more than a dozen ju-risdictions use a similar program of day fines that are prevalent in
, by which a judge determines the severity of the offense with reference to a number, and that number is multiplied by the income a defendant has on a daily basis.
This kind of scaling to wealth or value is important for four reasons: it avoids emit-ting the wrong signals to the public about the worth of poor people in cases involving physical injury; it facilitates rational jury decision making; it helps reduce, but does not eliminate, the problem of the diminishing utility of money; and last, it provides reasonable incentives for plaintiffs’ lawyers to take cases even after Philip Morris. Let me elaborate each reason.
The first major advantage of a reprehensibility-scaled guidelines approach is that it ensures that the reprehensibility of the defendant’s misconduct is what is being measured and punished, rather than say, morally irrelevant facts about the underlying tort. As ex-plained in Part I.A., various jurisdictions have insisted that the amount of punitive damages be tethered tightly to the amount of compensatory damages awarded.
This tethering is unreasonable from a perspective of retributive punishment, espe-cially in cases involving or risking physical injury because doing so is inconsistent with the belief in the equal worth of human life under the law. When a defendant’s misconduct kills or injures a poor person – i.e., someone whose death or injury triggers smaller payouts in compensatory damages under conventional valuation models – such misconduct will yield a lower punitive damages award where there is a requirement that punitive damages be based on compensatory damages than if the defendant killed or injured a wealthy per-son. Not only is this outcome objectionable from a perspective that values equal respect for all persons before the law, it will encourage defendants to undertake unjustifiably risky conduct in a manner that will disproportionately affect the poor and disenfranchised. If leg-islatures have imposed caps on punitive damages through using a certain multiple of the compensatory damages or a certain flat dollar amount, then the wealthy defendant will simply view the punitive damages award as just a tax or a cost of doing business. By contrast, the assessment of a percentage of wealth would help rupture that sense.
The second benefit of using percentages of net wealth or net value is that a defen-dant’s wealth won’t be used to affect the jury’s decision-making. This approach protects defendants by preventing trial courts devolving into “a field day in which the financial standing of the defendant would become a major issue.” In other words, the plan here does not allow for the introduction of evidence regarding the financial condition of the de-fendant because such information might poison the jury’s decision; instead the jury is tasked simply with assessing the reprehensibility of the misconduct.
A third advantage to assessing retributive damages this way is it helps ensure that the sting of the punishment will be more consistent across persons and that similarly situ-ated defendants who commit similar types of misconduct within a given jurisdiction will be punished in a roughly similar way. Under the retributive damages scheme, the worse the conduct, the higher the percentage of net wealth that will be forfeited. Of course, given that the marginal utility of money diminishes, one might think there is a need for progressively staggered percentages that increase as a function of both reprehensibility and wealth (or value). It’s quite difficult, however, for legislatures or sentencing commissions to assess different marginal utility functions for different persons.
Moreover, there is a principled reason to treat similar offenders who commit simi-lar misconduct in similar manners, and thus the principle of equality under which retribu-tive punishment serves would likely be undermined by a progressively increasing punish-ment structure because the variability of marginal utility rates would be idiosyncratic across persons (or entities). At least with flat fines (dollar amounts) or flat percentages of wealth, the equality principle can be plausibly invoked to most people. Thus, because scal-ing retributive damages “progressively” is an issue whose outcome I don’t think retributive theory can resolve with firmness, I would counsel caution. Moving from fixed dollar amounts or multiples based on compensatory damages to fixed percentages of wealth re-gardless of the wealth of the defendant would itself be a substantial improvement.
Last, there might be some additional benefit to the approach described here, one that is especially salient after the Court’s Philip Morris decision. As mentioned earlier, the Court ruled that a jury may not award punitive damages based on the amount of harm caused to nonparties to the litigation. Although the reason for this holding makes good and under-appreciated sense from a retributivist perspective – a person ought not be punished for conduct that has not been clearly proven to be the defendant’s culpable misconduct, es-pecially if the defendant has various defenses that could be raised as against particular claimants – the new holding poses a substantial risk of reducing incentives to plaintiffs and their counsel because they cannot pursue a jackpot of punitive damages based on “total harm.” If a jurisdiction decided (against my advice offered below) to allocate the retribu-tive damages awards to the plaintiff and her counsel, then the reprehensibility-based guide-lines approach reduces the problem of diminished incentives in the aftermath of Philip Morris. (But to my mind a better solution is for the state to take the award and to simply provide that the defendant pay lawyer’s fees based on risk, time and expense.)
Some additional points warrant attention. Consistent with the virtue of retributive modesty, mentioned in Part II, in situations where a defendant has reason to doubt its vi-ability if required to pay one lump sum, legislatures may authorize courts to order defen-dants to pay the amount as a percentage of profits in coming years. Additionally, if one is concerned that a defendant committed grave misconduct and then undertook to restructure its finances to make it appear that it cannot pay its tab, the courts might adjust the retribu-tive damages based on the wealth or value of the defendant at the time the misconduct last occurred.
The scheme described above furnishes potential defendants little basis for com-plaint that the amount or award of retributive damages is a surprise, since the standards that would be applied to them are no different than the guidelines that have now become famil-iar in many jurisdictions when assessing criminal liability and sentencing issues. Of course, the defendants in criminal cases have more procedures in place, and thus, if we are deputiz-ing plaintiffs to facilitate punishment of the defendant through an intermediate sanction, this requires enhancing at least some of the procedural safeguards in place in retributive damages cases, an aspect of the argument I develop in greater detail in the next installment of this project.
2. Penalties for Gain-Stripping
In addition to the reprehensibility-based fine, courts should assess the net profit-ability of the misconduct, if any, toward the plaintiff involved. This determination is neces-sary because retributive damages awards signal two commitments: first, that misconduct of this sort should not occur, and second, if such misconduct does occur, the defendant should not profit from it. So, in addition to the reprehensibility-based fines, the amount of retribu-tive damages should also include the retrieval of whatever profits can be tied to the mis-conduct toward the plaintiff.
The gain-stripping penalty should be treated distinctly from the reprehensibility-based fine. Gain stripping alone puts the defendant at the status quo ante, which doesn’t communicate the wrongness of the action; adding the reprehensibility-based fine makes the defendant worse off for his culpable conduct, as he should be from a retributive perspec-tive. Thus, if the defendant were to pay a hypothetical reprehensibility fine of 200 and had gained from the misconduct 200, then the defendant should pay (at least) 400. That said, the gain of the defendant needs to be considered in light of the harms the defendant has been forced to compensate also. Thus, if the defendant gained 200 but is required to pay 100 to the plaintiff in compensatory damages, then the defendant really gained only 100, and so should be forced to pay the compensatory damages to the plaintiff (100), the extra profits (100), and then also pay a retributive damages award that puts the defendant in a worse position than earlier, based on how reprehensible the conduct was.
One caveat is necessary. Any gain-stripping penalty against the defendant will, in the aftermath of the Philip Morris decision, have to be limited to the gain the defendant made against the plaintiffs in the litigation rather than gains made against others who are strangers to the litigation. This also reduces the amount of potential reward to contingency fee-based plaintiffs’ lawyers, so states may need to enact provisions allowing for reason-able fees for plaintiffs’ lawyers in cases where retributive damages are warranted. I address this next.
3. Providing Litigation Fees and Expenses
In addition to gain-stripping and reprehensibility-based fines, the state must also consider the significance of having the defendant pay for litigation fees and expenses when determining retributive damages.
Though the state ought to receive the bulk of the retributive damages (for reasons I explain in the next Section), it needs to provide incentive for plaintiffs and their lawyers to bring retributive damages actions to the attention of the state. We need to determine how that general allocation strategy affects incentives for lawyers to bring retributive damages actions. If we assume that the state takes the lion’s share of the retributive damages penal-ties for the reprehensibility-based fine and the gain-stripping (in light of the public interest in retributive damages), we increase the likelihood that the plaintiff will have a difficult time in finding a lawyer to take the case absent compensation for fees and expenses. That’s because compensatory damages may not sufficiently motivate lawyers where the damages are insubstantial or uncertain. For cases where compensatory damages are uncertain or small, provision of lawyers’ fees provide motivation to tort lawyers who might not take these cases otherwise. Additionally, it incentivizes plaintiffs’ lawyers to find and promul-gate evidence of a defendant’s mens rea that they might not otherwise pursue if they were looking strictly for compensatory damages. Moreover, these issues cast a significant shadow over settlement discussions. So if we want to make sure high quality lawyers are marginally more attracted to this area of law than they would be under conditions that lead to compensatory damages only, we have to ensure fees are provided for to motivate private lawyers to invest in these cases.
If reasonable fees and expenses are awarded – and adjusted for risk, time, and ex-pertise – for all victorious plaintiffs in retributive damages claims, then that would create incentives for lawyers to bring good cases. It’s a good general rule, and reflects the same commitments to human values as when we make losing defendants in civil rights cases pay for the costs of litigation.
But it might also encourage suits with very little money at stake. Thus, the alloca-tion of lawyers’ fees will say a lot about how much should be spent on reducing Type II errors. If, for example, John maliciously stomps on exactly one of Neighbor Nancy’s prized roses in her presence, should Nancy have a retributive damages action against John for the sentimental and market value of the rose? If so, should John pay
’s lawyer and the court costs too? A lawyer will bring suit here only if she thinks she will get paid if she prevails, unless she works for an entity (perhaps governmental or non-profit) that sub-sidizes these actions. But if lawyers aren’t available, it may mean that John can stomp on
’s roses with impunity especially if he does it on the installment plan. There’s al-ways the threat of criminal sanctions to prevent John’s actions but prosecutors are also sometimes reluctant to charge low-value perpetrators.
Given its primary focus on the criminal justice system, retributive theory quite naturally doesn’t have a lot to say about the architectural design for solving this particular problem. The retributive interest is in encouraging high quality lawyers to invest in strong cases that vindicate the wrongs perpetrated against society. But various structures might be able to achieve this aside from a blanket rule awarding lawyers’ fees in successful retribu-tive damages awards. For instance, some jurisdictions might decide that the state prosecu-tor will seek retributive damages when the fear is that the defendant can’t afford to pay the lawyers’ fees. Alternatively, the state may decide to subsidize private lawyer’s fees out of the public fisc especially in cases susceptible to class treatment. One thing is clear. Juris-dictions facing competing moral obligations for scarce resources may decide that a conces-sion to administrative cost is necessary. Those that do make that choice will force a drag on the goal of using retributive damages to reduce Type II errors, but as stated in Part II, we can’t expect to spend every last unit of social resources on retributive justice. Trade-offs have to be made somewhere.
4. Rewards for Plaintiffs and the Risks of Collusion
Considering the interests of potential plaintiffs’ lawyers in this scheme is not enough. It would only create an incentive for enterprising lawyers to find plaintiffs. It would not do the job of channeling plaintiffs to lawyers, especially if the aggravation of a lawsuit coupled with the chance of not winning were otherwise sufficient to dissuade a plaintiff from bringing suit. The availability of retributive damages with some portion of it going to the plaintiff creates the conditions for more enforcement of the public values at stake. From the public’s perspective, then, the amount of retributive damages awarded to the plaintiff should be the amount necessary to reward the plaintiff for bringing the suit to the lawyer and the lawyer for bringing the suit to public attention. Thus, in addition to the fee structures discussed immediately above, jurisdictions could provide that plaintiffs in victorious retributive damages suits will receive, say, a $10,000 finder’s fee, in addition to compensatory damages if applicable.
The flat fee reward encourages all citizens to bring cases warranting retributive justice without making the windfall to the plaintiff contingent on morally arbitrary features such as the defendant’s wealth. The benefit of such a finder’s fee is it makes the project of retributive justice likely while being less susceptible to lottery effects that undermine re-tributivism’s commitment to fairness and equality across persons.
The flat fee award might create a risk of collusion such that defendants would try to “bribe” plaintiffs to settle for, per our example, $10,001 above their compensatory dam-ages. If we adopted the flat fee award under our current system, we would encourage de-fendants to pay for wrongs they might never have been committed to make suits go away. Meanwhile, secret settlements of this sort embolden the original wrongdoers who are never held liable – are never confronted with their wrongdoing – for wrongs that they actually did commit.
To avoid these problems, the litigation process should take three steps. First, plain-tiffs must signal in their initial complaint that they are seeking retributive damages; they must also lodge a copy of the initial complaint with a state attorney general’s representa-tive. Second, courts must scrutinize and make transparent all settlements of all suits where retributive damages claims are lodged in the initial complaint. Third, the state attorney general’s representative has to either agree to the settlement or buy the retributive damages claims of plaintiffs (for the finder’s fee) so that the state can prosecute the retributive dam-ages aspect of the litigation. These rules would prevent private parties from settling in a way that deprives the public potentially critical information involving public misconduct and conveys to the court (and the state) a basis for scrutinizing any settlements that arise regarding the nature of the misconduct. Moreover, it also encourages defendants to contest liability for retributive damages unless they actually did something wrong.
Thus if a plaintiff decided to go ahead and allege retributive damages in the initial complaint, he would not be prohibited from settling subsequently. But this scenario would require plaintiffs to secure governmental approval to settle and it would force defendants to either admit responsibility and pay some amount of retributive damages to the state or to deny responsibility. If the defendant denied responsibility, he would have to convince the state’s representative that this particular claim was not worth pursuing because of lack of merit. Otherwise, the state — or conceivably another PAG if the state declined — could decide to risk litigating against the defendant. Clearly, the dynamics of settlement would change because defendants would have little incentive to settle without admitting liability. Knowing these diminished incentives, plaintiffs will be unlikely to bring suits merely for the purposes of harassment.
In sum, where retributive damages are warranted, a defendant should pay repre-hensibility-based fines, attorneys’ fees (informed by risk, time, expertise, and expenses), a state-determined flat award going directly to the plaintiff, and the elimination of any net gains made by the defendant from his misconduct toward the plaintiff that was not part of the compensatory damages to the plaintiff. This structure creates a quid pro quo. The finders’ fee helps channel cases to lawyers; the lawyers who invest in these cases are paid for the risk and effort they take. Meanwhile, defendants are made worse off as a result of their culpable misconduct. But before that happens, they enjoy a set of procedural safe-guards and advance legislative notice of what conduct instigates retributive damages in ways that are more restrained and predictable than the extant regimes in most jurisdictions around the nation.
C. Allocating Retributive Damages Chiefly to the State
By virtue of their punitive, educative, and preventive effects, retributive damages serve a public purpose in effectuating the CCR’s values described earlier in Part II. This public nature indicates why the defendant should pay retributive damages, but it does not yet explain who should receive the retributive damages awarded. Indeed, both the retribu-tive and the cost-internalization functions are largely satisfied by extracting damages (or other relevant remedies) from the defendant. But neither function seems at first blush to re-quire the plaintiff to be the exclusive beneficiary of that penalty. Let me try to elaborate why, at least with respect to retributive damages, the state should capture the bulk of the retributive damages award.
To be sure, there are good arguments that tort victims should have an avenue of re-dress for compensation for their losses, though of course compensation could alterna-tively be achieved through social insurance schemes. Perhaps tort victims should addi-tionally be compensated through “aggravated damages” for the dignity harm they have personally endured, if, for some reason, their compensatory damages did not properly en-compass those harms. But if extra-compensatory damages are inflicted to achieve the pub-lic’s interest in retributive justice, then we must see the recovery by private plaintiffs of any “retributive damages” as merely a contingent result, not one that is necessary or neces-sarily desirable.
Indeed, it is wrong-headed to award plaintiffs the bulk of retributive damages. The quintessentially socio-legal interest underlying the CCR counsels in favor of awarding only that incentive to the plaintiff and her lawyer necessary to bring the suit to public attention, and to dedicate the balance of the retributive damages award to other pressing social obli-gations, including but not limited to remedial services for crime victims or other law en-forcement budgets.
In the world before the Supreme Court’s recent Philip Morris decision, the risk of giving the plaintiff—who might only be one of many victims of the defendant’s conduct—the entire punitive damages award was that it would more likely undermine the state’s in-terest in ensuring a fair distribution of both compensatory and retributive damages for oth-ers, since a crippling retributive damages award might impair the availability of adequate compensation funds (or punitive damages) for future claimants. In light of the Court’s pro-nouncement that punitive damages may not be calibrated based on the amounts of harm in-flicted on other victims who are non-parties to the litigation, this reason is admittedly weaker as a justification for the state to take the lion’s share of retributive damages, espe-cially in simple litigation where the defendant’s misconduct only hurts one party.
But even in the post-Philip Morris context, giving more than a reasonable award (say, of $10,000) in addition to compensatory damages and litigation expenses would make the system vulnerable to lottery effects that are incompatible with a scheme of retributive justice committed to condemning misconduct in the public’s name, rather than the vic-tim’s. As I explained in greater detail in Part III.B.4, why should plaintiffs benefit from re-tributive damages because they had the “good fortune” of a wealthy injurer?
There are two additional reasons — not intrinsic to retributive theory per se but re-lated to the fairness considerations that animate retributive justice nonetheless — to ensure that plaintiffs don’t enjoy windfalls through awards of retributive damages. First, as long as lawyers’ fees are sufficient to induce counsel to take worthy cases, the state should treat retributive damages as a vehicle by which revenue may be raised efficiently and fairly. That efficiency is enhanced when most of the retributive damages awards go to the state because plaintiffs don’t plan on being victims of punitive damages awards and they, for the most part, have other incentives to pursue compensatory damages. In other words, the state can collect revenue for valuable social projects without deterring plaintiffs and their law-yers “from bringing suits and deterring difficult-to-detect or intentional torts.” A second consideration is that awards of retributive damages are windfalls to plaintiffs that work a form of lottery, which a risk-averse population would reject ex ante in favor of lower taxes (or more services).
D. Retributive Damages: Prosaic Justice, not Poetic Justice
Looking backward now, I want to highlight how this structure for retributive dam-ages reflects the CCR’s values and not revenge or victim-vindication.
First, decisions about the pursuit of retributive damages claims and their settlement are not left solely in the hands of the victim. The state basically has a veto on settlements in cases alleging retributive damage. Moreover, either through a PAG alone or in the seg-mented strategy I endorsed earlier, a defendant’s misconduct is subject to retributive dam-ages even if the victim doesn’t pursue retributive damages. These rules work to reduce Type II errors resulting from too much control the victims might have. And by tempering the power of the victim, the CCR also makes retributive damages less like revenge.
Indeed, if we recourse back to the previously mentioned differences between retri-bution and revenge, and apply those conceptual differences to retributive damages, we see that retributive damages, properly implemented, look quite like the kinds of conven-tional criminal fines used around the world. As I conceive them, retributive damages are subjected to proportionality safeguards; impartially administered by the state; attached di-rectly to the offender; and serve as an expression of the state’s power to coerce the offender in particular ways, such that certain ideas can be communicated through that coercion. Where appropriate, retributive damages might also be accompanied by other measures short of criminal sanctions such as injunctive relief.
To be sure, the plaintiff seeking retributive damages might feel vengeful, and might take pleasure in the suffering of the defendant, but, per the regime I have described, the state won’t punish the defendant by extracting the fine without its customary – or aspi-rational — concern for the free and equal nature of the offender. Thus, unlike revenge, re-tributive damages would not be available if typical excuses and justifications apply to the defendant’s actions. Moreover, nothing about retributive damages is inconsistent with re-tributivism’s intent requirement, discussed earlier, which requires that the punishment not preclude the internalization of the “sense of justice” that would allow for an offender to demonstrate his respect for the norms of moral responsibility, equal liberty under law, and democratic self-defense. Retributive damages, properly constrained as an intermediate sanction, do not prevent the defendant from ongoing activity nor do they aim at the defen-dant’s destruction or social isolation.
And while the private plaintiff may have no interest in the general application of the law, the state, which extracts the retributive damages fine, does. Specifically, a retribu-tive damages action brought by one plaintiff does nothing to preclude the punishment of other defendants for similar wrongs; does nothing to preclude punishing the same defen-dant for other wrongs against other victims; and – through its information-generating ef-fects about a defendant’s mens rea – actually facilitates the pursuit of criminal sanctions against the same defendant within the criminal justice system for the same wrongdoing to the plaintiff-victim as well as for other wrongs the defendant may have perpetrated against others. So retributive damages, at least when properly constrained and conceived, might actually increase the likelihood of fair and general applications of the law.
This concern for fair and general applications of the law is manifested also by seeking to ensure the defendant is not over-punished (generally and relative to similar of-fenders). Unlike the current regime, the retributive damages structure would permit a de-fendant to credit any retributive damages paid against any fines imposed in subsequent criminal actions brought by the state for the same misconduct. Conversely, defendants would not face retributive damages awards for certain misconduct if they have already been criminally convicted in that jurisdiction for that particular misconduct. In that situa-tion, the state has already done the hard work of ferreting out the misconduct and proving it beyond a reasonable doubt. Thus there would be no reason to give lawyers or plaintiffs a reward for pursuing retributive damages against an already convicted defendant. (Whether indictments should suffice is a harder issue. )
Additionally, this structure reflects the CCR’s concern for equality, proportionality and even-handedness. Across the realm of cases, state-drafted guidelines and commentary are used to inform judicial or juries’ deliberations about the appropriate level of the defen-dant’s reprehensibility. The goal behind this is to reduce Type I over-punishment and Type II under-punishment problems (compared to others) because the guidelines will give juries a far more effective way to avoid the ad hoc determinations that afflict the common law method of portioning punitive damages. Indeed, because the correct interpretation of the guidelines would effectively be a legal question susceptible to much less deference from reviewing courts, the jury’s role would be more circumscribed. Moreover, by restricting plaintiff’s share of the punitive damages award to a flat “finder’s fee,” we avoid creating lottery effects or windfalls to plaintiffs lucky enough to have a wealthy injurer. Last, the sanctions imposed under a retributive damages scheme communicates that the misconduct is prohibited and not simply priced based on morally arbitrary features of the victim, such as his earning power. In other words, plaintiffs won’t receive windfalls because they have the good fortune of a wealthy injurer and defendants shouldn’t receive penalty discounts based on the good fortune of having a low-earning victim instead of a high-earning one.
Last, the CCR’s concerns for accuracy and modesty are reflected in the procedural and substantive safeguards defendants would be entitled to under a retributive damages scheme: a right to counsel, judicial review, and a higher burden of proof (clear and con-vincing evidence), and a right to credit retributive damages amounts against subsequent criminal sanctions would protect defendants from risks of duplicative or inaccurate pun-ishment (Type I errors). Defendants should enjoy certain procedural safeguards that elevate our confidence levels above what’s necessary for compensatory damages but below what’s expected for full-blown criminal sanctions. Moreover, a concern for modesty would entail limiting and structuring retributive damages payments so they operate as an intermediate sanction, and hence, won’t jeopardize the ability of the defendant to continue his life or business in compliance with the law’s dictates.
Taken together, these notions readily separate the retributive damages scheme from prior accounts of punitive damages emphasizing revenge, “poetic justice,” or victim-vindication through civil recourse, theories propounded with different emphases by Profes-sors Zipursky, Sebok, Galanter and Luban. For instance, notwithstanding its effectiveness in explaining part of the rationale for punitive damages, Galanter and Luban’s poetic jus-tice account is unpersuasive in defending the lack of procedural safeguards for defendants, the imposition of punishment for harms occurring to non-parties to the litigation, and the extension of great deference to a jury’s ad hoc determination of punitive damages. What we really need is prosaic justice, not poetic justice.
Moreover, like Professors Zipursky and Sebok, Galanter and Luban propose little in the way of trying to ensure any degree of proportionality or even-handedness in the sanctions imposed on comparable defendants. Last, Professors Sebok and Galanter and Luban exhibit hostility to punitive damages used to pursue cost-internalization, even though there is no principled reason that extra-compensatory damages could not be struc-tured to allow a state to pursue retributive damages alongside remedies designed to pursue other purposes, including both cost-internalization and compensating victims for uncom-pensated harms to their dignity.
It goes without saying that the entire design of a retributive damages scheme needs some explanation for why it would be useful beyond mere reliance on the tort system to provide compensation for victims and the criminal justice system to inflict retribution against criminals. The next Part tries to explain what makes retributive damages, as I’ve described them in this Part, attractive as an intermediate sanction falling between compen-satory damages and criminal penalties.
Tuesday, March 25, 2008
Speaking of punitive damages...
Yes, I know I've lately been
a bit of a one-track retributive damages "promoter" -- the word "pimp" seems more appropriate but the last time one of us used it, well, that's another story -- but I just noticed that Adam Liptak's got a new article in the Times about the "American Exception" of punitive damages. Adam writes:
Most of the rest of the world views the idea of punitive damages with alarm. As [an] Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.
Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.
Some common-law countries do allow punitive damages, though in limited circumstances and modest amounts. In the United States, by contrast, enormous punitive awards are relatively common, although they are often reduced or eliminated on appeal. Last month, for instance, the United States Supreme Court heard arguments in the Exxon Valdez case, where a jury’s initial award of $5 billion was later reduced to $2.5 billion. Still, such awards terrify foreign courts.
As I read Adam's piece, I couldn't help but think that if more American jurisdictions adopted my proposal of casting punitive damages as an intermediate sanction, there'd be far fewer problems in getting these judgments enforced against foreign defendants, not to mention there'd be much less risk of being found at odds with the Court's substantive and procedural due process analysis of punitive damages. At the very least, I hope the constitutional analysis at the end of my piece will prove somewhat useful to courts both here and abroad that are contemplating the problematic relationship between punitive damages and compensatory damages. (More on that in this coming Friday's post.)
Why Do We Counsel Against Commercial Outlines?
Why do so many law professors caution students to stay away from commercial outlines? Isn’t it a bit odd that we think students must be protected from certain books?
Perhaps commercial outlines are not the best way to learn the law. That’s arguable. I certainly hold the opinion that commercial outlines provide information that is woefully incomplete, at best.
But the attitude of much of the legal academy goes far beyond these modest contentions. Commercial outlines are treated as if they are intellectual poison. Wow. Does reading a commercial outline actually damage the ability of a student to learn? I can’t believe that. For one, I can’t believe commercial outlines wield quite so much power.
More to the point, I think my students are too smart to be injured by reading – whether it’s Karl Marx or Steven Emanuel.
In my classes, I encourage students to read commercial outlines (as well as anything else they find helpful). And the sooner the better. In my ideal world, all students would have a basic understanding of the blackletter law in a subject before reading the cases. It seems to me a sorry waste to read a case primarily to separate doctrine from chaff. I want students to read cases at a higher intellectual level, casting a critical eye on the court, questioning the motives of the parties, and learning how the blackletter doctrine works, or doesn’t work, in the real world.
Remember chemistry? You probably started with the Bohr model of the atom, in which electrons orbit the nucleus like planets around a sun. The Bohr model of the atom is a terrific starting point for learning chemistry. It is also wrong. Later on in chemistry, you learn to think in terms of valence shells, understanding that electrons exist in spherical clouds of varying probability. It’s an open secret that the Bohr atom is incomplete and deceptive. But it’s still useful to beginning students.
Blackletter statements of law are like the Bohr model of the atom. They are inviting, easily comprehended, and wrong. And like the Bohr atom, a compilation of blackletter law in a commercial outline is a ready way to begin learning.
It makes me sad to think that many students may be sheltering themselves from commercial study aids and thus needlessly using a semester’s worth of case reading and class dialectic merely as a means to the end of creating a hard-won outline. I would rather them start with an outline in hand, and then spend the rest of the semester learning what’s wrong with it.
Medellín: The Insta-Symposium
Over at Opinio Juris, there's already a series of posts on today's Supreme Court decision in Medellín, an "insta-symposium," as OJ calls it.
My own contribution, on the significance of the Court's new definition of "non-self-executing" treaties, is available here.
Next, we'll have live symposia as things are actually happening! Or better yet--symposia on what will happen!
"The Next Civil Rights Battle" in Wired Magazine
Wired magazine has an article on "Why the Next Civil Rights Battle Will Be Over the Mind." Here's the gist (which seems to fall more naturally under the heading of "civil liberties" rather than "civil rights"):
It's true that most of this technology is still gestational. But the early experiments are compelling: Some researchers say that fMRI brain scans can detect surprisingly specific mental acts — like whether you're entertaining racist thoughts, doing arithmetic, reading, or recognizing something. Entrepreneurs are already pushing dubious forms of the tech into the marketplace: You can now hire a firm, No Lie MRI, to conduct a "truth verification" scan if you're trying to prove you're on the level. Give it 10 years, ethicists say, and brain tools will be used regularly — sometimes responsibly, often shoddily.
Both situations scare civil libertarians. What happens when the government starts using brain scans in criminal investigations — to figure out if, say, a suspect is lying about a terrorist plot? Will the Fifth Amendment protect you from self-incrimination by your own brain? Think about your workplace, too: Your boss can already demand that you pee in a cup. Should she also be allowed to stick your head in an MRI tube as part of your performance review?
I'm quoted in the article for noting that our memories are not entirely our own. Even now, for example, the government can subpoena you and require that you testify about the contents of your memory. And we may well have moral obligations to share information of great societal value (e.g., eyewitness testimony about a murder). I discuss the subject in some detail here.
If you're looking for a scandal now that Eliot Spitzer is off the front pages, this might be just the thing for you. About a year ago, three male FBI agents investigating the gangster Whitey Bulger were meeting with a female AUSA in the Boston federal courthouse. As the meeting ended, one of the agents came up behind the AUSA and "gave her a Three Stooges-style noogie." (For those of you who maybe didn't have older brothers, a noogie is given when someone grabs your head and rubs their nuckles into it.)
This raises all the obvious questions: People still give noogies? Who in their right mind gives noogies in an office? How do you spell "noogie"? But the story gets better (or worse). The noogie-er was none other than the supervisor of the FBI's organized-crime squad in Boston. The three agents then lied about the incident in an ensuing investigation, which lasted for a full year. As a result, the three agents may be fired. And the incident has "inflamed tensions between the FBI's Boston office and the U.S. attorney's office."
Surprisingly, the noogie has received comparatively little scholarly treatment. A noogie is also known as a dutch rub, a monkey scrub, and a Russian haircut. A Westlaw search reveals that difficult participants in mediation have been described as "tough noogies," drug dealers have adopted the nickname "Noogie," and school bus drivers have been disciplined for administering noogies to their charges. An open issue is whether a noogie is a show of affection or an act of assault.
Unfortunately, this literature doesn't reveal many obvious grounds for a successful appeal by the FBI agents. Whether intended as an act of affection or assault, lying about a noogie is serious business. Hopefully tensions can die down and the USAO and the FBI can get back to business of noogie-ing the bad guys. And maybe the three agents can parlay their fifteen minutes of fame into a Stooges merchandising deal.
Retributive Damages: Designing A Structure
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law and recent scholarship. In yesterday's post, I provided the basic sketch of retributive justice that informs the reconstruction of punitive damages that I propose.
In today's post, after the jump, I begin sharing some of the basic structure for retributive damages in unfootnoted and unformatted form. The two important discussions here today are what should be the subject of retributive damages and whether non-victims of wrongdoing should be empowered to bring claims for retributive damages (and if so, under what restrictions). Tomorrow's post discusses how to bring rationality and fairness to determining the amount of retributive damages.
You can read the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.
DESIGNING RETRIBUTIVE DAMAGES
It bears mention that at no point in the discussion of the CCR in the previous post was the word crime or criminal used in the course of describing the underlying values of, or limits upon, retributive justice. This omission should be suggestive, indicating that perhaps in some situations, the values of retributive justice – which include commitments to accuracy, responsibility, modesty, equality, and impartiality – can be served through a civil system’s use of punitive damages under conditions described here coupled with some intermediate level procedural safeguards such as a standard of proof that required clear and convincing evidence of the reprehensibility of the defendant’s conduct and state of mind.
This Part tries to show how the design of a retributive damages scheme can be made more sensitive to the concerns of critics and proponents of punitive damages alike. Section A discusses what kind of conduct should trigger retributive damages and who should be able to bring those actions. Section B explains how retributive theory’s concerns for reducing both Type I and Type II errors informs the structure for thinking about the amount of retributive damages in a given case and across cases. Finally, Section C suggests some principles for how the retributive damages sanction would best be allocated among the state, the plaintiff and her counsel.
A. Which Conduct Should Retributive Damages Punish? Who Should Bring Retributive Damages?
If a state adopted retributive damages, it would have to decide what conduct to punish through retributive damages and who could bring these actions. These two ques-tions seem distinct but as the discussion below suggests, the rationale for retributive dam-ages suggests a need to view these together.
1. Should Retributive Damages Reach Beyond Criminality, and If So, How?
To assess which conduct ought to be subject to retributive damages as an interme-diate sanction, there are at least two possible conventional sources for answers with at least four possible outcomes. First, we could use the extant standards for punitive damages in tort law in a given jurisdiction. Second, we could look instead to the criminal law in that jurisdiction for guidance. Third, we could look to both tort and criminal law and incorpo-rate both spheres of law to announce the standards of wrongdoing. Fourth, we could choose to select only discrete areas of conduct from both tort and criminal law.
This Section doesn’t offer a comprehensive theory of retributive damages legisla-tion, but it will suggest a few possible guiding principles and some of the advantages and drawbacks to these various choices.
One option a legislature might take is deciding to pass a statute that simply prohib-its all conduct that demonstrates reckless or malicious disregard for the legal rights and le-gitimate interests of fellow individuals or institutions. In order to reduce the scope of conduct associated with such a statute, jurisdictions might wish to add, per Professor David Owen, that the misconduct in question constitutes “an extreme departure from lawful con-duct.” Prospective defendants would then be on notice that reckless or malicious mis-conduct would no longer simply be “priced” in the tort system according to the harms caused, but instead would be prohibited—and the sanction for violating such a rule could include the award of retributive damages. This hybrid choice would cover conduct nor-mally covered both by tort law principles as well as criminal legislation, but not all tort law and not all criminal law.
One concern with this approach is that this legislative standard – prohibiting, by threat of retributive damages, misconduct undertaken with malice or recklessness – pro-vides insufficient guidance to those concerned with affording fair notice to defendants and ensuring even-handed application by juries and judges. In defense of the current conven-tions, however, the following can be said: courts routinely apply purportedly vague stan-dards in criminal law – “good faith” in mistake of fact, “reasonableness” in sentencing, “beyond a reasonable doubt” – though not necessarily to their credit. Indeed tort law’s dominant norm is negligence, and that typically requires a jury determination of whether the defendant’s conduct was “reasonable,” which is likely more nebulous than whether someone acted maliciously or recklessly. Anxiety about such vagueness, even in the crimi-nal law context, is typically reduced through the accretion of precedent, which provides greater predictability to prospective litigants regarding what counts as reprehensible. Moreover, such anxiety might be further allayed by the recent studies of communal intui-tions of justice that show striking agreement among people about the nature and severity of wrongdoing.
The standard Professor Owen articulates is useful for further limiting the cases in which the fact-finder determines liability for retributive damages. But more granular guid-ance can be found by looking at the various factors that currently inform courts’ analyses of the amount of punitive damages. For example, in its State Farm decision, the Supreme Court told courts to consider whether the misconduct caused harm that “was physical rather than economic;” whether “the target of the conduct had financial vulnerability;” whether the “conduct evinced an indifference to or a reckless disregard of the health or safety of others;” and whether the harm resulted from “intentional malice, trickery, or de-ceit, or mere accident.” This inquiry into reprehensibility can be made even more sensi-tive. Courts have offered various other factors to assist the fact-finder: e.g., the extent of hazard posed to the plaintiff and the public; the degree of defendant’s awareness of the hazard and its excessiveness; the cost of correcting or reducing the risk; the duration of both improper marketing behavior and its cover up; the attitude and conduct of the defen-dant upon discovery of the misconduct; and the defendant’s reasons for failing to act.
The legislature may also wish to require consideration of other factors often deemed relevant to filing charges against a corporate defendant: for example, “the perva-siveness of wrongdoing within the corporation, including the complicity in, or condonation of, the wrongdoing by corporate management”; the defendant’s: history of similar conduct, including prior criminal, civil, and regulatory enforcement actions against it; the corpora-tion’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents; the existence and adequacy of the corporation’s pre-existing compliance program; the corporation’s remedial actions, including any efforts to imple-ment an effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, to pay restitution, and to cooperate with the relevant government agencies.
A simpler way to reduce vagueness is by restricting retributive damages liability to situations where the harm was only physical as opposed to economic. But such a restriction would, from a retributivist perspective, undermine the goal of ensuring that more offenders receive at least some coercive condemnatory deprivation. The better strategy, then, is to deploy all the preceding factors within the statute as considerations for determining the amount of retributive damages to award in a given case (as I explain shortly). Of course, as these various considerations demonstrate, the culpable misconduct that triggers retributive damages is, unlike a cost-internalization approach, not simply a matter of what harm was caused by the defendant. Indeed, on a retributivist rationale, the award of punitive damages has comparatively little to do with the actual amount of harm caused. What matters to vir-tually all retributivists is the culpable conduct of the offender, and that will entail exami-nation of harm alongside a defendant’s imposition of unreasonable risk of harm and any relevant defenses.
A legislature that wanted to reach conduct that wasn’t already criminalized could do so using the general statute described in this section. Nonetheless, in service to princi-ples of legality, legislatures would do well to be as specific as possible in the context of prohibiting that misconduct which should trigger retributive damages.
2. Should Retributive Damages Reach “Harmless” Misconduct? If So, Who Sues?
A more interesting and complex issue to consider is whether all conduct in a juris-diction already prohibited by criminal law should be subject to retributive damages actions. I can imagine why some legislatures might wish to exempt various offenses such that their violations would not be eligible for retributive damages. However, it’s not entirely clear that such exemptions would be justified on retributivist grounds. Let me explain.
Two areas seem particularly pertinent here: first, “harmless crimes” where certain conduct irrespective of harmful result is prohibited, such as driving under the influence of alcohol; and second, inchoate crimes: e.g., solicitation, attempt, and conspiracy. In those two areas of criminal law, criminal penalties are available to punish misconduct even where harms to others did not actually materialize. These two kinds of conduct are some-what confounding in the context of retributive damages because in the domain of tort law, a finding of harm to a victim is conventionally required. But with both these areas of criminal law, there is no victim available to bring a suit for retributive damages even though we have conduct deemed worthy of substantial condemnation.
The relevant question is whether standing to sue for retributive damages should be available broadly. One might restrict the pool of plaintiffs here only to those who were likely victims of the defendant’s actions. Another strategy, which I believe is more con-sistent with the retributivist goal of reducing Type II errors, is for legislatures to empower private attorneys general (PAGs) who discover proscribed misconduct to bring suit for re-tributive damages. This would look similar to the qui-tam structure in which the federal government encourages whistle-blowers to report fraud on the government.
Private attorneys general are entrenched and pervasively influential actors across spheres of law ranging from consumer protection to environmental enforcement. Con-ceived here as those who bring claims without a particular interest as an aggrieved party to the defendant’s misconduct, PAGs would supplement the government’s enforcement work for a range of misconduct that the legislature specifically denominates. While this may seem odd, historically, private parties, including non-victims, were also empowered to prosecute crime for the government. In fact, those PAGs who initiated actions often gar-nered the entirety of the criminal fine that may have been awarded, even if they weren’t victims. To be clear, I’m not suggesting we use PAGs and retributive damages to serve as a complete substitute for the public enforcement of criminal law. As I explain in Part IV.D, there are good reasons for having a professionalized prosecutorial force at the gov-ernment’s employ. But having PAGs empowered to bring an intermediate sanction against defendants is a cost-effective and politically independent mechanism to bring justice to those who perpetrate legislatively proscribed actions.
Two problems with PAG suits exist: first is the fear that they will be brought vexa-tiously against the defendant, increasing the likelihood of Type I errors. Second is the con-cern that having PAGs (rather than public prosecutors) enforce certain laws might jeopard-ize our commitments to other values (such as free speech). But these threats have responses: the rules of legal ethics and civil procedure instruct and forbid lawyers from bringing frivolous or bad faith litigation claims; and the economics of litigation encourage plaintiffs’ lawyers only to take on suits that have some good prospect of recovery. Moreover, under the retributive damages scheme, heightened procedural burdens would be imposed — such as clear and convincing evidence — that would reduce the incidence of false positives. Additionally, to the extent that other values are jeopardized by PAG en-forcement, that decision is one a legislature can make by delineating which rights are sub-ject to PAG enforcement and which ones are not.
A preferable measure to reduce Type I errors, while still remaining true to the re-tributive energy that seeks the reduction of Type II errors (the wrongdoers who escape pun-ishment), would be to adopt a segmented litigation strategy. That is, courts would allow plaintiffs who were actually harmed by the defendant’s conduct to pursue retributive dam-ages in the traditional tort structure. But for those cases involving a PAG, where there was no actual harm, the PAG would be required to notify a governmental agency, perhaps a section of the state attorney general’s office that deals with tort litigation, of the defen-dant’s misconduct. The PAG would lodge the complaint and its evidence against the de-fendant with the government office, and the government would decide whether to bring a case. If the government brought and won a retributive damages action, a portion would go to the PAG as a reward for bringing this misconduct to public attention, much like many jurisdictions reward those who call in crime-stopping tips.
If the government chose not to sue by a certain time, it would have to set out its reasons in a statement. This would facilitate both democratic accountability and judicial or executive review of the declination. The government’s declination would permit the claim to go back to the PAG, who could decide to sue for retributive damages if she se-cured counsel.
This public-private scheme would apply by the same logic to a more controversial realm: those cases where the defendant caused harm to a victim but the victim chose not to seek retributive damages. It is more controversial because allowing third parties to seek re-tributive damages here supervenes upon the choice of a victim to seek or not seek redress against the wrongdoer. From some perspectives, punitive damages serve to vindicate the wrongs against the actual interests of actual victims. By such lights, the PAG scheme would be problematic where victims choose to extend mercy to their wrongdoer by not seeking compensation or retribution. Indeed, some might think the tort system’s essential structure is to empower but not require victims to seek recourse against their wrongdo-ers. Thus to allow for a PAG to seek retribution against the wrongdoer for another per-son’s suffering would be seen as disempowering to the victim, especially if the victim had to testify against his or her will.
From the CCR’s perspective, however, a victim’s declination not only risks leav-ing the state unaware of the defendant’s misconduct (when the defendant could be humbled through coercion otherwise) but it leaves the defendant a risk to other people’s rights, in-cluding, possibly the victim’s. Think here of a victim of a teacher or clergyman’s sexual abuse; if there was independent evidence of the abuse -- say a PAG’s testimony and cam-era-phone pictures -- we might still want a PAG to share awareness of this to punish and prevent this abuse.
Together, these admittedly disparate areas of misconduct—inchoate crimes, con-duct crimes with no resulting harm, and misconduct with resulting harm to victims who don’t wish to seek recourse for the wrong—may all be seen, at least in some contexts, as situations where moral luck operates. The store owner whose fraudulent scheme fails be-cause an honest employee tips off the customer; the drunk who luckily drove home without injuring anyone; the molested altar boy who forgives his parish priest—these each involve situations where a defendant’s culpable misconduct is worthy of sanction, and nonetheless, under a traditional torts scheme, the wrongdoer might escape being held legally responsi-ble. To be sure, these cases could be left for the criminal justice system exclusively. But that would likely leave this category of cases under-enforced in light of the government’s scarce investigative resources and scarce prosecutorial resources (discussed next in Part IV). Moreover, since many retributive theorists take the position that culpable wrongdoing is what generally ought to trigger sanction, not the instantiation of actual harm, it makes sense to have a retributive damages scheme that would endeavor to be indifferent to these eruptions of moral luck.
Punishing these spheres of misconduct through retributive damages might be con-troversial because it involves a paradigm shift for the tort system. States like
that have tried uncoupling victimhood from standing to sue as a civil plaintiff have encountered resistance. Thus a jurisdiction might find more acceptability by using the hybrid regime mentioned earlier to empower PAGs to bring retributive damages actions following a gov-ernment declination; the government may also decide to restrict these cases to alleged mis-conduct involving or risking physical harm or for financial misconduct involving losses greater than (say) $100,000.
Subsequent criminal liability of course only attaches if the underlying conduct is subject to criminal sanction. Thus, depending on the jurisdiction, a defendant facing re-tributive damages for defamation might not trigger any subsequent criminal liability. But a defendant sanctioned for fraud in tort might subsequently be prosecuted under the criminal law. As mentioned earlier, any retributive damages penalties a defendant pays would be credited against subsequent criminal penalties assuming the prosecution was for the same misconduct the defendant was accused of in the retributive damages proceeding. Con-versely, PAGs would not be entitled to bring actions for retributive damages after the gov-ernment has already signaled its intent to criminally prosecute the defendant for the same misconduct. (That would only encourage free-riding on the government’s prosecutorial ef-forts.)
Notice that this approach to figuring out what can be punished through retributive damages doesn’t posit that there is an intermediate category of wrongdoing between so-called private and so-called public wrongs. No intermediate category of wrongdoing (in the sense that it is less severe than criminal wrongs but more severe than private torts) is nec-essary to justify having an intermediate sanction of retributive damages. But it’s important to note that this account also doesn’t view retributive damages as justified only because it serves as a means for enforcing criminal liability. Rather, the wrongs, for purposes of re-tributive damages, are delineated by the legislation authorizing retributive damages, and the scope of that conduct is up to the legislature.
As one can see, the question regarding the proper scope of retributive damages is complicated. My own sense is that retributive damages statutes should come close to track-ing much of what we already criminalize—though I also believe we have too many crimes on the books with penalties that are too harsh. Ideally, we’d have a narrower criminal law and a retributive damages regime that would match much of it, with specific assurances that any conduct punishable through retributive damages would have a mens rea require-ment of recklessness or higher along with appropriate procedural safeguards to reduce Type I errors of false positives. But I don’t view an all-encompassing retributive damages scheme to be required. As with much of criminal law, it should be the product of careful legislative deliberation and subject to heightened scrutiny.
In sum, we can see two approaches here. A familiar and more restrictive approach endorses retributive damages actions only against certain misconduct that actually left vic-tims in its wake, victims who are permitted but not required to bring conventional tort suits including retributive damages A major disadvantage is that such an approach leaves the criminal justice system alone to deal with the whole array of wrongdoing that warrants ret-ribution.
In a world where detecting complex wrongdoing occurring in private is difficult, as I describe in the next Part, and people may not even know they have been victimized, we might want a broader approach that increases the incentives for reporting misconduct to the system. The broader approach would have retributive damages legislation track not only familiar bases for punitive damages in tort law but also a society’s criminal laws.
The broad strategy follows a basic logic. If the underlying misconduct is suffi-ciently noxious to allow criminal sanctions, then the intermediate sanction of retributive damages is also permissible if a defendant’s interests in a fair and impartial adjudication are protected. The broader approach would have the advantage of achieving more instances of retributive justice; and because of the prevention likely instigated by the PAG scheme, it would entail fewer encroachments upon the rights of persons to their bodies and property. The social costs of administration and enforcement would probably increase initially but over time we might see that fewer wrongdoers require punishment because there’s less temptation to commit wrongdoing if they know that any observer (and not just police or prosecutors) can initiate claims. A wider scope of liability, however, would leave more people worried about erroneous accusations and punishments, and could affect people’s preferences regarding how much time they spend in observable spaces.
Monday, March 24, 2008
PatientsLikeMe: A Study in Online Community Issues
The latest New York Times Magazine has an interesting story on PatientsLikeMe, a startup that's bringing the Web 2.0 user-generated-content approach to building communities of patients who suffer from a common disease. They upload truckloads of data about their treatments and symptoms (which the site compiles into outstanding visualizations) and also join discussion boards tailored to their specific illness.
In one respect, the site is an outstanding example of how to design a modern web-based social networking site. Look, for example, at the combination of information displayed on a typical profile page, which mixes space for free-form personal expression with informative standardized graphics based on disease-specific fields. Both this patient's personal statement and his symptoms chart are immediately legible to fellow ALS sufferers. These become a backdrop for conversations on the site's forums (closed to non-members). As the story vividly explains, PatientsLikeMe has been quite successful forming vibrant communities.
The site also, however, raises a set of thorny issues that are by now standard fare for user-driven online communities. The Times story focuses on the potential displacement of expertise. In much the same way that, say, The Motley Fool threatens the privileged status of professional investment advisors, PatientsLikeMe poses a threat to the privilege status of doctors. Patients armed with data from patients like them can pressure their doctors to change their treatment. The article tells the story of one MS sufferer who learned that, "Contrary to what his neurologist told him years ago, 10 milligrams [of baclofen] wasn't the maximum does. It fact, it was at the low end of the scale." Now he's taking 40 milligrams a day. Enough incidents like this one and the phrase "doctor's orders" will come to sound strange indeed.
Of course, doctors have some good reasons to worry, beyond just status preservation. User communities are notorious not just for displaying the wisdom of crowds but also the ignorance of crowds. The article mentions a group of 34 ALS sufferers who "solicit[ed] lithium prescriptions from their doctors and coalesc[ed] into an ad-hoc clinical trial." N=34, with no blinding and no control group is not an ideal experimental setup. The information it produces may have some limited value, but will the community have the statistical and methodological chops to assess that value? As PatientsLikeMe scales up, its users will move from the relatively easy field of data sharing to more difficult problems of data interpretation.
Another classic problem that user-generated-content sites face have to do with the linked problems of data quality and privacy. If PatientsLikeMe becomes a big success, will unethical drug company reps create fake patient profiles to report that the pill of the month provides dramatic results? There are plenty of feedback mechanisms to deal with sock puppets and the overeager-but-misinformed, but their proper use and tuning is a difficult art.
There are also remarkable privacy issues. The article focuses on HIPAA, which PatientsLikeMe neatly circumvents by being a service that individuals choose to use, rather than a health-care provider. (Interestingly, one doctor actually says that physicians -- and thus, not patients -- should be the sole stewards of patient data, neatly illustrating why some people will be cheering loudly if PatientsLikeMe dethrones doctors.) But that circumvention comes at a price. Insurance companies, you can bet, will keep a close eye on the site, looking to learn details about current and potential customers. I predict outraged accusations of egregious privacy violations, similar to the ones hurled by college students infuriated that potential employers have looked at their keg-stand photos on Facebook.
PatientsLikeMe, like it or not, will have to mediate many of these conflicts. Its user agreement (which purports to ban harvesting data from the site, along with registration by true outsiders to its communities) and its business model (to sell data to pharmaceutical companies) give a clue as to its attitude: we own the data, and will control access to keep that data valuable. But that's yet another classic Web 2.0 problem: why is it the site, rather than the users (collectively or individually) that owns the information they provide? Indeed, to the extent that the data consists merely of facts about medical conditions, are there even any meaningful intellectual property rights in it that could be owned?
A "free vote" on tough legislative questions?
An interesting story is developing in the United Kingdom, regarding the "Human Fertilisation and Embryology Bill" now under consideration in Parliament. (Read more here.) Apparently, part of the drama concerns the question whether Catholic MPs (and others who object to the Bill on moral grounds) will be given a "free vote" by the Labour Party:
Cardinal Cormac Murphy-O'Connor, leader of the Roman-Catholic Church in England and Wales, yesterday became the most senior clergyman to insist that Labour MPs should be granted a free vote.
He urged Catholic MPs - including Cabinet ministers Ruth Kelly, Des Browne and Paul Murphy - and those of other faiths to be guided by their religious convictions.
So far, Labour has refused to follow Parliamentary tradition on issues of conscience and allow MPs to vote as they wish on the Human Fertilisation and Embryology Bill, though it has in the past given free votes on issues such as hunting, reform of the House of Lords and fluoride in drinking water.
Instead, MPs will be whipped - meaning they could face disciplinary action if they refuse to support the Bill. . . .
What's the current thinking among political scientists on strong whip policies, party discipline, etc.? Putting aside our views of the merits of the proposed Bill, is it better (and, if so, by what measure?) if a Party can effectively require legislators to vote with their Party on things the Party's leadership really cares about?
Happy Dyngus Day!
In many Great Lakes communities with large Polish communities, the Monday after Easter is "Dyngus Day." In my own South Bend, it's also long been a day (especially for Democrats) for politicking and schmoozing with candidates. (Bill and Chelsea Clinton are in town.)
Dyngus Day is a Polish holiday that celebrates the end of Lent, but in South Bend it's more of a political holiday where residents can meet and talk to elected leaders.
"It celebrates the coming of Christianity to Poland. That's the spiritual side to it," said Butch Morgan, the St. Joseph County Democratic Party chairman. "The political side is it gives everybody a chance to go out and mingle and talk to the elected officials and politicians, ask questions, show support or whatever they want to do."
Usually Polish sausage and beer is served and everyone from Democratic politicians running for minor local offices to gubernatorial candidates give brief speeches. Republicans are allowed to attend, but don't give speeches.
On Omar and Munaf: The Washington Post [Well, You Know...]
I'm not nearly as clever (or tenured) as Sandy is, and so I can only borrow most of the title of his post from Sunday, but I had a similar reaction to a terribly disturbing editorial in this morning's Washington Post, "Imprisoned in Iraq," about the Omar and Munaf cases set to be argued before the Supreme Court tomorrow.
In short, the Post's editorial page "see[s] no basis for the court to grant the detainees access to U.S. courts. It is a well-established tenet of international law that no country has the right or power to interfere with the legal system of another sovereign country." That's certainly true... If only that were the issue.
As I (and others) have suggested before, this is not the classic case of U.S. citizens who commit crimes overseas and are tried before foreign courts. First, it's not at all clear that the Iraqi government even wants one of the two detainees (Omar). Second, both detainees are in American (or at least effectively American) custody, unless one really thinks the presence of a few Bulgarian soldiers makes the MNF-I a "true" multinational force. Third, there is a non-frivolous allegation that the two citizens fear torture and other forms of mistreatment in Iraqi custody. Any of these facts, on their own, should be enough to suggest that these are hardly typical cases, and that the "well-established" tenet to which the Post refers is entirely beside the point. And if custody really is the touchstone of the habeas inquiry, at bottom, the defects in the petitioners' claims run to the merits, not to jurisdiction.
Marty has his own (ever cogent) thoughts here. I've written about these cases before in some detail as well. But it boggles the mind that the Post would write such a callously myopic editorial. Toward the end, the piece notes that:
While the United States must allow the Iraqi legal system to work, it has a strong interest in seeing that Mr. Munaf and Mr. Omar are treated fairly -- inside and outside of an Iraqi court. The U.S. government acknowledges in court documents that "reports of torture remain a concern" in some sectors of the Iraqi government. If the two men are at some time turned over directly to the Iraqi government, the United States must use its considerable diplomatic muscle to ensure that its citizens are not subjected to such treatment.
I had thought we were long past the point where we took the sufficiency of a "diplomatic remedy" seriously where the rights of U.S. citizens were concerned. Apparently not.
Republicrats, Obamacans, and the Unions
So Doug Kmiec has endorsed Obama. But the number of such Obamacans is less than one might predict, given Obama's appeals for such support.
One section of the GOP seems ripe for the picking -- the Northeast-New York section of the Republican Party. These are the Ur Republicans -- the descendants of Federalists and Whigs like Hamilton, Adams, Daniel Webster, forming a Northeast-New York faction once ruled the Party up until, say, Dewey’s defeat by Truman. Teddy Roosevelt, Elihu Root, and Henry Cabot Lodge once epitomized what it meant to be Republican – namely, to be for “sound money” (i.e., the gold standard), mercantile values, and a powerful national government led by the Puritan-Brahmin-merchant elite.
These Old-Style Republicans still exist, although they now probably call themselves independents or even Democrats (of the Prius-driving, advanced degree variety). Call them the Republicrats. They are scattered in a diaspora of earnest Yankee reformers from New England through upstate New York and across the Western Reserve section of Ohio to the northern section of the Old Northwest. And Obama – well-educated, coolly eloquent, urbane but yet morally compelling, surrounded by profs -- appeals to them. So why don’t they flock to his banner as “Obamacans” (or “Obamadents”)?
In a word – unions. Unions are an important part of Obama’s coalition: Their influence might be detected in Obama’s attitude towards NAFTA. But the Old Republicans and their Republicrat descendants never were, and still are not, lovers of unions. Even Rockefeller, the most union-friendly of the breed (allying himself with Peter Brennan and the craft unions), could not abide the public employee unions like Victor Gotbaum’s District Council 37 in NYC.
Why the aversion to organized labor? The Old Republicans were always internationalists: The names of Root and Lodge are synonymous with internationalism. And modern Republicrats like to think of themselves as tolerant cosmopolitans. But unions urge cartelizing labor policies that wreck the international trading system and attack immigration in ways that antagonize our neighbors. The Old Republicans were elitists who detested “machines” – that is, political organizations that prevented merit-based compensation and promotion policies in civil service. And modern Republicrats love “meritocracy” (meaning, perhaps, nothing more than rule by those with the right sorts of alma mater, magazine subscriptions, and test scores). But, to Republicrats, public sector unions are the new machines: Public sector unions wield political clout to pad payrolls and protect jobs for low-performing rank-and-file more effectively than Tammany Hall ever did. The idealistic Republicratic “Teach for America” volunteer is not likely to become a fist-shaking unionist after being decried as a scab by AFT regulars. In the eyes of good Republicrats, prisons in California and public schools everywhere have been ruined by the intransigence of corrections officers’ and teachers’ unions.
So what are the ideological descendants of Root, Lodge, and TR to do? Suppose that you’d like to vote for an intelligent and well-educated President whose policies, in the main, are reasonable, whose character is admirable, and who is likely to staff the government with people like you – academics and do-gooders. But you’d also like to vote for someone who was not beholden to organizations that endorse draconian immigration laws, Smoot-Hawley trade nostrums, and Scargill-style staffing rules in our schools and prisons.
Are you out of luck, stuck between the religious enthusiasms of the Sunbelt and the trade-bashing enthusiasms of the CIO? Perhaps there is some ground for Republicrat hope: The critical recent change in the Democratic Party that might lead the Republicrats to cross over to Obama's column this year is the rise of the SEIU as the dominant private-sector union: Being less threatened by foreign outsourcing, the SEIU is less adamant on trashing free trade. Obama's strong stance in favor of lenient immigration policies also will help assuage Republicrat Internationalists.
In any case, I'm curious to know how many Republicans reading this blog are thinking about jumping ship this year.
Bear Stearns stock: From $2 to $10?
The details of "several days of frantic, secret negotiations" are here. Maybe bullish Bear Stearns speculators weren't so crazy after all. The potential roadblock? The Fed. Even more ammunition for David Zaring's theory concerning a newly engaged (and assertive) Fed.
Retributive Damages: The Basic Account of Retributive Justice
In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law and recent scholarship. In today's post after the jump, I share an un-footnoted and unformatted version of the basic sketch of retributive justice that informs the reconstruction of punitive damages I propose in subsequent posts. For those of you somewhat familiar with my account of retributive justice, I recommend looking at section D, below, because it foreshadows the kinds of concerns a retributivist should have about proposing an intermediate sanction of punitive damages for retribution's sake, or what I call "retributive damages," as opposed to damages for the sake of revenge or victim-vindication.
You can read the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.
THE CONFRONTATIONAL CONCEPTION OF RETRIBUTIVISM
This Part focuses attention on the meaning of retributive justice, in particular upon something I call the “confrontational conception of retributivism” (or “CCR” or “confrontational retributivism”). The CCR is designed to show both the internal intelligibility of retributive punishment situated in a liberal democracy and the limits that attach to the pur-suit of that social project of retributive justice. As the notes below reveal, this account builds upon prior accounts of retributive justice; but it also departs from them in various ways. My point here, however, is not to trumpet or explicate these differences or claim originality on the whole account right now. It’s enough if I can simply paint a rough sketch of retributive justice that is sufficiently sympathetic and attractive to warrant thinking about how to restructure punitive damages in light of it.
The late John Rawls once defined retributive justice as a view of punishment based on the idea that “wrongdoing merits punishment. It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing … and the severity of the appro-priate punishment depends on the depravity of his act. The state of affairs where a wrong-doer suffers punishment is morally better than the state of affairs where he does not; and it is better irrespective of any of the consequences of punishing him.” As Professor Michael Moore summarized, retributivism is the “view that punishment is justified by the moral culpability of those who receive it.” Underlying this description is a sense that imposing punishment for wrongdoing is a self-evidently attractive obligation.
The problem with this intuitive view is that many people think the nature of this obligation still needs more explication. Imagine Jack. He has spitefully run over his neighbor’s prize-winning dog. If the state seeks to punish Jack on account of his purported moral desert, several questions arise. First, why does Jack deserve punishment? Why shouldn’t Jack undergo some form of “treatment,” where we can cure Jack’s anti-social condition or disease? Skeptics might ask why one should embrace the pursuit of retribu-tive justice qua coercive condemnatory deprivation.
Second, even if one agrees with the claim that Jack deserves to endure some pun-ishment in the form of a coercive condemnatory deprivation, it does not automatically fol-low that the state has a right or a duty to punish Jack. Why is the state involved -- and not the victim or her allies? We need an account that can help us understand what it is about Jack’s past offense that might entail the state’s prima facie right and obligation to punish him. Third, we need to figure out the relative weight of the obligation to achieve retributive justice: is it absolute or weighed against other duties and projects?
The account below tries to situate retributive justice as a socio-legal practice whose value is internally intelligible, that is whose value is realized by the communicative experi-ence that occurs when the state inflicts some level of coercion upon an offender who has been adjudicated through fair and reasonable procedures of violating an extant legal norm. In contrast to the account alluded to by Rawls, whose description neither mentions the state nor limits the scope of wrongdoing to legal offenses, the account I offer is essentially a le-gal or institutional view of retributive punishment.
A. The Animating Principles of Retributive Justice
Though there is a rich philosophical literature about the nature of moral desert and its relationship to punishment, my sense is that we need to look elsewhere to understand why punishment against legal wrongdoers is justified in liberal democracies. Someone who is industrious, wise and kind may deserve plaudits, after all, but liberals (among oth-ers) tend not to believe that it is the state’s responsibility to bestow those plaudits as a mat-ter of social programming. Conversely, one might be miserly, greedy, and indolent, but one’s viciousness is generally not understood to be a compelling reason for the state to condemn a person through punishment. So a person’s moral desert, whether negative or positive, is generally and alone insufficient to motivate state action in a liberal democracy.
The CCR, by contrast, explains the attraction of retributive punishment in refer-ence to three other principles that have broader acceptance as specifically, though not nec-essarily only, political ideals: first, responsibility for choices of unlawful actions; second, equal liberty under law; and third, democratic self-defense. On this view, and subject to the constraints of culpability and context, retributive punishment effectuates these ideals that are widely understood and that can be embraced ex ante by citizens of complex liberal democracies such as ours. So when I make the following claims, I am not trying to justify punishment to people who already know they are offenders. I am trying to appeal to their sense of justice in the absence of particular knowledge about their station in life. Under this veil of impartiality, we can assess whether a liberal democracy’s failure to create credible institutions of retributive justice — when it has the means to do so — undermines our commitment to these principles, fostering a sense of impunity and contributing to the con-ditions that erode our belief in the free and equal nature of persons.
Thus, what’s important to see is that the good achieved by punishment is bound up in the practice of punishment itself, so that the practice of punishment has an intrinsic value, and its achievement makes the practice and its limits both internally intelligible and attractive. Equally important, the account offered below explains why the state, rather than the victim or her allies, ought to be the agent that both adjudicates the case of the offender and ensures adequate but not excessive punishment.
1. Responsibility for Unlawful Behavior
Retributive punishment for legal wrongdoing is justified in part because it commu-nicates to the offender that we are respecting him by holding him as a responsible moral agent, capable of choosing and acting unlawfully and therefore in a blameworthy manner. When we credibly attempt to punish an offender who steals, rapes or murders, we are try-ing to tell him that his actions matter to this community constituted by shared laws, and that he will be held responsible for his unlawful actions. Imagine Jack’s attack on the dog and that such attacks are illegal. If the state, in its ordinary course of business, knowingly did nothing in the face of Jack’s attack, its inaction could be read to express two social facts: first, an indifference to the legal rights of its citizens, particularly to the security of their persons and property; and second, a statement of condescension to Jack that my ac-tions will not be taken seriously by the state. When the state makes a credible effort to punish Jack for his action, he’s told he will be held responsible for his unlawful actions. In this way, the attempt at punishment communicates the view that we are autonomous agents capable of responsibly choosing between lawful and unlawful actions.
Communication to the offender is of fundamental importance here. Indeed, the practice of retribution would itself not be internally intelligible if the offender could not understand the message that the state was sending during its confrontation with the of-fender after its adjudication. The offender must be able to understand the communication, though he need not be persuaded by it. He may proclaim his innocence notwithstanding the evidence to the contrary, but if he cannot understand on what grounds he is being pun-ished, then the punishment is not retributive punishment, but merely a coercive deprivation visited upon the offender whose condemnatory character is lost to the offender.
This argument may seem similar to moral desert, but it’s not exactly the same. Think of Jack. Imagine at T1, Jack crushes his neighbor’s dog but then at T2 he bangs his head accidentally and subsequently no longer remembers who he is or what his actions were at T1. Arguably, nothing has happened to change his moral desert; but the point of punishment would be lost — not because he’s suffered a trauma — but because the pun-ishment would lose its communicative significance.
Of course, through the institution of its communicative practice, the state’s retribu-tive punishment also performs an important expressive function. That is, when the state issues plausible threats of coercive condemnatory deprivation through institutions of re-tributive justice, that threat suffices to signal the norm that our actions and our interests matter to the state and those around us. But the point of the practice of retributive punish-ment is not at its core designed to achieve general psychological satisfaction, reduce pri-vate violence, or educate the public about norms of right conduct. Its value is intelligible independent of those consequences. On the other hand, punishment itself may not be nec-essary to communicate the value of being held responsible in particular instances to par-ticular offenders. We might, for instance, envision an offender who, immediately after committing his misconduct, came forward, made restitution, accepted responsibility, and evinced his awareness of this ideal through his own process of repentance. So something else is at stake when we say that state coercion may justifiably be used even where the of-fenders have apparently internalized the significance of the first ideal.
2. Equal Liberty Under Law
Even against a quickly repentant offender, retributive punishment is desirable to effectuate our commitment to the principle of equal liberty under law. In a liberal democ-racy, punishment serves to fulfill part of equality’s promise because we are each burdened by a legal obligation as citizens to obey the law. (By situating this account within liberal democracies, I am assuming that the laws in question are both reasonable, and legitimately generated and applied. The account here may alter as applied in contexts that depart from these conditions.) When someone flouts the law, he elects to untether himself from the common enterprise of living peaceably together under a common law. He is not merely flouting a particular law that he may disagree with, but rather he defects from an agreement about the basic structures of liberal democracy that he (would have) made as a reasonable person in concert with other reasonable people. By his act, the offender implicitly says, “I have greater liberty than you, my fellow citizen.” He cuts himself off from the social order for the purpose of imposing a new order by his acts against people who should enjoy equal liberty as guaranteed by the state’s rule of law in a liberal state.
By making credible the threat to impose some level of punishment, the state is giv-ing its best reasonable efforts to reduce the plausibility of individuals’ false claims of supe-riority, over their victims, if there are any, or against the state. The state’s coercive meas-ures serve as measures communicating our fidelity to the norm of equal liberty under law. Moreover, the measures are communicated to the person most in need of hearing that mes-sage: the offender who has been held to violate our laws. This account reveals in part, then, the intrinsic intelligibility of the practice of retributive punishment—apart from the other beneficial consequences that may contingently arise from its practice.
On this view, it does not matter that few people, if given the chance, would seek to steal, rape, or murder. All that matters is that the offender can be seen, ex ante, as defect-ing from a legal order to which he has good reason to give allegiance, and that he defects in such a way that expresses that he has taken license to do that which others are not entitled. If the state establishes no institutions to credibly threaten his punishment, the offender’s implicit or explicit claim to superiority over others commands greater plausibility than it would be if the state had created such an institution. This rationale helps explains both the notion of equal liberty and its reciprocal obligation of restraint.
3. Democratic Self-Defense
The reasons mentioned so far—effectuating responsibility and instantiating equal liberty under law—are insufficient to explain why the state should decide and implement matters of punishment. All that’s been hitherto explained is why punishing an offender for his unlawful action has some intrinsic intelligibility. But why should the state play the central role in meting out retributive justice? After all, it is only a modern phenomenon that the state has assumed such a function.
Our answer lies in the notion of democratic self-defense. Recall from the sub-section above how an offender’s misconduct implicitly or explicitly serves to substantiate a claim of superiority made by an offender’s unlawful action. That claim of superiority is not merely a claim against his victim. Rather, the offense is a rebellion against the political or-der of equal liberty under law. Each time an offense occurs, the offender tries to shift where the rules of property and inalienability lie, at least with respect to him. In doing so, the offender revolts against the determinations of what those rules are and the constitu-tional rules determining who gets to adjust these rules. Perhaps unwittingly, the offender can be viewed as usurping the sovereign will of the people by challenging their decision-making structure.
The misconduct, then, is not merely against the victim but also against the people and their agent, the state, whose charter mandates the protection, not only of the persons constituting the political order, but also the protection of the decision-making authority of the regime itself. It’s interesting that the principle of democratic self-defense is embodied in the oath taken by federal officers, the substance of which obligates officials to protect the decision-making structure of the nation. The oath illuminates the idea that the Consti-tution must be defended against attack by those who shift the rules unlawfully, thus reveal-ing offenses as, to a greater or lesser degree, forms of rebellion.
To be sure, if we asked the typical offender who commits a “smash and grab,” he would deny that he is making any “implicit” or “explicit” “claim” against the victim, deny that he is engaging in rebellion, and definitely deny that he is trying to “shift” the rules of property or usurp the will of the sovereign. He is just violating the law and hoping to get away with it because he needs or wants the money. Consequently, there might be some-thing unreal about viewing proscribed conduct as a rebellion. But it only looks unreal if I’m supposed to explain why punishment is justified to an offender who already knows he’s an offender. To my mind, that objective seems misplaced. As alluded to earlier, my goal is to explain the attractiveness of retributive punishment to a person trying to secure the conditions for human flourishing ex ante: that is, before he knows whether he’s going to be rich or poor, an offender or a victim, and knowing that he will be able to control his conduct and be punished only for misconduct proscribed by law and subject to his control. Speaking to that person, the attempt to read such misconduct as rebellious seems a lot less unreal.
What’s more, to see the offense as a rebellion is not to say that all rebellions need be quashed with maximal use of resources. Quite to the contrary, the scarcity of social re-sources in a society committed to pursuing various projects of moral significance requires a principle of frugality regarding the use of retributive punishment, such that the state pur-sues and punishes only those acts that are necessary to limit, in order to secure the condi-tions conducive to human flourishing.
Of course, prior to imposing sanctions, the state also must make an adjudication of whether such sanctions are appropriate. What justifies the state’s involvement instead of some private ordering arrangement? For one thing, the modern liberal democratic state serves, almost invariably, as a social union of social unions within a heterogeneous soci-ety. And because private citizens rarely know who will violate their rights to security and property, and thus cannot reach agreement on a dispute resolution mechanism ex ante, the state has the best claim to be both impartial in resolving disputes among its citizens and ac-ceptable to them as the decisor of the disputes among these diverse citizens and the en-forcer of sanctions against the wrongdoer. So we now have a reason to respect the state’s involvement in both adjudication and sanction of wrongful misconduct so long as we can establish a judiciary independent of the executive and capable of ensuring fidelity to liberal constitutional norms that reasonably divide power between prosecutors and judges. This division of labor may be facilitated by the use of juries, especially when there is doubt about the state’s capacity to restrain from tyranny or zeal.
4. Why Punish the Guilty and Not the Innocent?
Commitments to the three ideals described above explain not only why it is attrac-tive to create institutions of retributive punishment but also why certain individuals should be punished and not others. Specifically, we can see why — without recourse to or reliance upon mere intuitions or emotions of vengeance, anger, or hatred — the state must take care to punish only the guilty, and not the innocent. After all, only an actual offender who has been convicted has been judged to have made claims denying his responsibility, his status as an equal under the law, and his proper role in the chain of democratic decision-making. Those found guilty should be punished to contest their false claims. To not punish when we reasonably could is to signal that we don’t care about the actions of the offender or the rights and interests underlying the rule the offender breached or the integrity of our democ-ratic decision-making structure. Additionally, to under-punish or over-punish relative to comparable offenders is to make (rebuttable) claims that some people are granted favors at the hands of the state, violating a basic liberal commitment to equality under the law. By contrast, the innocent should not be punished because they have neither made claims of le-gal superiority through their actions nor can they plausibly be deemed to have usurped power from the decision-making structure to which they have good reason to obey ex ante.
Two points bear emphasis. First, we now have good reasons to reduce both Type I and Type II errors (including problems of under- and over-punishment) in a system reflect-ing retributive values in a liberal democracy. Second, the internal intelligibility achieved by punishment of a guilty offender in turn explains the conceptual linkage between legal guilt and retributive punishment. That does not mean that other theories that are more self-consciously utilitarian are wholly inappropriate bases for thinking about what conduct to criminalize or how to conceive punishments. It just means that they cannot provide a con-ceptual linkage between legal guilt and punishment for proscribed offenses.
B. The Internal Limits on Confrontational Retributivism
I still need to articulate the limits of retributive justice. These limits will necessitate some substantive and procedural safeguards if we try to translate the lessons from this dis-cussion about retributive justice to retributive damages.
1. Modesty with Power: One Institutional Duty Among Many
First, as I adverted to earlier, the practice of retribution is only one attractive social practice among many. Every person interested in social planning must realize that, on the margins, resources spent on the project of retributive justice are resources unavailable for feeding the hungry, housing the homeless, and healing the sick. Thus, to say that retribu-tive justice justifies institutions of punishment in liberal democracies does not mean that punishment ought to be imposed under all circumstances such that the ceaseless or careless pursuit of retributive justice consumes our every and last unit of social resources. This need for moral balancing is consistent with retributivism’s animating moral ideals because, far from being unconcerned with consequences, retributivism urges on offenders the maxim that one cannot disclaim responsibility for the reasonably foreseeable results of one’s freely chosen actions. That maxim applies to retributivist social planners as much as to offend-ers.
Relatedly, the practice of retribution poses significant risks of error and abuse by authorities. When errors or abuses occur, they stand at odds with the animating principles of retributive justice. Consequently, retributive punishment can only be commended when sufficient measures are taken to substantially reduce or eliminate those risks. For that rea-son, retributive practices must be conducted with a degree of modesty, rather than pride, and upon assurances that those risks of error and abuse are tolerably minimal. While invok-ing a principle of modesty may seem theoretically vague, it actually has substantial policy implications. Because the state must demonstrate its awareness for error and abuse, it should forbear from those punishment strategies that evidence a preening sense of superi-ority: modesty in punishment, I’ve argued, entails limits on the state’s ability to adopt pun-ishments like the death penalty that prevent the state from exhibiting contrition to the of-fender wrongly punished.
2. Confrontational Retributivism and Prevention
Second, viewing retributive justice as an institutional practice raises a related point about prevention of offenses. As a practical matter, the establishment of institutions ad-vancing retributive justice will assuredly have some concomitant effect on preventing wrongdoing in the future. This preventive effect in no way taints the moral worthiness of the practice of retribution. (Indeed, for some non-retributivists, the preventive effects are the evidence of the practice’s morality.) We should not rest on incidental deterrence alone, however. The genuine possibility of achieving greater deterrent effect compels mindful-ness of the way in which the state responds to proscribed misconduct; after all, that re-sponse may directly affect the incidence of the proscribed misconduct. If punishing persons is a way for government to respect persons, as some have suggested, then so too is gov-ernmental attention to the prevention of harm to them (and their rights). Thus, if hypo-thetically we were better able to prevent instances of the offense by spending more on the probability of detection and less on the intensity of punishment, we would be remiss in our responsibilities to each other if our institutions did not reflect that factor at all. Conversely, if we could determine that punishing an offense more severely would, with reasonable evi-dence as our basis, reduce the amount of offenses (or in an error-prone system, reduce the number of innocent persons mistakenly swept up in the enforcement dragnet), then that too would constitute a reasonable consideration from a retributivist perspective that considers its ex ante function properly.
Of course, for the most part, these questions of deterrence are contingent and speculative, at least in situations of street offenders, for whom the attribution of rational calculations is somewhat more problematic than it is for organizations. I mention these issues about deterrence solely to explain that deterrence, or better, “prevention,” is not a concern inherently hostile or antithetical to the project of retributive justice. Indeed, pre-vention of offenses is conceptually entwined in important respects with retributivism’s ex ante function because of the underlying mission of preserving and protecting persons and their rights within a polity committed to obtaining the conditions of freedom and security necessary for human flourishing. For that reason, it should come as no surprise that this pluralistic account of retributive justice is able, in the context of extra-compensatory dam-ages, to recognize the distinctive worth of the values underlying other approaches empha-sizing cost-internalization or victim-vindication.
3. Transformative Intent and Confrontational Retributivism
Third, and for now, finally, embedded in the account of the CCR is an intent re-quirement on the part of the state’s punishing agents. To insist only on the offender’s per-ception of his defeat, to the exclusion of the potential internalization of correct values that the confrontation encourages, would undermine the (CCR’s first) interest we have in af-firming our recognition of each other as autonomous moral agents capable of responsible decision making. In order to achieve this vision in the concrete practice of punishment, it is crucial that the denial of the offender's message is explained and carried out in a way that is conducive to the internalization of the values that the retributive encounter is meant to uphold. The encounter need not guarantee the internalization of those values, but it cannot proceed without the desire for that result, and the state ought not take measures that, in the course of punishment, would directly preclude it. At bottom, the state must hope its pun-ishment not only works to deny the offender's claim of superiority, but also his transforma-tion.
C. Confrontational Retributivism as Distinct from Revenge
If we agree that these principles provide a dignified image of retributive justice, then we can see how, contra various courts and commentators, retributive justice might usefully be contrasted with revenge. To begin with, what induces retributive punishment is the offense against the legal order. Where the law runs out, so must retribution. By con-trast, revenge may address slights, injuries, insults, or nonlegal wrongs. The philosopher Robert Nozick identified five other characteristics that tend to distinguish retribution from revenge: (a) retribution ends cycles of violence, whereas revenge fosters them; (b) retribution limits punishment to that which is in proportion to the wrongdoing, whereas revenge is not properly limited by principle; (c) retribution is impartially administered by the state, whereas revenge is often personal; (d) retributivists seek the equal application of the law, whereas no generality attaches to the avenger’s interest; and (e) retribution is cool and unemotional, whereas revenge has a particular emotional tone of taking pleasure in the suffering of another.
A few other important distinctions can be drawn: (f) retributivism always seeks to attach the punishment to the offender directly because it is the offender who makes the claims the state seeks to reject, not the offender’s children or parents, whereas revenge may target an offender’s relatives or allies; (g) retributivism is uninterested in making the of-fender experience generic suffering; rather, and quite distinct from revenge, retribution seeks to use the state’s power to coerce the offender in particular ways, such that certain ideas can be communicated through that coercion; (h) retributivism is interested in, and speaks to, the moral autonomy and dignity of the offender, whereas revenge may be indif-ferent to those qualities; such indifference crucially affects whether and what kind of de-fenses might limit retribution; (i) and finally, retributivism’s intent requirement, discussed above, requires that the punishment not preclude the internalization of the “sense of jus-tice” that would allow for an offender to demonstrate his respect for the norms of moral re-sponsibility, equal liberty under law, and democratic self-defense, whereas revenge has no such requirement.
The value of retributivism, on this account, is realized when the state makes the at-tempt to communicate its commitment to these three norms through the use of its coercive power against him. In contrast to those who might be tempted to view retributivism as merely an “expressive theory” that can be reduced to the success of its norm-projection to society, the CCR reveals retributivism’s intelligibility even if we focus strictly on the rela-tionship between state and offender.
Having explained the internal intelligibility of the public interest in retributive jus-tice, I now turn to how these principles apply to the justification and design of retributive damages.” To be clear, I’m not arguing that confrontational retributivism is the only per-missible justification for extra-compensatory damages; rather, my claim is that adherence to this conception of retributive justice both permits and guides the construction of a re-tributive damages scheme that can be faithful to values including accuracy, modesty, pro-portionality, and equality. Moreover, such a scheme can co-exist peacefully with other purposes sometimes ascribed to punitive damages including but not limited to cost-internalization and vindication of a plaintiff’s autonomy or dignity.
D. Some Implications for Retributive Damages
In this Section, I merely foreshadow how certain values emanating from the pre-ceding account are relevant to the design of retributive damages. I will say a bit more about this in Part III.D. The values have to do principally with: legality, equality, and modesty.
First, this is a legal account of retributive punishment, meaning that what triggers any kind of state-backed sanction must be a violation of a clearly delineated statute that spells out with granularity the kind of misconduct that warrants even an intermediate sanc-tion.
Second, it is an account of punishment animated by concerns for respecting our right to be regarded as equal under the law. The concern for equality has several notewor-thy implications. To begin with, a system that arbitrarily selected for punishment some people’s illegal misconduct while systematically — or haphazardly — leaving untouched the illegal misconduct of others would be one that participated (perhaps unwittingly) in the making of false assessments of whose interests count how much in a liberal democracy. Consequently, when people defy their equal obligation to obey the rules the state has im-posed to protect the rights of others, the state may seek to punish them through traditional criminal law; but if the state doesn’t know of the misconduct or can’t reasonably put its prosecution at the top of its priority list, then it should at least empower private parties to pursue an intermediate sanction like retributive damages. But because these retributive damages are in fact a state-imposed sanction—that is a coerced condemnatory depriva-tion—these damages should be credited against any further criminal punishments for the same misconduct for the sake of avoiding duplicative and disproportionate punishment.
A concern for equality also means curtailing the lottery effects of most punitive damages structures. Plaintiffs shouldn’t receive windfalls because they have the good for-tune of a wealthy injurer and defendants shouldn’t receive discounts based on the good for-tune of having a low-earning victim instead of a high-earning one. In other words, rewards or penalties should not be contingent upon morally arbitrary features of the victim or the defendant.
The CCR also stressed modesty, which entails a high regard for accuracy-enhancing features of adjudication (i.e., the state shouldn’t leap to conclusions quickly and without solid indicia of reliability) and a disdain for measures of punishment that preclude the defendant’s internalization of the retributive message. Applied to retributive damages, defendants should enjoy procedural safeguards that elevate our confidence levels above what’s necessary for compensatory damages but below what’s expected for full-blown criminal sanctions. Moreover, a concern for modesty would entail limiting and structur-ing retributive damages payments so they operate as an intermediate sanction, and hence, won’t jeopardize the ability of the defendant to continue his life or business in compliance with the law’s dictates. Additionally, modesty requires procedural fairness. Specifically, defendants have a right to present defenses that show the conduct to be excused or justi-fied. This has important implications for doctrine. We cannot assume that because a defen-dant wronged one party that the same conduct would necessarily be culpable misconduct to another person in the same jurisdiction or another. That’s the gravamen of the Court’s holding in Philip Morris: a defendant should be able to present defenses they might have against persons who are strangers to the litigation and they shouldn’t be punished based on the harm they may have lawfully caused another. A defendant’s rights to a fair adjudication can’t be eliminated simply because it would make the case a better vehicle for cost-internalization.
E. Why It All Matters
Although the vast majority of civil litigants never receive an award of punitive damages, the times that juries do award punitive damages often make the news. The effect of this publicity is not lost on potential defendants: punitive damages influence the way potential parties view or settle an array of torts cases. Indeed, if punitive damages did not raise much concern, it would be hard to understand why various entities have in re-cent years underwritten the activities of think tanks and academics interested in tort re-form.
In the context of retributive damages, those potential costs may be especially sig-nificant if there are inadequate measures to ensure accurate and fair adjudication. Further-more, the fear of retributive damages may cause some defendants to litigate with greater tenacity or they might refrain from the activity under scrutiny because the activity is close to the line of unlawful but still inside the safe zone. The risks associated with retributive damages are not trivial. When courts and juries award punitive damages, they stigmatize and condemn the defendant. Moreover, if erratically assigned, awards of punitive dam-ages imperil the planning and structuring activities of defendants. Hence, to the extent punitive damages are mistakenly and erratically deployed by juries or courts, there are real consequences that should trigger caution prior to their distribution.
For these – and other – reasons, various scholars, judges and politicians have laced into the typical common law punitive damages regime, calling it unpredictable, undesirable, and far worse. Although the dangers regarding the size, unpredictability, and frequency of punitive damages have been exaggerated, the presence of these risks is not trivial and commands a simple precept: if punitive damages are awarded, they should be awarded and distributed in a way that is ultimately beneficial for society and at the same time consonant with the values a just and attractive society should embrace.
This perspective of caution, however, is not regularly voiced from the cheerleaders for punitive damages in the academy or in the bar. For that reason, having a structure that carefully harnesses the energy of retributive justice while minimizing its risks is important. Indeed, I want to alert the reader to the sensitivity I have for both respecting and constraining retributive energy and I hope that what follows will ensure that I’m not, as it were, writing a check on insufficient funds.
Sunday, March 23, 2008
A Call for "Light Editing" of Cases in Casebooks
Is anyone else bothered by the trend in many casebooks (sadly, I’m only familiar with topics about private law) to eviscerate a case by editing it down to its bare essentials–which can literally mean only a few lines? I suppose the idea is to save time for a busy law student by boiling the issue down to some kernel of wisdom. Or to make certain an author covers a certain topic. However, what is this teaching, especially for first year students?
I would suspect that we lose out in teaching the secondary ability to subtly discriminate from vast masses of information while reading. In law practice, a 40 page case may have 2 paragraphs of import. There is a certain skill in being able to drill down to that central theme from the rest of the fluff. Isn’t that something that’s learned and takes time? But by doing this for law students right from the get-go, are we at cross purposes here? By third year, do students expect that all cases in life must be edited and are lost at sea when they’re not (or at the very least - complain in upper year classes if reading assignments push past 30 pages).
Or, at the very least, is this why we end up with lawyers who, in their briefs, cite volumes of a case for a tiny principle of evidence or a point of civil procedure. Next we’ll be asking for headnotes for the headnotes. I realize a law student has only so much time, but is the cost-benefit analysis of heavy editing here fulfilled in a rational way? If one assigns 30 pages of reading and it’s 20 cases with principle stacked upon principle, is that really what we’re supposed to be doing? Again, what happened to the ability to discriminate?
Another bugbear created from this is the “missing facts” scenario. A heavily edited case in a text misses a key fact which goes to the heart of the legal issue. One is then surrounded by questions which revolve around this gap. This prompts the instructor (hopefully!) to go look up the case (if she hasn’t already done so in the first place) and read the whole thing. Haven’t we all been there before? You have to fill in the facts (“oh, the train had NO brakes? oh...now I see.”). This burns more class time in explaining perhaps incidental factual issues instead of learning the more sublime skills of lawyering.
I’m currently trying to write a casebook on Canadian insurance law. Way more work than I imagined (and its relative 'weight' within the scholarship continuum is a debatable topic for another day). Picking the cases is not easy. Editing them is excruciating. But I’m going for the “lightly edited” cases, as isn’t it always really about the facts, even in law school?
In short, I wish casebooks contained “lightly edited” cases, which still had some of the procedural and - most notably - factual flavour in them. This heavy editing tends to create more problems than it solves. Does anyone else agree?
Friday, March 21, 2008
Fellowships for Aspiring Law Professors
Having taken the VAP route myself (two great years at Florida State from 2001-03), I strongly recommend this increasingly common path into the academy.
Fear the Leprechaun
The Volokh Conspiracy's Todd Zywicki (George Mason) and I made a friendly wager (here and here) on last night's basketball game between George Mason and Notre Dame. As Stewie Griffin would say, "victory is mine." Go Irish.
Email Performance of Yahoo, AOL, Google, Etc.
Like many or most of you, I have multiple email accounts that I forward to a central web-based email program (in my case, Yahoo). This allows me to have professional email accounts and personal email accounts that I can read and search through in one central place.
Far too frequently, emails, through no fault of my own, get lost somewhere in the Internet haze. This is extraordinarily frustrating, because you often never figure out what emails were sent to you that you never received. In many cases, the senders never receive delivery failure warnings. Relatedly, if I send an email out to somebody else and I don't receive a reply, I don't know if my intended recipient, in fact, sent a reply or just never got around to it yet. This can create some awkward moments when you try to follow up ("I'm not sure, err, if you got this email or if you're just slow to respond, so I'm, err, resending it.").
Right now, my "princeton.edu" email is not forwarding properly to my Yahoo account. I spoke to the people at Princeton's IT group, and they send that Yahoo has been blocking email from the princeton.edu domain. It's not a spam filter issue; the email just hasn't arrived (yet?) to Yahoo. Apparently, this can happen if the domain is sending too much spam or perceived spam to Yahoo. I was told that this sort of thing happens from time to time. (I was also told that it happens more frequently with certain other email providers more often than with Yahoo.) Princeton's IT group does not alert users to the problem (Why? Because it only affects those forwarding to Yahoo I'm told). This means that a person may be unware that he missed emails and the sender will not always receive a delivery failure notice.
I'm no expert on all of this, so here's my main question: Are AOL, Yahoo, and Google competing to be the most reliable email service provider? Perhaps they are, though, I'm not aware of any claims to superiority. Are there data on the relative performance of these email providers? Also, can anyone comment on why there isn't a better technological solution to all of this?
Thursday, March 20, 2008
Don't Tread on Me
First, in a belated and indirect response to Jessie's post about In God We Trust, maybe we simply should agree that, ceremonial deism aside, it stinks as a national motto. So I propose that we go back to the beginning: "Don't Tread on Me". That is a motto with some kick.
Second, there a great scene in Part 2, just after the unanimous vote on the independence resolution (Oh: Spoiler Alert: We did declare independence from the Crown). The Chair announces that the motion carried--that the Congress just voted to secede from Great Britain. There follows a period of 25-30 seconds of silence, as the camera pans across the delegates sitting there, looking at one another with looks expressing some combination of "what the hell have we done?" and "what the hell do we do now?"
It is a great moment because it captures--in a way that even the best-written histories or classroom discussions and even the soaring words of the Declaration of Independence cannot--the precipitousness of what the colonies did, the monumental risk that they might not have fully comprehended until the reality of that moment. Of course, as one of the commenters to Rick's post noted, the series has taken some dramatic license, so likely the scene of silence did not happen (I have not read McCullough's book). But it captured the meaning of breaking from England in a way dialogue could not.
Around this time of year, everyone wants to know...
how to write an article that will end up in a top law review. Thankfully, the advice is being given away for free over at this handy new site, the ArticlesEditor Blog. It's worth more than you'll pay for it.
Larry Solum seems to think it's a parody. In light of the email that went out to a bunch of prawfs with blogs, I'm less sure of that. In fact, some of the tips were helpful. But I most liked Orin Kerr's subtle response to the e-pistle.
Dear Anonymous Articles Editor,
Thank you very much for your submission to the Volokh
Conspiracy, entitled "Law Review Articles Editors Blog."
We receive many requests to post material at the Volokh
Conspiracy, and unfortunately we are unable to accept
your submission at this time. We hope you will continue
to submit to the Volokh Conspiracy, and we look forward to
reviewing your submissions in the future.
The Volokh Conspiracy
Feel free to weigh in with other helpful advice or reactions to it...