PrawfsBlawg

Why Aren't Instant Replays Reviewed De Novo?

Many thanks to the whole Prawfs crowd for having me here. Throughout the month I’ll try to blog a bit about constitutional law and being a first year law professor, but I’m going to start with a question of much broader significance: Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call?  Why not review them de novo?

These are familiar questions for lawyers, of course. Standards of review insulate factfinders’ decisions from being overturned on appeal, even when reviewing judges disagree with them. A decision about trial management, for example, can be in some sense “wrong” without being an abuse of discretion. As long as it’s not the latter, it'll stand.

And there may be good reasons for this. If standards of review are essentially a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, then it probably makes sense that the former get primary control over factfinding and trial management (i.e., their decisions on those matters are subject only to clear error or abuse of discretion review), while the latter get a fresh crack at purely “legal” issues (i.e., such issues are reviewed de novo). Heightened standards of review apply in areas where trial courts are in the best place to make correct decisions.

But I don’t see how those arguments apply at all to instant replay in sports, which after all are just appeals of a different kind. An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review—primarily, the relative competence of the factfinder—absent in the context of instant replay?

While puzzling through this momentous issue during last night’s Saints-Pats blowout, I learned that illustrious (aren’t they all?) Prawfs alumnus Chad Oldfather has done some actual, longer-than-a-blog-post thinking about it. He and Marquette 3L Matthew Fernholz have co-authored an interesting new piece called Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, __ Ind. L. Rev. (forthcoming 2010), which as I read it doesn’t take a stand in favor of de novo review (see n. 97) but does use the process of instant replay in the NFL to elucidate some general principles of appellate review.

And for a multimedia version of the principle in action, check out the review of Brad Miller’s possible-buzzer-beater against the Nuggets last month.

Should anyone really care about "ex parte blogging" or editorializing?

Over on Balkinization, Eugene Fidell has a post expressing sympathy with the idea that newspapers and others should forbear from trying to influence the Supreme Court on the same day that the Court is going to hear oral arguments in a case.  Fidell seems to be persuaded by the gist of this student note in the Stanford Law Review, which raises ethical concerns with "ex parte blogging."

With no disrepect to the competent job in the student Note, I find myself boggled at the suggestion that newspapers or other writers (including legal bloggers) should abjure from weighing in on matters before the Court. After the jump, I excerpt the guts of Fidell's argument and some reactions.

Still, the spate of day-of-argument editorials stand out: because of their timing they are most clearly addressed to the Justices themselves, rather than to ordinary readers. It is as if the editorial board were submitting an amicus brief--shorter than the real thing, of course, but much later in time--indeed, so late (long after briefing has concluded) that the parties cannot respond unless perchance the editorial's perspective happened to come up in the course of the argument or in the rare case of post-argument supplemental briefing...

Does it matter that The Times and other newspapers engage in same-day editorializing on pending cases? To the extent that members of the bar are not involved, no legal ethics issue is presented. Even if a lawyer were involved, as Comment [3] to Rule 3.6 of the ABA Model Rules of Professional conduct notes, "the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small. . . ." But even without lawyer participation, the practice implies that the newspaper has influence over the disposition of particular cases and not merely in the court of public opinion. This implication, however subtle and whether or not justified, does not foster public confidence in the administration of justice...

As a friendly observer, my vote would be that newspapers resist the temptation to editorialize on pending appeals on the very day of argument. If a newspaper or other news outlet wishes to influence the outcome, let it do so the old-fashioned way: by hiring counsel and filing a brief like a true amicus curiae. And if it disagrees with the outcome of a case, let it editorialize about the need for corrective legislation or the importance of selecting Justices of a particular bent. But let's allow the Justices a modest and journalistically self-imposed cone of editorial silence on argument days. Journalism and public understanding won't be harmed a bit, and we'll have taken a small step toward underscoring the integrity of the adversary system and what distinguishes the judicial process from other important forms of public decision making in our society.

I'm singularly unpersuaded by the arguments here, but I'm having trouble articulating why--feel free to weigh in with other reasons in the comments. It might be that I don't really accept the gist of limits on ex parte communications... but it is more likely the fact that a blog post (of the sort written or linked to via Scotusblog) or an editorial is a cheap way to get informed commentary out there and that the costs of regulation are likely to exceed any of its benefits. Indeed, informed observers (say, the musings on blogs by legal academics) are not necessarily going to be inclined to file an amicus brief in all cases where such expertise or information would be valuable. It might also be the case that the wealthy and powerful are more likely going to succeed in gathering amicus support than the poor and less powerful; thus if there is a perspective to be shared that might end up being helpful to supporting the "downtrodden" or less popular, I wonder if that's a reason to prefer fewer restrictions (whether based on legal norms, or just social ones).

In any event, less boggling is that Fidell wrote this blog post about the student note.  As the Note reports, it was Fidell who passed on to his wife, Linda Greenhouse, former Scotus reporter for the Times, the tip from a blogger that the Court muffed its survey of American law in the Kennedy v. Louisiana case.  

P.S. Out of disclosure, I should add that I've met Fidell and Greenhouse a couple times through DC lawyer and social circles, but I doubt they could pick me out of a lineup...

Some quick thoughts on Sullivan and Graham, and an FSU face-off...

In discussing SCOTUS' upcoming consideration of the juvie life without parole cases, Jess Bravin in the WSJ yesterday gave a deserved shout-out to my clinical colleagues at FSU's Public Interest Law Center. Prof. Paolo Annino and his comrades did the important empirical survey related to this issue, and uncovered about 111 cases of juvenile offenders who were sentenced to life without parole for crimes committed while a minor. Of those 111, 77 are in Florida. Yay, sunshine state! 

More seriously, I hope to dig into the briefs over the next month and offer some further analysis on this important 8th Amendment issue; in the meantime, you might want to check out Doug Berman's SLP archive of posts here.  In the realm of untutored blog posts, however, let me offer a couple quick off-the-cuff remarks, drawing a bit on my recent paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment (ER). 

In the ER paper, I tried to explain how the SCT in Panetti adopted a view of punishment that is basically a form of communicative retributivism. The Court ruled, per that view, that executions of the presently incompetent are unconstitutional because a commitment to communicative retribution would preclude punishing people who are not fit interlocutors for state punishment.   

Given the Court's Panetti-based interest in achieving the goals of communicative retribution, which requires interlocutors fit for the communicative message of state retribution, it seems that my visiting colleague, Scott Makar, the solicitor general of Florida who's arguing the juvie cases next month, should have to square the rationale of Panetti with the idea of LWOP for juvies. The latter, it seems to me, are empirically not very good interlocutors for communicative punishment.  That rationale seems implicit in Roper v. Simmons too. Of course, Makar might say, well, Panetti and Roper were about the death penalty, and "death is different."  But in truth, that answer has no legs in this context, a point I develop at length in my ER piece, where I try to explain what the implications of the communicative retributive point of view are for non-capital punishment. Being a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed. Even Scalia saw, in his dissent in Roper v. Simmons, that it would be hard to see a stopping point to the rationale . It'll be interesting to see if Scalia is prepared to follow, per precedent, this line of analysis or say otherwise. Any bets?

That said, I don't want to suggest it's an open and shut case from a constitutional perspective looking at other issues of legal interpretation, or from a policy perspective. While I was in South Florida last week for Yom Kippur, I had the chance to chat about this issue a bit with a family friend who's a state trial court judge. He's a pretty humane fellow, but didn't seem to think there were better alternatives when it comes to 17 year olds who have rap sheets a book long, with a heinous underlying offense.  Graham and Sullivan, of course, were 13. 

Last related point: Bravin was right to focus on AMK in his piece. Kennedy was the swing vote in Panetti and Roper, and the key will be for other conservatives to appeal to his conscience. In this vein, check out Bravin's reference to the Alan Simpson (R-Wy.) amicus brief:

"It's too cruel to be constitutional," says Republican former Sen. Alan Simpson of Wyoming, who joined six other former juvenile offenders in a friend of the court brief supporting Messrs. Sullivan and Graham. "For me, it was very important to have some second chances." Mr. Simpson says he was "a monster" who repeatedly got into trouble with his pals, although his offenses -- torching an abandoned building, shooting up mailboxes and killing a cow -- don't approach those of Messrs. Sullivan and Graham.

Risinger vs Allen-Laudan

As three or four of you may remember, almost a year ago exactly I posted here about a terrifically interesting set of articles on the relationship between criminal justice and epistemology by philosopher Larry Laudan. One of those pieces was co-written with NW's Ron Allen, entitled "Deadly Dilemmas," and it appeared recently in a symposium in Texas Tech L. Rev. and is available here. (A follow up of Laudan's work with Allen appears here, dealing with Bail and Crime.)

I registered some of my disagreements with the first Deadly Dilemmas piece here on Prawfs, but was overall quite impressed with much of the article, and Laudan's more general program to rethink the relationship between error rates and the obligations of a liberal state. In any event, though it reflects some of the same ideas I  floated here, there is a far more sophisticated and extensive response to the Allen and Laudan piece (and its agenda) now available in draft on SSRN by Seton Hall's Michael Risinger, which I highly commend.

 I had the chance to read it quickly a few weeks ago, pre-BamBam, and thought it was very interesting. Indeed, had Risinger's draft been available earlier this year, it would have affected the way I drafted some  aspects of my pieces on punitive damages as well as the piece on Panetti and the 8th Amendment.  Unfortunately I don't have time to say much more than that I found Risinger's piece a very helpful addition to the discussion prompted by Allen and Laudan. I will add one more note:  I'm grateful Risinger has done more intellectual history homework than I did, and thereby focused some attention on whether the so-called Laplace-Nozick thesis regarding risk-tradeoffs really merits being called the Laplace-Nozick thesis. Perhaps it's better called the Allen-Laudan tradeoff analysis. Regardless of what we call it, I'm still convinced that some substantial degree of attention to the questions and values underlying the analysis is necessary for serious scholars of criminal justice institutional design. Risinger's piece, along with Allen-Laudan's, are good places to begin that thinking.

Final Version of Executing Retributivism is Now Available

Just a quick note that the final paginated version of "Executing Retributivism: Panetti and the Future of the Eighth Amendment," my recent Eighth Amendment piece, is now available on SSRN, and soon in a Northwestern U. L. Rev. near you (103 Nw U LR 1163 (2009)). Oddly, the Nw U LR has a policy of not using/permitting abstracts, which I found befuddling, since I think abstracts are pretty important, and they didn't have a really good reason for not permitting abstracts, other than consistency with the past and not wanting to irritate other authors who had asked and been denied earlier -- talk about the costs of transition rules! That said, my experience with the NW editing team was truly outstanding, and I commend their EIC Dave Baltmanis and all the other excellent editors who helped me whip this into shape, even as some were prepping for the bar...

Here's the abstract, which I took from an earlier draft.  Again, the final version is available here.

In Panetti v. Quarterman, a 2007 Supreme Court case about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. Although the Court's explanation for this new "rational understanding" requirement was somewhat inchoate, this Article argues that the new requirement only makes sense if there is a commitment to the view that state punishment operates primarily as a communicative retributive encounter between the state and the offender. That view of punishment, in other words, is Panetti's ratio decidendi, the implicit rationale which best explains the case's holding.

Once properly explicated, this rationale entails two profound and insufficiently appreciated consequences. First, the rationale, properly extended, would decisively erode the constitutional justification for the continued use of the death penalty. Second, this rationale would upend the Court's past Eighth Amendment cases that have required neutrality among sentencing purposes selected by the states. Instead, the rationale would elevate "negative retributivism" to a place of primary importance in constitutional criminal law. Under a commitment to negative retributivism, the Court would need to substantially revise at least three areas of law affecting: the practice of warehousing mentally ill persons in prisons; the treatment of claims of actual innocence; and assessments of noncapital sentencing proportionality. In short, once the foundations for the decision are properly understood, Panetti, a seemingly sleepy case about a doctrinally narrow issue, can change virtually everything we know about the Eighth Amendment.

Fagundes & Masur on Costly Screens and the Creation of IP

In the (self-ag-)grand(-izing) tradition of Prawfs visits, I wanted to use my last post here to mention an article I just posted to SSRN along with my co-author Jonathan Masur. Titled “Costly Screens, Value Asymmetries, and the Creation of Intellectual Property”, the paper uses costly screen theory to push back against substantive critiques of the copyright and patent vesting systems, and to explain why positive law creates such different thresholds for vesting these exclusive rights in information. We’re going to present this paper at the plenary session of the Intellectual Property Scholars Conference in NYC later this week. Here’s the abstract:

Copyrights arise the moment an author fixes a work in a tangible medium of expression, costlessly and immediately. Patents, by contrast, arise only after an applicant successfully navigates a cumbersome examination process. Numerous writers have critiqued the resulting proliferation of copyrights as excessive, in some cases arguing for more formalities in order to restrict the ease of copyright vesting. The patent examination process has drawn criticism as costly and ineffective—in contrast to copyright, too laden with formalities. In this paper, we focus on process costs (or lack thereof) to show that these very different means for acquiring intellectual property rights may be more optimal than is generally believed. The high costs of navigating the examination process deter would-be patentees who expect their property rights to generate only low private value. Moreover, due to an important asymmetry among the social and private value of patents, the costly screen is likely to select against socially harmful patents in disproportionately high numbers. The examination system thus eliminates patents that create low social value while creating no risk of eliminating patents that generate high social value. Copyright is characterized by just the opposite asymmetries. Because there are numerous works that generate high social value but low private value, the impact of costly screens would be to preclude the production of many of the publicly beneficial works that copyright is designed to create. In addition to providing a positivist explanation for why the patent and copyright systems differ, this application of costly screen theory also points in the direction of what we call a unified theory of IP process. This theory illuminates the essential connection between the statutory construction of exclusive rights in information and the particular processes by which those rights vest.

Comments are most welcome, of course. And with that, I’m signing off my extended summer visit. It’s been a lot of fun, as always. Thanks to new dad Markel and the rest of the Prawfs crew for letting me stick around for so long, and to readers and commenters for thoughtful insights and fruitful discussions.

Elmendorf and Leib on Citizens' Budgets

We had a false alarm at the hospital last night, which explains why I'm only now getting to share my "other" excitement for the day: Ethan Leib and Chris Elmendorf (UC Davis Prawf) have a thoughtful op-ed on deliberative decisionmaking in the budgeting process; it is in today's NYTimes. Here's the link. I've reproduced it after the jump. Congrats to both Ethan and Chris!

Budgets by the People, for the People

By CHRIS ELMENDORF and ETHAN J. LEIB

NEARLY a month after the June 30 deadline, California’s Legislature and governor have finally agreed on a budget for the new fiscal year. The embarrassing debacle of paying the state’s bills with i.o.u.’s will come to an end — at least for a while. Though Gov. Arnold Schwarzenegger had pledged not to “kick the can down the road,” the budget he intends to sign today relies on $8 billion in accounting and revenue gimmickry, virtually guaranteeing another fiscal crisis next year.

For states as well as families, hard economic times require difficult choices. But some states find themselves in budget battles even when they don’t have the bad economy to use as an excuse. California is the prime recidivist, but since 2002, Connecticut, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Virginia and Wisconsin have also failed to close the deal on a budget on time. Government shutdowns resulted on five occasions.

Budget breakdowns most often occur under conditions of divided government — when Democratic and Republican lawmakers must compromise with one another to get a budget passed. Yet many voters like divided government, and for good reason. Distrusting of the extremes in both parties, these voters want their states to follow middle-of-the-road fiscal policies.

California’s Constitution has long required the Legislature to adopt a budget with a two-thirds vote; eight other states now necessitate supermajorities for some budget items. Such rules effectively force the majority party to negotiate with the minority on the budget since it is rare for one party to win two-thirds of the seats in a state legislature.

In California and elsewhere, politicians and analysts have called for constitutional conventions to revise the basic charter of state government. Believing that fed-up voters will reject any reforms on which political insiders have left their prints, some have suggested that delegates to the convention consist of ordinary citizens selected at random in a process akin to being called for jury duty.

But jurors are given a pretty limited task. They decide one case at a time and their basic choice is binary: guilty or not guilty, victory for the plaintiff or for the defendant. It is probably wishful thinking to expect random citizens to redesign state government from top to bottom.

We suggest a more modest role for an assembly of ordinary citizens: breaking budget stalemates. Here’s how it would work. If the Legislature and the governor fail to adopt a budget four weeks before the deadline for the new fiscal year, a group of randomly selected citizens — one from each legislative district — would be convened to resolve the stalemate. Three competing budgets would be drawn up: one by the governor, one by the Democratic caucuses in the legislative branch and one by the Republican caucuses. (These proposed budgets would have to be finalized before the citizens were selected.)

For two weeks, the citizens’ assembly would hear from and question government leaders, policy experts, interest groups and other supporters and critics of the proposed budgets. The citizens would then deliberate among themselves and vote by secret ballot on which of the budgets to adopt. The vote would take place on the budgets as originally submitted; neither the citizens nor lawmakers would be able to make amendments. The winning budget would become law.

This arrangement would have a number of virtues. First, it would ensure that states adopt budgets in a timely fashion, protecting bond ratings and freeing lawmakers to attend to other important business.

Second, it would give the three institutional actors in the budgetary process — the governor and the Democratic and Republican caucuses — strong incentives to devise budgets that appeal to middle-of-the-road voters, not political ideologues or special-interest favor seekers. Citizens who participate in the two-week assembly would also learn an awful lot about their state’s fiscal situation and competing legislative priorities. These citizen participants would not be as susceptible to sound-bite misinformation as in more traditional exercises of direct democracy.

Our scheme would also do wonders for accountability. When budgets are adopted under divided government (or supermajority requirements), it is hard for voters to figure out exactly who is responsible for the shape of the compromises. If the upside of divided government is centrist compromise, the downside is weakened retrospective accountability at the polls. Our approach to budgeting promotes accountability because the enacted budget would unequivocally belong to “the governor,” “the Republicans” or “the Democrats.” Dissatisfied voters would know exactly whom to reward or fault when they go to the polls at the next election.

Finally, our proposal honors Americans’ insistence on a strong popular voice in government, without demanding too much of citizen participants. It would require them to perform only a fairly simple task: rank your preferences among three proposed budgets, after hearing out the proponents and opponents of each.

Elsewhere, citizens have already proven themselves able to make measured, well-reasoned decisions about budgetary issues in small-group deliberative settings. The Brazilian city of Porto Alegre has been doing participatory budgeting since 1989, which has helped to equalize severe disparities in the standards of living among its residents. In Zeguo Township, China, citizens have been convened through statistically random sampling to establish spending priorities for road, building and construction projects.

Here at home, our participatory budgeting procedure would not be a panacea. But it should result in timely budgets, tailored to the concerns of average voters, for which elected officials can be held to account. That’s definitely better than the mess we have now.

Chris Elmendorf is a professor of law at the University of California, Davis. Ethan J. Leib is a professor at the University of California Hastings College of the Law.

Taxing Punitive Damages, etc.

Update 8/16: We've now got a first shitty draft available for private circulation; if there are tax or torts mavens who wish to read it, please email me asap. Thanks.

It's about four days until my wife is "due." During this pre-baby period, one of my projects has been an effort with my friend and co-author, Gregg Polsky, to finish our "shitty first draft" of Taxing Punitive Damages. I'm happy to say we're almost there. This paper is actually the fourth paper on punitive damages I've been involved with the last few years. The first two came out this past spring (here and here) and I was initially planning on turning to work further on and submit the third one, Punitive Damages and Complex Litigation, later this summer.  But for a cluster of reasons, that piece is now on the back burner and has swapped places with the fourth piece -- the one with Gregg on the intersection of taxation and punitive damages. 

Unlike the earlier co-authoring work I did (and am doing still) with Ethan and Jennifer, where we had overlapping areas of expertise as well as separate ones, this piece with Gregg presents a collaboration where there's really no overlap of expertise. He's the tax guy and I'm, well, the guy who does whatever it is that I do. While I'm definitely not the tax guy -- I never took tax in law school, to my regret, so I've been trying to learn a few things while writing this paper up -- I confess I've had fun learning about all this new legal mumbo jumbo. Tax is fun.  Yeah, I said it.*

Over the next week or so and in the course of a few posts, I'll try to share some parts of the paper's main ideas. There's a rough stab at an abstract after the jump. But keep in mind that all this is tentative, so if you think we're off-base, please let us know.  By the way, we expect to have a circulable draft in the next week or two. If you're a tax person and/or interested in federalism (Brian G? Rick H?), we hope you'll be among the first to read it.

Taxing Punitive Damages
In this article, we address the important but astonishingly under-examined issues associated with the taxation law and policy related to punitive damages. For the most part, the tax consequences of punitive damages are not on anyone’s minds, and as a result of this blind spot, plaintiffs and their lawyers are likely leaving enormous amounts of money on the table in every case involving punitive damages against defendants whose torts occurred in the context of business operations. Of course, even if we assumed that decision-makers regarding punitive damages were aware of the relevant tax effects, there are still a number of other important issues affecting whether a jurisdiction should make punitive damages a) deductible from defendants’ gross income or non-deductible, and b) taxable gains to the plaintiff.  This Article examines those issues, and by doing so, spotlights the policy difficulties associated with trying to use tax law to help achieve the goals of current punitive damages law.  Contrary to a number of scholars who have flatly endorsed the move to a non-deductibility rule to simply increase the putative “sting” of punitive damages, we explain what that change in taxation would augur for a broad array of policy concerns including federalism, settlement incentives, collusion against third parties, and administrative oversight. Because we think a lot of the difficulties associated with the taxation of punitive damages cannot be readily fixed simply by tweaking tax law, we sketch out a vision for what a more attractive punitive damages regime would look like, and how the tax rules would correspond appropriately. 

*Btw, I associated the "Yeah, I said it" line with Chris Rock and his famous joke about who can and cannot be First Lady, but it seems Wanda Sykes may have laid claim to it more prominently by her book title.

Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers

Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump.

The Duty to Rescue and the Registry for Caregivers: A Guest Post

By STEPHEN J. DUBNER

We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

Hmmm. Only parents and spouses. Why not grandparents, cousins, siblings? We think the answer has something to do with the fact that parental and spousal relations are the two familial relationships that persons enter into with some degree of real voluntariness. I can’t choose to have a grandfather or a sister. But I can avoid marriage — notwithstanding the subtle pressures or inducements from Jewish mothers or the government’s social policies. Similarly, obligations to one’s child might be legitimate in part because it’s largely a choice to have a child — at least in an age and polity where contraception, abortion, and the chance to terminate one’s parental rights exist.

Thus, despite the general common law rule in favor of maximizing personal autonomy, the government’s imposition of an obligation to rescue spouses and children is not so illiberal; it reflects the fact that the underlying conduct of having a spouse or child is such that it can be avoided without much difficulty.

What are the rationales offered for penalizing a failure to rescue between spouses? Usually, they are 1) saving human lives in danger and 2) affirming the significance of marital obligations.

The problem with the first interest is that the means used here — spousal obligations to rescue each other, policed through the criminal law — is woefully underinclusive, so much so that it’s hard to take seriously the idea that this is what’s motivating the use of this family-ties burden.

The second objective, by contrast, makes relatively more sense. Although the obligation to undertake easy rescues is not specifically articulated in many wedding vows, it reasonably falls under the language that is often used in those vows.

Our Take

The problem with relying principally on wedding vows in these contexts is that the state ends up drawing weird and inexplicable lines. For example, why do the partners of a newly married heterosexual couple have duties to rescue each other but not those in the long-term homosexual couples living in states that won’t recognize their unions? If the key feature of the spousal relationship (for purposes of assigning omissions liability) is the voluntary assumption of caregiving responsibilities, then we don’t see why the breach of other voluntarily assumed caregiving obligations are not similarly subject to criminal law sanction.

As we argue in greater detail in our book, any potential prosecution of a person for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot or choose not to enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly give the family members of homosexual couples the comfort of knowing that omissions liability is parceled out in a non-discriminatory fashion.

One way to see this discrimination is through analogy: if omissions liability were distributed on the basis of race, such that whites had a duty to rescue their spouses but blacks did not unless they separately contracted for that duty, what message would that send? Our sense is that it exhibits a lack of respect of the value of the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm while a gay man in a similarly meaningful and voluntary partnership does not? In both instances, imposing liability serves the same valuable functions: increasing safety and promoting an ethos of caregiving relations triggered by voluntary choices. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly underinclusive; it leaves out those who cannot get married because of a plainly troubling moral choice made by the state.

For the most part, we do not have much problem with marriage being an overinclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we think several options should be explored.

Some Options For Designing Policy

One solution would be to decouple omissions liability from marriage altogether, and instead ask parties to any relationship to register with a state registry. This would treat all persons the same and without favor. But a no-duty-to-rescue rule in marriage could act like a penalty default rule. On the one hand, it would probably encourage more people outside of marriage to think about whom they wish to rescue. On the other hand, it might also add needless costs associated with persons who by virtue of marriage would already be willing to undertake a duty to rescue.

A better solution, based on reducing the social costs of the scheme, would be to require duties to rescue in marriages and to create a registry for all others who want to participate in a “compact of care” such that they have a duty to perform easy rescues. Marriages would simply have the implicit term of duty to rescue built into them and others outside marriage (including those in polyamourous relationships) could opt into it. This would also allow persons to insist on seeing evidence of opt-in by another person before they decide to jointly acquire property, cohabit, or perform caregiving tasks for one another.

Some might raise concerns that we are too focused on spouses and parents as paradigmatic relationships here. The concern here would be that we are insisting that the sexual family or marriage be the normative ideal for adult interactions with each other. We respectfully disagree. Indeed, the point of our registry system is to obviate this concern entirely. People who are not married but “act” as though they are do not have to register, but they may choose to do so; or just one may decide to do so for the other since the registry is a place of declaring one’s assumption of obligation — it is not predicated on norms of reciprocity, nor does it require contractual formalities. To be sure, our slight preference for assigning duties to rescue in the context of marriage and custodial parenting is responsive to what we think of as the specific features of caregiving written into the “scripts” of marriage, but no one should be forced into those roles.

What’s more, people should be free to and encouraged to assume these obligations outside the scripts of marriage. The registry we endorse permits siblings or cousins or roommates or friends to enter into compacts of care, but the idea is not to require it through the criminal law outside voluntary choices or the specific circumstances of the parent-child or spousal relationships. Indeed, we would resist any state’s attempt to impose a legally enforceable relationship of caregiving or a duty to rescue on those persons outside the parent-child or spousal context because we simply cannot say these relationships have been entered into voluntarily.

In the context of platonic roommates, imposing a duty of care through the criminal law would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of caregiving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them.

It is, of course, possible that very few individuals will choose to register; why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability. If, on the other hand, some individuals do choose to undertake an obligation to rescue, the benefits that decision conveys in terms of promoting safety and promoting an ethos of care and compassion certainly seem worth the effort.

We can also imagine the state incentivizing such registrations through small tax breaks; alternatively, perhaps norm entrepreneurs (private employers or faith groups) will start “opt-in days” to foster solidarity among members of their communities. Of course, because peoples’ relationships ebb and flow, the registry would have to permit people to withdraw from these compacts of caregiving if notice is given to the affected parties. Crazy? Feel free to let us know (gently) in the comments. Thanks again to our wonderful hosts for letting us share our freaky, if not quite freakonomical, ideas.

Should Parents Get Sentencing Discounts? Our Third Freaky Post

Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT's Freakonomics Blog, following our two earlier posts  about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Sentencing Discounts for Parents? A Guest Post

By STEPHEN J. DUBNER

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

It can be argued that depriving children of parents in order to incarcerate the parents for the purpose of punishment is itself a criminogenic (crime-creating) policy. Second, notwithstanding the culpability of the offenders and the harm suffered by the victims of their crimes, it can be argued that the harm is already done; the state should not inflict its own harms on the offender’s children or other persons benefiting from the offender’s care-giving. Indeed, if we urge offenders to bear responsibility for the reasonably foreseeable consequences of their actions, so must the social planners who create institutions of punishment bear such responsibility.

By that logic, our compassion and concern should properly extend to the harm imposed on innocent third parties by the state’s punishments of the care-giving offender. We are therefore willing to agree that compelling circumstances arise when an offender is the sole and irreplaceable caregiver for minors or for aged or ailing persons with whom the defendant has an established relationship of care-giving. Here, however, we reject the suggestion that the law should only value the traditional familial relationship in the context of any accommodations made to “irreplaceable caregivers.” What matters from our vantage point is that the defendant is actually serving a critical social role. We recognize our approach may incur slightly higher “information costs” by abandoning the simple proxy of family status, but this approach in practice is not apt to be more costly than the extant costs of verifying the reality of familial care-giving responsibilities.

Ordinarily, however, we think that harms to innocent third parties should be ameliorated through the institutions of distributive justice, not criminal justice. In an attractive polity, a child without a parent should receive state and communal aid regardless of whether the parent is not around due to sickness, death, or imprisonment. But where the state has failed its obligations of distributive justice, it would not be unreasonable to allow courts to tailor the punishment of caregiver offenders in a way that mitigates third-party harms without simultaneously elevating the offender’s status in violation of the principle of equal justice under law.

Time-Deferred Incarceration

For that reason, and assuming the crime was severe enough that some form of incarceration is deemed necessary, it may be appropriate for legislatures to authorize greater use of time-delayed sentencing to offenders with irreplaceable caregiving responsibilities. Under this proposal, then, if an offender is the irreplaceable caregiver for children, the offender in a time-delayed sentencing scheme would defer his incarceration until after the children reach the age of majority or until alternative and feasible care can be arranged. In the case of caring for aging parents or ill spouses, the incarceration may be delayed until the person receiving the care is deceased, improves in health, or is able to obtain care from another person or entity.

During the period that the incarceration is deferred, the offender would still be punished through the imposition of supervised release conditions. For example, the defendant’s freedom of movement would be dramatically limited so that only work and necessary chores (i.e., taking one’s child to the doctor) would be permitted. Electronic bracelets or other tracking devices could be used to ensure compliance. Additionally, during the time of deferral, the state could attach extensive community service obligations or other release conditions, such as drug testing. Failure to abide by the conditions would lead to more severe punishment than would be experienced absent the deferral of the sentence to minimize possible exploitation by the defendant.

Of course, as we alluded to earlier in our two previous posts, we are also worried about the ways in which the criminal law unreflectively reinforces biases in favor of heterosexual and repro-normative family units. Our view is that if it is made available, then time-deferred incarceration should not be restricted to only those giving care to those with a blood relationship or recognized marriage. That would deny the dignity of thick care-giving relationships in a number of contexts (gay families, for instance) that also warrant the liberal state’s equal respect and concern. Thus, in our view, if the offender has been in a voluntary and established relationship of caregiving, then that should be the critical issue.

As you can see, there are many issues when it comes to finally implementing the mottoes of those who wish to promote families. In the criminal justice sphere especially, privileges and burdens are distributed without a whole lot of careful thinking. Our book is an effort to start thinking about what we are doing when we too quickly use family status in our criminal justice system.

Our Second Freaky Post: Fugitives, Family Status and Criminal Justice,

Today, Ethan, Jennifer Collins and I have a second post up on the NYT's Freakonomics Blog, following our earlier post the other day about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Last week we featured the first of three guest posts by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.

Here is their second post.

Harboring Fugitive Family Members
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Following up on our earlier introductory post about our book on criminal justice and the family, we thought we’d start here with an examination of the same topic that initially sparked our interest in the intersection of criminal justice and the family — namely, how the law treats persons who refuse to cooperate (or actively interfere) with law enforcement on account of trying to protect a family member.

From an article in The Flint Journal:

Kelley Thomas’s 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad’s doorstep on E. Lorado Avenue in Flint, Michigan. Now, Thomas has been charged with harboring a felon. What’s a parent to do? It’s a difficult question, even to Genesee County ProsecutorDavid Leyton. “The fact that he’s the father was discussed by my staff, and we will take that into consideration as the case progresses,” Leyton said. “It’s hard to turn your back on your own flesh and blood.”

The stories of Kelley Thomas and David Kaczynski, the man who helped police apprehend his brother, the Unabomber, are just two of the better-known examples of family members grappling with the dilemma of whether to turn a family member over to the authorities.

In California, a police sergeant was suspended for helping his son evade arrest after committing a series of bank robberies. In Louisiana, a sheriff’s deputy helped his son flee the jurisdiction after alerting him that warrants had been issued for his arrest on child pornography charges. In Minnesota, a mother arrived home just after her son had shot and killed an acquaintance in her kitchen. Instead of calling the police, the mother helped dump the body in an alley and clean up the bloody crime scene. These demonstrations of family loyalty trigger significant media interest, perhaps in part because those who cooperate with law enforcement are often called “snitches” and might be regarded as people who violate “the taboo against turning on one’s family.”

Remarkably, in 14 states, the prosecution of family members for harboring fugitives is not an option, regardless of the nature of the crime or the extent of the family member’s involvement. These states typically exempt spouses, parents, grandparents, children, grandchildren, and siblings from prosecution for providing assistance to an offender after the commission of a crime “with the intent that the offender avoids or escapes detection, arrest, trial, or punishment.” (For those wondering, there is no federal law that provides a family member with an exemption from prosecution.)

In addition to these 14 state exemptions, an additional four states reduce liability for an immediate family member but do not exempt them from prosecution entirely.

Florida’s statutory exemption for family members is an interesting example. It forbids prosecution of spouses, parents, grandparents, children, or grandchildren for helping an “offender avoid or escape detection, arrest, trial, or punishment,” with one important exception; the exemption does not apply if the primary offender is alleged to have committed child abuse or murder of a child under the age of 18, “unless the court finds that the person [claiming the exemption] is a victim of domestic violence.”

Rationales in Defense of the Exemptions

What might be said on behalf of these statutes? First, legislators might think it “is unrealistic to expect persons to be deterred [by the possibility of criminal prosecution] from giving aid to their close relatives.” Under traditional Benthamite sentencing considerations, criminal punishment would therefore be unwarranted as a deterrent because it would be deemed ineffective in any event. Second, perhaps such statutes are “an acknowledgement of human frailty.” Under this view, legislatures have simply recognized that the bonds of familial love will inevitably trump any perceived obligation to the state. A third rationale is the one expressed by a Florida court: “society’s interest in safeguarding the family unit from unnecessary fractional pressures.”

Our View (Against the Exemptions)

Once we analyze these statutes under the framework defended in our book, however, we can see why these rationales are unpersuasive. In short, they fail to account for four important, and to our mind, supervening considerations.

First, the exemptions obviously contribute to a fundamental oddity, indeed an unwarranted disparity: close friends who provide assistance face prosecution, while family members do not. Perhaps even more troubling, the statutes sweep with too broad a brush in another regard as well: they protect those family members who might never have previously enjoyed a meaningful relationship with the primary offender but simply came to the aid of a relative when asked for assistance after the commission of a crime. Moreover, the laws are written only to protect those in traditional state-sanctioned familial organizations.

Further, these exemptions have patriarchal origins. Historically, the focus of these exemptions at common law was to exempt wives from liability for following their “duty” by shielding their husbands. Today these statutes have been drafted largely in gender-neutral terms by extending their protection to other immediate family members, so perhaps they should not be invalidated on the basis of their patriarchal roots alone. But if not crafted carefully, these exemptions may serve to shield from prosecution those who commit crimes in the home against other family members

Our strongest reservations, however, have to do with how these exemptions impede the core functions of the criminal justice system: the imposition of accurate and adequate punishment and the protection of the public from crime. In terms of accuracy, these exemptions do a different kind of mischief than threatening our ability to sort the guilty from the innocent; they facilitate a fugitive’s escape from punishment entirely. Allowing an individual to obstruct justice by hiding a family member obviously frustrates the critical task of capturing guilty offenders. Moreover, this immunity is granted without regard to the heinousness of the underlying crime: the exemption is generally granted whether the fugitive is a forger or a murderer.

While the government’s decision to prosecute someone for harboring a family member fugitive might pose significant stresses upon the defendant’s family, the responsibility for that burden would seem to lie squarely on the shoulders of the family member who commits a crime or decides to enlist his relatives to assist him in escaping adjudication or punishment for his illegal activities. Moreover, while we understand that citizens might agree that it is a difficult choice to turn away family members at a moment of need, we need to recognize that the fugitive might have already wronged, or might pose a future threat to, other persons and other families. Their interests, and the public’s interest, in having fair punishment accurately imposed should be respected too.

Finally, these statutory exemptions create perverse and dangerous incentives that Freakanomics blog readers should appreciate. In a state with a family exemption, there is no reason for a defendant to commit a crime unilaterally; he has every incentive to corral close family members to help him conceal evidence and hide from the authorities because those family members face no criminal consequences for their actions. Why should we create an incentive for a defendant to recruit accomplices and thereby increase the chances of success for his criminal venture? As the Supreme Court recognized 40 years ago, “concerted [criminal] action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”

For these reasons, we think these exemptions based on family status are bad policy. Are we right? Feel free to weigh in on the matter.

Sheila B. Scheuerman on Markel's "Retributive Damages"

Somewhat randomly, I just stumbled across this new essay on the Legal Workshop by Professor Sheila Scheuerman that takes my "Retributive Damages" piece in Cornell to task for a) conjuring a scheme that does not resemble punitive damages, and at the same time b) ostensibly suffers from due process questions arising from the SCT's punitive damages jurisprudence.  Hmmm.  

After the jump, I've reprinted her critique. I'll try to work up a response and share it next week. Though I guess the title of her response suggests something like I'm Alice in Wonderland, I'm nonetheless very grateful to Prof. Scheuerman for the attention she's paid to my work. I hope it withstands her scrutiny, at least when viewed in conjunction with the second piece in the series, How Should Punitive Damages Work?, which came out in final form a couple months ago. If you've read my piece(s), feel free to weigh in on the matter in the comments. Have a good weekend!

Haberman et al on Madoff

Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor... :-)

The piece appears after the jump. Feel free to weigh in with your tempered views in the comments on Madoff's sentence--or his wife's non-sentence...

July 3, 2009
NYC
Is 150 Years Appropriate, or Just Silly?
By CLYDE HABERMAN

Sholam Weiss, a son of Brooklyn, was a crook. By all accounts, he was also a rather unpleasant man, hardly the sort to inspire compassion. A federal judge in Florida certainly had no sympathy for him after he was found guilty of a fraud that drained hundreds of millions of dollars from an insurance company and caused its collapse.

In February 2000, the judge piled up dozens of criminal counts against Mr. Weiss, one on top of another. Thus did she create what is thought to be the longest federal prison sentence ever imposed: 845 years. Mr. Weiss’s projected release date is Nov. 23, 2754. This is only a guess, but he is not likely to make it.

So did the judge, Patricia C. Fawsett, show admirable toughness with a notorious offender? Or was an 845-year sentence simply silly, inviting disrespect for the legal system?

For that matter, what about a sentence of 150 years? It, too, can never be fully served. The reference, of course, is to the century and a half in prison to which Bernard L. Madoff was condemned this week by a federal judge in Manhattan, Denny Chin.

James A. Cohen, a Fordham University law professor, is among those who have a problem with sentences that are on their face impossible. “It prompts in some people a lack of respect for the system,” Professor Cohen said. “Somebody has to be asking, ‘What is that about? What are we really thinking?’ ”

“It’s putting out something that is obviously false and fake to everybody,” he added, “and why are we doing that?”

Obviously, his is not a universally shared opinion. A more popular view is probably that 150 years in prison is too good for the likes of Mr. Madoff. That is reflected in victims’ comments and in the “boil him in oil” tone of much of the news coverage.

But at some point the Madoff case may be examined with more dispassion. Any analysis would have to include the reasonableness of the sentence ordered by Judge Chin, a widely admired jurist. Acknowledging the symbolic nature of those 150 years, the judge cited a need for deterrence, retribution and justice for the victims.

Deterrence, however, is often an elusive goal. It is mentioned by some as a reason, for example, to preserve capital punishment. Yet the Death Penalty Information Center in Washington, analyzing federal crime statistics, has found that the 10 states with the highest murder rates all have capital punishment on their books. Among the 10 states with the lowest murder rates, 6 get by without the death penalty.

With financial crime, are we to take as a given that a grifter will be deterred by sentences that, besides being unrealistic, seem to wander all over the lot? Mr. Weiss got 845 years for ripping off a few hundred million dollars. Mr. Madoff got a mere 150 years for a swindle put at $65 billion. What gives?

The dollar value is “a dangerous factor to focus on in many cases,” said Dan Markel, a law professor at Florida State University. “It introduces a variable that is highly contingent on luck and fortuity to drive sentences,” he said, and it may steer the courts away from “considered assessments” of blame and punishment.

RETRIBUTION? Mr. Madoff is 71. The odds are against his making it to 100. A 30-year sentence would have provided the same degree of retribution as one of 150 years.

As for the victims’ desires, there can be a fine line between justice and pandering. Douglas A. Berman, an expert on sentencing law at Ohio State University, expressed concern about “a tone and culture that says, ‘Hey, if the victims are really ticked, let’s give them their due.’ ”

That said, Professor Berman saw good reason to throw not just the book at Mr. Madoff but the entire library. “This is a blood lust,” he said, “but it’s a setting in which if ever a blood lust was justified, this was it.” He added, “This truly is, for lack of a better term, the Adolf Hitler of white-collar crime.”

Stephen Gillers, who teaches legal ethics at New York University, also puts Mr. Madoff in a criminal class of his own, one that justifies a maximum sentence. With those 150 years, Mr. Madoff is not merely being punished, Professor Gillers said. He is being banished, even in death.

To Professor Gillers, it’s no longer about Bernard Madoff, or even concepts like retribution and deterrence. “We’re making a statement to ourselves about the kind of people we are,” he said, “and what we will not accept.”

Complexity, Judgment, and the Subprime Crisis - The Hedgehog's View

At the end of April, Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, organized a fascinating day-long colloquium on issues of complexity arising in the current financial crisis.  Among other presentations, Barry Schwartz from Swarthmore gave a talk on "the paradox of choice" (i.e., more choice, or more complex choice, doesn't necessarily make consumers happier), and Joe Grundfest gave a luncheon keynote.  One of the questions that kept occurring to me was the context of the complexity issue - what exactly were we trying to fix, if anything?  My analogy was this:  if law is a "science," and something about the financial crisis (whether complexity or something else) reflects a disease, then what is the relationship between what we know about the disease and the regulatory medicine we would want to prescribe?  I liken financial boom-and-bust to bipolar disorder - is there a regulatory equivalent of lithium that we are assured will tamp down the peaks and valleys?  And even if there is, do we want to prescribe it?  Maybe we like the booms enough to bear the busts!  To keep the analogy going, there's a good chance Tchaikovsky and Van Gogh were bipolar - would we have their art if they had been medicated?

More on the hedgehog below the fold.

One of my most treasured Suffolk colleagues has suggested that I am a hedgehog, in the sense of the Greek saying (appropriated by Isaiah Berlin) that the fox has many clever ideas, but the hedgehog has one big one.  My big one (such as it is) is placing the canard "thinking like a lawyer" into the broader category of how people make sense of the world.  (This comes, I think, from spending so much of my professional life as a lawyer not surrounded by other lawyers.)  Nothing provokes this kind of reflection like great calamities, whether they are oceanic or financial tsunamis.  In a nutshell, the question is how we assess what happened against two very different kinds of "oughts":  (a) the normative "ought" of our sense of the way a just world should work, and (b) the descriptive "ought" that a scientist imagines when she comes up with a hypothesis of explanation that has yet to be borne out by experiment.  My working thesis is that thinking like a lawyer - somewhere between advocacy and truth-seeking - gets this all jumbled up.  What lawyers do mostly is look backwards and assess cause-and-effect in a particular way, and make implicit (and not necessary correct) assumptions about predicting the future from what happened in the past.  To put it otherwise, my hedgehog concern deals with difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty. 

The result (how I spent my summer vacation) is The Epistemology of the Financial Crisis:  Complexity, Causation, Law, and Judgment, in which I've argued this is mostly an epistemological crisis - a crisis of faith in science and algorithm as against the ongoing irreducibility of judgment, whether our own or those to whom we delegate it.  In short, it's scary when we thought we had it nailed, and it turns out we don't know what we don't know.  (I apologize for the use of the word "epistemology" but I like it, despite the warning of a good friend that it's a signal of a high "crap factor.")  There's a little something for theorists of all kinds in there, including a critique of Michael Moore's new book Causation and Responsibility (the first extended treatment of causation in the law since Hart and Honore), Adrian Vermeule's Judging Under Uncertainty, and Richard Posner's A Failure of Capitalism. 

Chemerinsky on Why We Write

Erwin Chemerinsky has written a foreword to the Michigan Law Review's annual books issue.  It's classic Chemerinsky: humble, courteous to other voices in the debate, and written with grace.  The title identifies the topic: -- Why Write?  It's not exactly a new topic for law professors, at least those who have earned tenure.  It's been blogged about here, too.  But when someone like Chemerinsky considers it it's worth considering again.

Early on in his discussion he notes that he agrees with Harry Edwards, the D.C. Circuit judge who some years ago criticized the legal academy for focusing too much on theoretical scholarship at the expense of scholarship written for other audiences, especially (in Edwards' critique) judges.  Chemerinsky doesn't criticize theoretical or interdisciplinary work; he just thinks faculties undervalue other types of scholarship.  For what it's worth I agree, though I hasten to add it's just a subjective impression.  I also suspect there's no consensus on where the line is between theoretical and "practical" scholarship.

More interesting is Chemerinsky's analysis of what should count as tenure-worthy scholarship, and how he ties it into the "why write" question.  He ends up focusing largely on originality.  As long as something is original, he implies, its format -- article, treatise, casebook, even brief -- shouldn't matter.  This is a welcome statement, especially from a dean of a law school, though frankly I suspect most deans would at least claim that even a casebook would count toward tenure if it was sufficiently original.  As Chemerinsky reminds us, wonderful scholarship such as Hart & Wechsler's federal courts book has taken the form of casebooks.  But given Chemerinksy's own history of casebook, treatise and brief writing (not to mention his characteristic candor and good faith), there's reason to believe he means what he says.

As for the criterion itself: Originality is pretty intuitive as a criterion for scholarship.  But as I said, what's interesting is how it ties into his ultimate explanation for why scholars write.  Part of that explanation is the contribution original scholarship makes to the knowledge base.  Sure, it sounds presumptuous to think our work makes a difference.  But I think most of us do write with the hope that someone will listen and maybe use our original idea as a component of a bigger idea that will have some real world effect. 

So far, so good. Where I think about getting off the bus is at Chemerinsky's last argument.  Contributing to the larger debate, he says, "seems too instrumental and too incomplete" a justification for scholarship.  Instead, "a fundamental reason" we write is self-expression.  I don't doubt that he's right about that. I get a great deal of personal satisfaction from scholarship I do that I consider well done, and for me, as I suspect for most of us, "well done" scholarship has something original to say.  But I do wonder about our self-expression getting subsidized by tuition-paying law students.  Subsidizing scholarship done in the name of advancing some larger body of knowledge or public good is one thing; subsidizing our self-actualization seems a different matter.  Would I have a right to expect my law school to subsidize (by considering it an appropriate use of my non-teaching work time) work I do writing a novel?  Reading one?  Climbing a mountain?  Doing stand-up comedy (other than class)?

In a sense this is a trivial argument: given that I accept the "contribution to knowledge or the public debate" justification for scholarship, maybe any self-actualization I enjoy is just a collateral benefit that comes along with the broader contribution that (speaking optimistically) my scholarship may make. But still, if a student asked me why I wrote, and I said that it wasn't to change the world, or in order to learn the material better to assist in my teaching, but just because it made me feel good, I wonder how the student would respond. 

Of course, there may be other side-benefits to students from their professors doing scholarship: presumably the professor will know more and thus teach better, or maybe the school's rankings will go up and that will redound to the students' benefit.  Is it a proper answer to the student that I do my scholarship for my own reasons, but that she shouldn't worry about it because it benefits her, regardless of those reasons?

Co-authoring Strategies; books, etc.

Here's a question: have any of you tried co-authoring a law review article with someone using Google Docs? Is there some other software (preferably easy and free) to use also? I ask because I wonder what the best technology strategies are for collaboration. With the Privilege or Punish book and its related projects that I've done with Ethan and Jennifer, we basically just used Microsoft Word, redline and email attachments for everything. That strategy was reasonably effective, but it required each of us to take turns with "command" of the particular project for the most part. Not necessarily the best use of time.

Still, my fear with Google Docs is that one can't easily redline or do things with footnotes. Am I missing something--is there a way to achieve Word-type functionality through some kind of sharing mechanism?

Btw, speaking of intellectual collaborations and other distractions from grading, I thought I'd draw your attention to a cool book that literally just landed across my desk and that I look forward to reading over the summer. It's a festschrift for Morton Horwitz published by Harvard Law School (I've not seen their imprint before) but through Harvard University Press. It's called: Transformation in American Legal History (ed. by Daniel Hamilton & Al Brophy), and it's available here. Here's part of the description:

In this book, Horwitz’s students re-examine legal history from America’s colonial era to the late twentieth century. They ask classic Horwitzian questions, of how legal doctrine, thought, and practice are shaped by the interests of the powerful, as well as by the ideas of lawyers, politicians, and others. The essays address current questions in legal history, from colonial legal practice to questions of empire, civil rights, and constitutionalism in a democracy. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.

In addition to this book, HUP has a bunch of other new books that look very promising as sources of distractions or objects of focus over the summer. If you've read any of them already, feel free to weigh in with thoughts in the comments.

Abramson, Jeffrey--Minerva's Owl: The Tradition of Western Political Thought (cloth)
Garsten, Bryan--Saving Persuasion: A Defense of Rhetoric and Judgment (paper)
Grafton, Anthony--Worlds Made by Words: Scholarship and Community in the Modern West (cloth)
Lamont, Michèle--How Professors Think: Inside the Curious World of Academic Judgment (cloth) (I'm about 2/3ds of the way through this interesting study and hope to share some reactions later this summer)

Mann, Bruce H.--Republic of Debtors: Bankruptcy in the Age of American Independence (paper)
Posner, Richard A.--A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (cloth)
Powe, Lucas A. , Jr.--The Supreme Court and the American Elite, 1789-2008 (cloth)
Schauer, Frederick--Thinking Like a Lawyer: A New Introduction to Legal Reasoning (cloth)

Shachar, Ayelet--The Birthright Lottery: Citizenship and Global Inequality (cloth)
 

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

Valuing Deaths Differently

Via the SSRN "spam," I just came across Kip Viscusi's new paper on "Valuing Risks of Death from Terrorism and Natural Disasters."  Here's the abstract:

This paper uses a random utility model to examine stated preferences for the valuation of public risks of fatalities from terrorist attacks and natural disasters. Traffic-related deaths serve as the common reference point in two series of pairwise risk-risk tradeoff choices. Even after taking into account differences in respondent risk beliefs, the nationally representative sample values preventing terrorism deaths almost twice as highly as preventing natural disaster deaths and at about the same level as preventing deaths from traffic accidents, which pose greater personal risk. Education, seat belt usage, political preferences, and terrorism risk beliefs affect valuations in the expected manner.

As Viscusi rightly points out, risks of terrorism-related deaths are rarely risks that are the product of market options (e.g., I should have bought that Volvo). I wonder if we can say the same is true for deaths resulting from natural disasters, where "choices" to live in "particularly sturdy housing" or dangerously located areas (near the coast) may affect the risks at issue. For what it's worth, I think the major reason reduction of terrorism-related deaths is justifiably prioritized has to do with the sense that "Terrorism attacks represent an attack on the country and involve commodity attributes that go beyond the number of lives lost." It seems to me that this one sentence is the heart of the matter (though it is curiously under-examined in the paper based on my admittedly quick read.)  In any event, Dan Solove and I batted around some of these issues here, which if you're interested in the social policy issues, you may want to check out.

SCOTUS Digs Philip Morris

Thanks to Adam Richardson, one of my RA's and fave students, I just got word that the Supreme Court dismissed cert on the Philip Morris punitive damages case as improvidently granted. It was a one line per curiam statement, available here. Lyle Denniston of the indispensable SCOTUSBlog has this brief report.   I'd be curious to hear rank speculation about why the case got DIG'd in the comments. In the meantime, here's a snippet of Lyle's work, and some links to my own recent and forthcoming work in the area of punitive damages. 

Mrs. Williams’ lawyers told the Court this time: “Twelve years after the tragic death that gave rise to this action and nine years after the lengthy trial of this case, with four appellate reviews in Oregon, and five years after the first of three trips to this Court, it is time for this litigation marathon to end.”  The marathon, however, may not be over yet.  Philip Morris, at an earlier stage in the case, reserved the right to challenge a state law that requires that 60 percent of a punitive verdict goes to the state of Oregon. The company’s argument against that is that Oregon has achieved all of the proceeds it is entitled to have under the global settlement of a group of states’ lawsuit against the industry. Mrs. Williams’ lawyers, backed by the Oregon attorney general, have argued that the tobacco settlement only applied to that specific case, and thus would have no effect on the verdict in her case.   Philip Morris must take an affirmative new step to revive this issue, according to lawyers involved. The verdict stood at nearly $143 million a year ago when Philip Morris filed its latest petition in the Supreme Court.  Under Oregon law, the interest rises at 9 percent a year, indicating that the award is now worth something around $156 million.  Mrs. Williams’ 40 percent share would thus appear to be somewhere above $60 million.  (The compensatory award of $521,485.50 has not yet been paid, because Philip Morris’ various appeals sought a new trial on the entire verdict.)

A few interesting law review issues

After the jump, I thought I'd spotlight a few law review issues that caught my eye recently, including the new Mich LR books issue, a Penn symp on the Eighth Amendment, and a Loyola LA symp on the "frontiers of tort law."

MICHIGAN LAW REVIEW

Volume 107       Number 6       April 2009

 

2009 SURVEY OF BOOKS RELATED TO THE LAW

 

FOREWORD

WHY WRITE?

Erwin Chemerinsky

881

 

CLASSIC REVISITED

BRADBURY: FAHRENHEIT 451

Rodney A. Smolla

895

 

REVIEWS

NUSSBAUM: LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY

Gene R. Nichol

913

 

SPIRO: BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION

Jonathan Weinberg

931

 

SLOBOGIN: PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT

Orin S. Kerr

951

 

AYRES: SUPER CRUNCHERS: WHY THINKING-BY-NUMBERS IS THE NEW WAY TO BE SMART

Edward K. Cheng

967

 

GREENFIELD: THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND PROGRESSIVE POSSIBILITIES

Antony Page

979

 

POLIKOFF: BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW

Amy L. Wax

999

 

BAKER: MEDIA CONCENTRATION AND DEMOCRACY: WHY OWNERSHIP MATTERS

Leonard M. Niehoff

1019

 

MCCRUDDEN: BUYING SOCIAL JUSTICE: EQUALITY, GOVERNMENT PROCUREMENT, AND LEGAL CHANGE

Jeffrey L. Dunoff

1039

 

EPSTEIN: SUPREME NEGLECT: HOW TO REVIVE CONSTITUTIONAL PROTECTION FOR PRIVATE PROPERTY

William Michael Treanor

1059

 

SULLIVAN, COLBY, WELSH WEGNER, BOND, & SHULMAN: EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW

Anthony V. Alfieri

1073

 

UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW

Volume 11       Number 1       December 2008

 

SYMPOSIUM:

CRUEL AND UNUSUAL PUNISHMENT: LITIGATING UNDER THE EIGHTH AMENDMENT

Prison Health Care, Political Choice, and the Accidental Death Penalty

Elizabeth Alexander

1

 

The Failure to Achieve Fairness: Race and Poverty Continue to Influence Who Dies

Stephen B. Bright

23

 

Limiting Excessive Prison Sentences Under Federal and State Constitutions

Richard S. Frase

39

 

Evaluating Institutional Prisoners' Rights Litigation: Costs and Benefits and Federalism Considerations

Sarah Vandenbraak Hart

73

 

Desert and the Eighth Amendment

Youngjae Lee

101

 

Prolonged Solitary Confinement and the Constitution

Jules Lobel

115

 

Preserving the Rule of Law in America's Jails and Prisons: The Case For Amending the Prison Litigation Reform Act

Margo Schlanger & Giovanna Shay

139

 

Opening a Window or Building a Wall? The Effect of Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice More Broadly

Carol S. Steiker & Jordan M. Steiker

155

 

A Closing Keynote: A Comment on Mass Incarceration in the United States

David Rudovsky

207

LOYOLA OF LOS ANGELES LAW REVIEW

Volume 41       Number 4       Summer 2008

 

SYMPOSIUM

THE FRONTIERS OF TORT LAW

 

INTRODUCTION

John T. Nockleby

1143

 

DOING AWAY WITH TORT LAW

Jules L. Coleman

1149

 

TORT NEGLIGENCE, COST-BENEFIT ANALYSIS, AND TRADEOFFS: A CLOSER LOOK AT THE CONTROVERSY

Kenneth W. Simons

1171

 

PUTTING "DUTY" IN ITS PLACE: A REPLY TO PROFESSORS GOLDBERG AND ZIPURSKY

Dilan A. Esper & Gregory C. Keating

1225

 

LIABILITY FOR POSSIBLE WRONGS: CAUSATION, STATISTICAL PROBABILITY, AND THE BURDEN OF PROOF

Richard W. Wright

1295

 

SITUATIONIST TORTS

Jon Hanson & Michael McCann

1345

 

FORM AND SUBSTANCE IN THE LAW OF COUNTERINSURGENCY DAMAGES

John Fabian Witt

1455

 

UPSIDE DOWN? TERRORISTS, PROPRIETORS, AND CIVIL RESPONSIBILITY FOR CRIME PREVENTION IN THE POST-9/11 TORT-REFORM WORLD

Ellen M. Bublick

1483

 

SANCTIONING THE AMBULANCE CHASER

Anita Bernstein

1545

 

SUMMARY JURY TRIALS IN CHARLESTON COUNTY, SOUTH CAROLINA

Steven Croley

1585

 

DRUG ADVERTISING CLAIMS: PREEMPTION'S NEW FRONTIER

Catherine M. Sharkey

1625

 

STATE INNOVATION AND PREEMPTION: LESSONS FROM STATE CLIMATE CHANGE EFFORTS

Alexandra B. Klass

1653

 

TOBACCO CONTROL STRATEGIES: PAST EFFICACY AND FUTURE PROMISE

Robert L. Rabin

1721

The Schlagfest in Geo. L. J. and a mild defense of SSRN emails...

As some of you saw on Co-Op the other day, there's an unusual exchange going on in the pages of the Georgetown LJ this month.  Pierre Schlag has written a(nother) polemic against legal scholarship, and folks as varied as Daniel Ortiz, Richard Weisberg, Richard Posner and Robin West respond. Putting aside the merits of the exchange for now (which I hope to revisit at some point later), I wish to make two small points, indeed, in a phrase I owe to Bob Weisberg, they are thunderously trivial points. [And here it is, I've gone and wasted a perfectly good hour drafting these here in the post...]

First, I couldn't help note that Professor Robin West's response to Professor Schlag is titled A Reply To Pierre. Throughout, and without explanation, Professor West refers to Professor Schlag as "Pierre." Perhaps they are friends. Perhaps P. Schlag implored R. West to call him by his first name given the informality of P. Schlag's paper. In any event, I simply note its apparent and unexplained unusualness, and wondered if it was part of a subtle anti-subordination campaign.  Indeed, although I'm sure it was written well-beforehand, the piece appears on the heels  of New Yorker magazine critic Joan Acocella's letter in the New York Times Book Review this past Sunday, entitled "The Name is O'Connor." In the letter, Acocella decried the habit of the NYT publishing reviews where men are referred to by their last name but women are referred to by their first name.  Of course, it's NOT as if Prof. West refers to men by their first name and women by their last name in this piece.  Still I couldn't help but wonder about the casualness of the reference, the lack of its explanation, and whether that casualness can be, all things considered, normatively justified, especially in the context of a paper defending "normativity" as a law professor's pursuit -- a defense I'm very sympathetic to for reasons of stark self-interest since I'd be out of a job if normativity were verboten. I did once write a piece of juvenilia contending that students and faculty should be on a first name basis with each other. So I am sympathetic to the move, but I wonder if it's a move meant to achieve something else aside from providing a handy and quick referent. [I contacted Prof. West about this and she indicated that it was not intended to subvert or undermine, but rather that since the Schlag piece was informally written, her informality was designed to mirror it and suggest that her critique was intended in a friendly manner also. So that settles that...]

One more trivial point.  (And I hope no one reads this as picking on Professor West, because there's lots more weirdness in Professor Schlag's essay itself, the substance of which Prof. West deftly observes in her remarks, and which I largely endorse by incorporation. Moreover, during the course of writing this post, I came across this absolutely fascinating essay on sex, law, and consent of Prof. West's, which I plan in due course to praise and address a bit more on the merits. )  

In any event, in footnote 8, I noticed her reference to SSRN emails as spam.  Prof. West writes:

When SSRN pops up in the subject line of my emails, I hit delete,
without even a glance, and without even thinking twice. Of course that stuff is spam. It would be nice, in fact, if a sensitive spam filter could select and delete these SSRN emails so I wouldn’t have to. I’m sure I’m not alone in this. Scholarship is now not just like spam [in the Schlagian sense that it is un-nutritious and deadening], it is spam. [italics in original]

I confess I'm puzzled as to why a dean for research (at Georgetown) would say this. First, one opts into receipt of SSRN emails, so they're not the spam of the generally "unwanted" Cialis pill or Russian mail-order bride variety, even though on a particular day, an email from our friends at SSRN might be part of the information overload under which we sometimes labor.  And if one couldn't motivate oneself to un-subscribe from SSRN's mailings, there are in fact sensitive email spam filters that could select and delete these emails: try a filter that deletes anything with publish.ssrn.com in the "from" email address.  Finally, just because the emails on a given day may seem unwanted (even if they are not technically uninvited), that  doesn't make the underlying articles which are linked to in those emails (or any other scholarship) spam, let alone the moral equivalent of spam (qua bad meat or uninvited mass emails). This might be a space where one *should* shoot the messenger but spare from punishment the "message." Indeed, this claim of equivalence between spam and scholarship seemed jarringly inconsistent with West's otherwise illuminating defense of the potential (if not the actuality) of normative legal scholarship, and the exposure of the corresponding shortcomings in Schlag's piece. [After writing this, I showed it to Prof. West, and she said her footnote was intended to ironically make the point that while scholarship is not spam, SSRN floods the market with scholarship and thus, like any commodity which floods the market, the numerous SSRN emails risk bringing down the scholarship's value.  I don't think I buy the argument, but do I share Prof. West's other concern that  these points should not overwhelm the discussion on the merits of the more fundamental critique Schlag makes about legal scholarship, so I'll leave it here, with an invitation to those who want weigh in on that more substantive debate to do so in the comments.] 

Actually, one last point, trying to tie together the essay about consent and sex mentioned above and the relationship we have to these SSRN emails.  In her essay on sex, law and consent, Professor West adverts our attention to the distinction between the unwanted and the unwelcome, a distinction arising out of the literature on sexual harrassment. Perhaps the SSRN emails are unwanted but welcome/tolerated (ie, occuring in a relationship where the sexual attention is welcomed or permitted more generally), and this stands in contrast to the emails selling viagra, which are both unwanted and unwelcome.  If this distinction holds, we might wonder whether the legal scholarship Schlag derides is simply unwanted, or both unwanted and unwelcome...

Should Sara Jane Olson Get to Leave California and Serve Parole in MN?

In today's NYT, noted author Caitlin Flanagan pens an op-ed on the intricacies of parole decisions. Flanagan, you may recall, is the frequently interesting and controversial social critic usually perched at the Atlantic, and formerly of the New Yorker.  Discussing the decision to permit Sara Jane Olson to serve her year of parole by returning to her well-off family and manse in Minnesota, Flanagan argues that it's a mistake for the authorities to give Olson this privilege while so many other Californians serve their parole in CA.  To Flanagan, this decision reeks of the very class and racial injustice that inspired Olson's earlier turn in life as a fetus-stomping, mother-killing, police car-bombing radical member of the Symbionese Liberation Army, which is famous, in part, for its kidnapping of Patty Hearst. (Flanagan has earlier tilled some of this SLA ground here.)

The argument Flanagan makes, however, is elliptic, and, in the end, unpersuasive. She states:

[Olson] served seven years and was released last week, and that’s when her long story came once again to the national fore: her lawyers persuaded California officials to let her serve parole back home in Minnesota. The legal maneuvering by which this bit of comfort has been extended to her — and by which it is now being challenged — is interesting. Because studies have proved that recidivism is lower in those cases in which a prisoner is released to his family, lawyers sometimes argue that the location of parole should be moved if such support is available elsewhere. But it’s a hard case to argue. Only about 1 percent of those currently serving parole ordered by the California Department of Corrections are doing so out of state. Clearly, factors of race and class have come into play. As Celeste Fremon, an expert on gangs and criminal justice, observed on her blog Witness LA: “Over and over again I see young men of color sent away for decades for crimes of far lesser magnitude in which no one was injured. And when they get out on parole, they usually can’t even get their paroles transferred to Riverside — if that’s what they need to be out of harm’s way, get a job and be with their families — much less Minnesota.”

The italicized part of the op-ed is what I want to focus on. Flanagan doesn't give us any basis to think that there's something pernicious here because it could be that the 1 percent of CA's parolees who are out of state are the only people who asked to be serving parole out of state. We would need to know, in other words, how many people are asking to serve their parole out of state to know whether the stat Flanagan cites is of any interest.  

Furthermore, we would need to know what other factors play into the decision by parole boards to let released offenders serve parole out of state.  A number of states don't use parole anymore, so it might be that some people's requests are denied because their sought after state doesn't qualify to satisfy CA's parole requirements. Whether "factors of race and class" are "clearly" in play is just speculative as to this point regarding Olson.  

And for what it’s worth, the point made next in Flanagan’s piece about young men of color goes to the possibility of a separate injustice related to intra-state discrimination. But there's also a potentially race-neutral explanation there. If a gang member's family lives in the same community as the gang with which the offender associated, then the possibility of increased recidivism might offset countervailing benefits associated with consideration of release to the area where the offender’s family lives.  Applied to Olson, it’s a bit implausible to suggest that her return to Minnesota and her family provides the same criminogenic temptation—it’s not as if St Paul MN is where her buddies from the SLA live.

I’m not saying that Olson should have definitely been released to Minnesota. (Some members of the MN government don't want her back, and it's not clear CA should be able to externalize the costs of monitoring parolees onto other states.)  But the case Flanagan presents –with its insinuations of Olson's hypocrisy and CA's  systemic race and class bias in parole decisionmaking—in favor of having  Olson serve parole in CA hasn’t persuaded me, yet. 

I should point out that this discussion raises some similar issues to ones Ethan, Jennifer Collins & I tackle in our book,Privilege or Punish: Criminal Justice and the Challenge of Family Ties, about to come out any day now.  Notwithstanding our general "anti-family" posture in other places in the criminal justice system, we make the case for considering care-giving relationships in the context of prisoner re-entry (but not limiting the analysis to "family status"  strictly speaking).  We also briefly discuss an interesting study by Bedard and Helland showing enhanced deterrent effects when prisons are located far away from an offender's family.  The study, however, does not address the issue Flanagan addresses: namely, whether release to one's family is conducive to reducing recidivism.  

Here's the Bedard and Helland citation. More discussion of that study appears on page 189 of the book in case you're interested.

Kelly Bedard & Eric Helland, Th e Location of Women’s Prisons and the Deterrence Eff ect of “Harder” Time, 24 Int’l Rev. L. & Econ. 147–49 (2004). Notably, Bedard and Helland are able to show that the “harder” time actually serves a deterrent effect; so what may look like a “tax” on families may in the end be an indirect way to keep the family together. Id. at 148–49. They conclude: “[t]he evidence suggests that an increase in average prison distance leads to a decrease in crime. A 40-mile increase in the average distance to a female penitentiary reduces female violent crime, property crime and murder rates by 6.9, 2.3 and 13.3%, respectively.” Id. at 165.

New Article: Duplicative Foreign Litigation

I posted on the topic of antisuit injunctions and international parallel proceedings last week, and mentioned an article I had written.  A few suggested I do an Article Spotlight (the polite PrawfsBlawg way of saying "shameless plug and self-promotion").  So here goes... A copy of the article's draft can be found on SSRN -- Duplicative Foreign Proceedings -- and below is the abstract.  I would be grateful for any feedback or comments. 

What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings – and the waste inherent in such duplication – becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents.

 

The federal courts, however, do not yet have a coherent response to the problem. They apply at least three different approaches when deciding whether to stay or dismiss U.S. litigation in the face of a first-filed foreign proceeding. All three approaches, however, are undertheorized, fail to account for the costs of duplicative actions, and uncritically assume that domestic theory applies with equal force in the international context. Relying on domestic abstention principles, courts routinely refuse to stay duplicative actions believing that doing so would constitute an abdication of their “unflagging obligation” to exercise jurisdiction. The academic community in turn has yet to give the issue sustained attention, and a dearth of scholarship addresses the problem.

 

This article offers a different way of thinking about the problem of duplicative foreign litigation. After describing the shortcomings of current approaches, it argues that when courts consider stay requests they must account for the breadth of their increasingly extraterritorial jurisdictional assertions. The article concludes that courts should adopt a modified lis pendens principle, and reverse the current presumption. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the party seeking the stay can establish that the first-filed foreign action has jurisdiction over the case under U.S. jurisdictional principles. This approach – pragmatic in its orientation, yet also more theoretically coherent than current law – would help avoid the wastes inherent in duplicative litigation, and better serve long-term U.S. interests.

More video looking bad for the police

Update: Because a commenter asked, shameless promotion of my article is permitted.

I unfortunately came across this one too late to include it in my paper on video evidence. This is a video of King County (WA) Deputy Paul Schene in November 2008: slamming a young female arrestee against the wall, flinging her to the ground by her hair, sitting on top of her, and taking two swings at what appears to be the area of her head. The apparent trigger was the girl flipping her shoe off her foot and out the cell door, where it allegedly hit Schene (the video does not show).

Schene is being prosecuted for misdemeanor assault. The video was released following a request from the Seattle Post-Intelligencer under the state open records law and over the objection of Schene's counsel, who insisted that the video "does not tell the whole story" and will inflame public opinion, making it difficult for Schene to receive a fair trial.

A few things about video evidence and civil rights to consider:

1) In my article on video and civil rights, in arguing for a First Amendment liberty to record events in public, I did not account for a different First Amendment issue--the extent to which police-recorded video will become an increasing focus of open-records and FOIA requests. My guess is that the dramatic nature of video evidence attracts more public attention in cases where it is present, which will make the media even more likely to seek access in more cases under state laws and/or the First Amendment.

2) This is another good example of video that is graphic and looks horrific to most people who see it. It likely will prompt a settlement in the certain-to-follow § 1983 action against the officer and the County. And it will play well with the jury in the criminal trial, so I would expect Schene to be convicted. But the video has enough gaps in it that a slow, careful analysis, in light of other testimony, might expose some holes--we do not see where the shoe goes when it flies out the door, we cannot see the girl when Schene has her on the ground, and we cannot hear what is being said.

I am not suggesting that anything that might have been said or done justified his use of force, which seems excessive in any event (especially tossing her to the ground by her hair); my viewing of the video leads me to conclude the force was excessive. But the video does not give the complete context and therefore cannot tell the entire story of the events in there. It should not be used as the sole source of evidence to the exclusion of all else. The mistake that is made is to treat video as if it does tell the whole story, ignoring surrounding contextual evidence to the contrary, and often ignoring ordinary procedure.

3) Ask this question: Should the girl get summary judgment on her excessive force claim? If the answer is no, it must be because some other evidence comes into play that counters the apparent force of the video. And if so, it should work in the other direction, with a video arguably favoring a defendant on a defense motion for summary judgment.

4) Dave Hoffman posts about the unique link among cultural cognition, summary judgment, and video and makes a great point that I just added to my paper: The unique problem of cultural dissensus in video cases is that more people will have seen (and, I would add, drawn conclusions about) video, meaning more people will be offended by a summary-judgment grant labeling their culturally grounded views unreasonable.

5) This case is unique because the officer was caught acting (arguably) unconstitutionally by the department's own station-house camera of which he at least should have been aware. This seems different from the (increasingly common) situation in which an officer acted wrongfully, only to be caught unexpectedly because a bystander happened to have a camera. I am reminded of Ocean's Eleven (the George Clooney version). A recurring theme is that in the casino "someone is always watching" because there are cameras everywhere, except in the room they take a guy for a beating. Apparently Deputy Schene has not seen the movie--or did not heed its lessons.

Will the election for Morgenthau's successor fail us?

Moments ago, the NYTimes reported that famed Manhattan DA Robert Morgenthau will not be seeking re-election. How should we think of prosecutorial elections that follow? Are they good for democracy? Criminal justice?

I was pleased to get some aid on the subject just this morning via a SSRN bulletin.  Ron Wright (WFU), a regular guest-prawf here, has just posted on SSRN a draft of what looks like a great article that will help us think through some of these issues with more clarity.

Here's the abstract.

How Prosecutor Elections Fail Us, Ohio State Journal of Criminal Law, Forthcoming
RONALD F. WRIGHT, Wake Forest University - School of Law

There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control.

Does the electoral check on prosecutors work? 

There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent. The conditions, in some ways, are promising.

Yet the empirical reality of prosecutor elections is not so encouraging. A national sample of over 2000 outcomes in prosecutor elections - described here for the first time - reveals that incumbents do not lose often. The principal reason is that challengers do not come forward very often, far less often than challengers in state legislative elections. Uncontested elections short-circuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district.

Even in those exceptional campaign settings when the incumbent prosecutor faces a challenge and is forced to explain the priorities and performance of the office, elections do not perform well. This article surveys the typical rhetoric in prosecutor election campaigns, drawing on a new database that collects news accounts of candidate statements during prosecutor elections. Sadly, these campaign statements dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations. Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.

Final and New Drafts

I hope everyone had fun celebrating Valentine's day, or not, if that's your preference. Among other things, I had the chance to see the Clint Eastwood movie, Gran Torino.  I thought the acting was a bit forced at times (I'm not sure growling counts as acting), but the movie crescendoes in a very powerful way, especially, I imagine, for fans of Christology. Eastwood's movie-making the last decade or so has been reliably beautiful and so this might be one worth visiting the cinema for, rather than waiting for Netflix. I have it on good authority, by contrast, that Confessions of a Shopaholic and He's Just Not That Into You are ones that can wait until their release on cable.

In any event, I thought I'd just post a quick note to say that the final version of Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction is now available on SSRN or in your local January 2009 issue of the Cornell Law Review.  I will at some point soon be writing a short version of it for the new collaboration among law reviews called The Legal Workshop.*  I hope and invite others to respond to the final version in that forum (or elsewhere).  I've also just posted on SSRN a new working draft of the successor piece to Retributive Damages, entitled "How Should Punitive Damages Work?"  This piece will be coming out later this spring and I only have a couple weeks left before I have my last chance to touch it again, so if there are any folks who have written on or near the subject and wish to weigh in with comments or suggestions for further reading/citations, I would welcome your input via email. 

Last, I've also posted a newly revised and working version of Executing Retributivism: Panetti and the Future of the Eighth Amendment up on SSRN. As with the other working paper, I welcome comments by all and especially from those who have worked in or near the area (of the death penalty, Eighth Amendment generally, and/or punishment theory) and might wish to provide comments or suggestions for further reading and citations (including your own!). My apologies in advance if I neglected to address your work or those of your colleagues--please help me out before it's too late...

   

*This is what I heard about this new enterprise: Legal Workshop, a new online project, is a free electronic resource created and controlled by many of the nation's top Law Reviews, including the Harvard Law Review, the Stanford Law Review, and the NYU Law Review.  Its chief goal is to increase online exposure of published articles. For the Legal Workshop, all of our authors now prepare, with the help of the Executive Articles Editor with whom they are paired, a shortened version of their Article (1500-4000 words), without footnotes, analogous in style to a very brief essay or newspaper op-ed.

Trans Fat

The Spring law review submission cycle is (almost?) upon us.  My contribution to the mass of submissions is Trans Fat, a book review co-authored with Liz Glazer.   In the paper, we review Professor Anna Kirkland's wonderful book Fat Rights: Dilemmas of Difference and Personhood (NYU Press 2008).  The abstract is below the bump.

Liz and I welcome comments.  Thanks!

In her book, Fat Rights: Dilemmas of Difference and Personhood, Professor Anna Kirkland uses fat discrimination as a case study to examine the ways in which we talk about difference in antidiscrimination law. She argues that the proper way to frame questions of difference in antidiscrimination law is not in terms of protected traits or categories, but rather in terms of what she calls "logics of personhood." The logics of personhood are narratives that enable us to talk about which differences matter in a given discrimination case. In other words, they are ways of talking about what happens when people do or do not have rights, as well as whether certain people should be protected by antidiscrimination law. After applying the logics to the case of fat discrimination, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law's categories. By identifying in the logics of personhood the presumptions that lay beneath the surface of antidiscrimination law, Kirkland creates an entirely new way to talk about differences among people.

In this Book Review, we extend Professor Kirkland's discussion of fat plaintiffs to a discussion of transgender plaintiffs. Much like fat plaintiffs, transgender plaintiffs' only hope of articulating actionable discrimination claims is to map their claims onto existing antidiscrimination norms. As Kirkland demonstrates in Fat Rights, fat plaintiffs must cast themselves as disabled in order to state an actionable discrimination claims. And as we demonstrate in this Book Review, transgender plaintiffs must cast themselves as gender-nonconformists in order to state actionable claims. While both fat and transgender employees may be willing to negotiate their identities to win lawsuits against their discriminatory employers, the purpose of this Book Review is to ask whether they should have to. We use Kirkland's logics of personhood to demonstrate that fat plaintiffs and transgender plaintiffs share a common frustration with respect to antidiscrimination law's protected categories, namely, that antidiscrimination law sees both fat people and transgender people differently from how they see themselves. And we argue further that this is a significant harm to a plaintiff's dignity and that antidiscrimination law should take into consideration such dignitary harms.

Should criminal omissions liability attach in the face of victim's apparent consent?

My co-authors and I are just putting the finishing touches on Privilege or Punish, our book about how the criminal justice system uses a defendant's family status to both create and exempt defendants from liability or enhanced punishment. Thus, it's too bad that we are too late in the process to draw upon this fascinating story brought to my attention by Rachel Barnhill, one of my students in crim law this semester. It's the story of an elderly man who claims to have been following his wife's wishes not to call for medical assistance. Should the status-based duty to perform costless rescues apply when the rescuee apparently doesn't want the help? It looks like the hubby will be charged with a criminally negligent manslaughter charge. My guess is that the jury will reject the prosecution if it goes that far. But it's an interesting question about the relationship between consent of victim and the obligation to intervene that typically attaches in spousal or parent-child relations. One concern in this context is that the defendant will justify his omission by claiming that the victim consented to or insisted on his inaction, and that becomes a tricky space to navigate from an evidentiary perspective. Perhaps that defense should be rejected then in cases where there is no independent evidence or third party who can verify the consent's freely given nature.

What say y'all? The story after the jump.

Sheriff's officers have arrested an 82-year-old man after his wife died on the floor of their home, apparently about 10 weeks after she fell out of bed and was unable to get up.
John Klein was arrested for investigation of second-degree manslaughter after he called 911 on Monday to report that his 73-year-old wife Pia had no pulse.
Klein told Spokane County sheriff's Detective Jim Dresback that his wife of 52 years fell out of bed around last Thanksgiving, Dresback said in court papers filed Tuesday.
According to that account, Klein had been working outside, came in and found his wife lying next to the bed in the doorway of the master bathroom. He said she cried out in pain and told him to leave her alone when he tried to help her up.
After that, Klein said he left her lying on her left side on the floor for the next 10 weeks, bringing her food and water, giving her medications and cleaning her but did not summon any medical aid. The woman had no significant medical problems, Klein told detectives. It was not clear what medications he gave her.
Klein's bond was set at $200,000 at his initial court appearance Tuesday. Klein told the judge, in his words, "I don't consider it to be my fault. She did not want help." It was not immediately known if he was represented by a lawyer.
Klein told Dresback the couple have an adult daughter who lives in North Carolina and normally talks with them by phone every other weekend. Asked if the daughter spoke to her mother after the fall, Klein said his wife had told him to tell the daughter she was sick.
When Klein was asked whether his wife had asked him to summon help for her, "he looked down for about five or six seconds, then said, 'No,"' the detective wrote. In the affidavit, the detective alleged Klein was criminally negligent in failing to summon medical help.
Klein reportedly told the detective he thought his wife would eventually get up and start walking on her own, adding he told her to exercise while she was lying on the floor.
The woman apparently had been lying naked on the stained, carpeted floor and had several large ulcers on her left hip and left leg, "consistent with her having been lying on her left side for an extended period of time," the affidavit said. A soiled pillow lay in the bathroom doorway.

13 year-olds in prison for life...and the Eighth Amendment

In today's Times, Adam Liptak has a very interesting piece detailing the situation in which a defendant was sentenced to life without parole for a crime he committed at age 13. A quick overview:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape. The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.” At his trial, Mr. Sullivan was made to say those words several times. “It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.” The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

Sullivan's case is now winding its way through the courts; according to Liptak, his lawyers have recently petitioned the Supreme Court to determine whether a sentence to die in prison is a constitutionally compatible response to a non-homicidal crime committed by a 13 year old. (I tried a quick search for the cert petition but didn't find it; if anyone has it, please forward it along.)  My views after the jump.

My quick sense is that although the Court's Eighth Amendment non-capital proportionality review has been relatively stingy in light of Ewing v. California, 538 U.S. 11 (2003), this case would be a good candidate for reviewing and revisiting those principles and how they apply. For one thing, remember that Ewing was a recidivist with some serious priors (a robbery and several burglaries). He was a grown-up when he committed his crime, and he was eligible for release after 25 years under the 3 strikes rule. By contrast, Sullivan was barely a teenager, and as far as I can tell, without any priors. Justice Kennedy's concurring opinion in Harmelin, which enunciated the now-controlling framework for analysis in proportionality review of non-capital crimes, addressed a non-recidivist who was tagged for life b/c of 600+ grams of cocaine possession. While the defendant there wasn't able to get relief under the 8A (a pretty kooky outcome), at least there the defendant was not 13 years old when he committed the crime. One last point: normally the SCT would look to see if there's a split to resolve among the circuits before weighing in. But as Liptak points out, outside Florida there are no persons in prison for life without parole for non-homicidal crimes commited at the age of 13. In Florida, there's only one other person who fits that criteria, though his conviction involved attempted murder. The fact that Florida is an outlier here may be a good indication that by objective criteria this is a grossly disproportionate response. (Cf. Coker v. Georgia, where Georgia was an outlier with respect to executing rapists of "adult" women; the victim in Coker was 16--and married.)

I also think that in light of the communicative conception of retributivism that was embraced by a majority of the Court in its Panetti decision in 2007, there are certain restraints on punishment that the Supreme Court must embrace. As I argue in my forthcoming article on Panetti and the future of the Eighth Amendment, the Court's constitutional elevation of a communicative conception of retributive justice in Panetti has broad implications -- and beyond the capital context too. 

Punishment, under the Court's view now, requires that the defendant be a fit interlocutor for the communicative nature of punishment. The suggestion that a 13 year old satisfies that fitness requirement in the way that a mature adult does is difficult to accept. Moreover, by insisting on competence and guilt as jointly necessary criteria for punishment, Panetti entails a "negative retributivism" constraint on state punishment. That constitutional constraint supervenes on other legitimate penological objectives such incapacitation or general deterrence. Negative retributivism means that one can only be punished if one is guilty and only as much as one's offense reasonably permits by reference to (desert) or (what comparable offenders with comparable offenses receive); I recognize that the materials in parentheses are not identical, but I offer the second one as a way to care for evenhandedness across cases, which is an important feature of legal accounts of retributive justice. 

Thus, putting aside for now the very pronounced and reasonable concerns that he had a flimsy trial, Sullivan cannot constitutionally be punished in excess of what would be determined to be reasonably proportionate to the severity of his offense. Given that we punish adults with much more severe crimes and far worse records with far less severe punishments, both in and outside Florida, it seems clear to me that Sullivan should be able to raise these Panetti-inspired arguments with some success.  (Oddly enough, similar arguments of mine were found in Panetti's briefs to some effect). Of course, these are the claims that I think would follow from Panetti's reasoning, properly understood and extrapolated. I invite the lawyers and scholars interested in the scaffolding beneath these claims to read the article, a draft of which can be found here.

Junior-faculty juggernaut

In Dan Patrick's immortal phrase, you can't stop the Brooklyn Law School VAPs; you can only hope to contain them. And if one of them is entering a writing competition, everyone else had better look out. (Or as Keith Olbermann would say, they will beat you like a rented goalie!)

First Deborah Widiss won the AALS Scholarly Papers contest with her forthcoming article in Notre Dame Law Review about judicial interpretation of statutes that override prior judicial decisions.

And now Ben Trachtenberg has won the ABA's Ross Essay Contest with this essay about the costs of the criminal justice system's overuse of incerceration.

Brooklyn's VAPs are en fuego!

(I watched a LOT of SportsCenter in the '90s.)

The "Seinfeld" of law-review articles

That's how I like to describe my latest paper, "Attempt by Omission." It's about nothing!

To clarify, the article is about imposing criminal liability on someone who neither performs any act nor causes any harm. It's not unusual for criminal law to punish action without harm (attempt, or more generally, "inchoate" liability) or harm without action (omission liability), but it might seem odd or even troubling to punish where there is neither action nor harm. This article finds that crimes of "harmless inaction" or "inchoate omission" do exist: many of them, in fact. More controversially (to me, anyway; I'm still a little ambivalent about this), the article asserts that such crimes are at least sometimes normatively justified. To quote the abstract: "However unlikely or dubious the legal math may seem, it turns out that zero action plus zero harm can, does, and should sometimes add up to a crime." The article also offers some thoughts about how the inchoate-omission case study might illuminate broader issues regarding how to craft criminal-law doctrine.

Of course, the topic also relates to "Seinfeld" in that the show's final episode involved a prosecution of the characters under a "Good Samaritan" law, i.e., a law imposing omission liability. Such laws might fall into my inchoate-omission category, though only if they allow prosecution regardless of whether the failure to help actually led to any resulting harm.

I guess "Much Ado About Nothing" would also fit as a title ... but then, that title could work for a lot of law-review articles.

The Shaming of John Thain

In this morning's NYT, one of my favorite writers there, Clyde Haberman, goes to town on John Thain, the Merrill Lynch CEO who's been recently deposed.  I understand the sense of frustration and anger; indeed, I'm a shareholder in Bank of America, which bought ML late in 2008 and has since declined precipitously. So it's no surprise to see popular anger (like Clyde's) over reports stating that Thain spent $1.2 million

to redecorate his office — purchases like an $87,784 area rug, a $68,179 19th-century credenza, a $35,115 commode and an $18,468 George IV chair. The rug alone cost the equivalent of nearly two years’ pay for the average worker in New York State. 

As Haberman writes, "If anyone should blush, you’d think it would be Mr. Thain." But Haberman wants the Thains of the world to be held up to scorn and shaming, despite my efforts to persuade him otherwise. My recent arch-nemesis appears to agree:

"Folks like John Thain are perfect candidates for public shaming on billboards and in the press," Professor Calandrillo said. “Their good name is what allows them to succeed in business. Once that is stripped, they have little left.” Others in business, he added, may then think twice about their own actions.

Elsewhere in the Times, however, we also see this bit of reporting on Thain's apparent misjudgments. First, he's stated his plan to reimburse the company for the renovation, whose costs include some other rooms besides his office. Second, and more importantly, it appears the story about Thain's distribution of bonus money is more complicated than reports initially suggest. 

Another point of controversy was Merrill’s decision to pay discretionary bonuses to its employees just a few days before the sale to Bank of America closed — considerably earlier than such bonuses were paid out in years past. In the memo, Mr. Thain appeared to challenge Bank of America’s suggestion that Merrill alone was responsible for the earlier-than-usual bonuses. He said the timing, composition and size of the bonuses were all “determined together with Bank of America.” In the interview, he said that Bank of America even mandated that more of the bonus be paid out in cash rather than stock. Bank of America has countered with its version of the bonus affair, telling The Financial Times: “We never said we didn’t talk with them about it. But, in the end, it was their decision and they informed us of it.”

All this is to say that we'd be better off waiting patiently until all the facts are found before rushing to extra-legal judgments culminating in "stocks" and cyber-pillories. There's always time for cool recrimination later...

Update: Over at Co-Op, Danielle Citron notes with greater specificity the dangers of even the privately-instigated shaming punishments, alerting us to the fact that shaming the Thains of the world can be "particularly potent in our networked age: online and offline shaming can ruin reputations, produce privacy invasions, and lead to offline stalking and physical violence."  She develops that argument in much greater detail in a very interesting piece entitled Cyber Civil Rights, which appeared in the BU Law Review a few months ago and which you can download here.

Sad News

Via Larry, I just came across this abstract.  Assuming the evidence holds up, it's very sad, and probably confirms the intuitions most people have about the implications of skin color...

Joni Hersch (Vanderbilt University Law School) has posted Skin Color, Discrimination, and Immigrant Pay on SSRN.  Here is the abstract:

In "Profiling the New Immigrant Worker: The Effects of Skin Color and Height," (Journal of Labor Economics 2008), I present strong evidence of a wage penalty to darker skin color among new legal immigrants to the United States. Immigrants with the lightest skin color earn on average 17 percent higher wages than comparable immigrants with the darkest skin color, taking into account Hispanic ethnicity, race, country of birth, education, English language proficiency, family background, and occupation in the source country. This current paper demonstrates that the penalty to darker skin color is not a spurious consequence of omitted variables bias. Instead, discrimination on the basis of skin color is the most likely explanation of the findings.

Does Retribution = Orgasm? More on the search for funny footnotes

In some future post to be named later, I hope to weigh in on some of the interesting posts our guest Mike Cahill wrote about retribution earlier this month. In the meantime, I want to continue what appears to my Christmas break tradition of blogging about Occam's dildo and other funny footnotes, especially if they have some tie to the work on retribution that Mike and I are engaged in.  Today, while looking over David Dolinko's 1997 Law and Philosophy article, Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment, I came across Dolinko's discussion and critique of "consequentialist retributivism." He writes:

It seems, then, that positing that punishment of guilty persons is an intrinsic good is far from explaining why there should be a duty to set up state institutions to mete out such punishment.

And the footnote to that sentence reads:

The point is even clearer if, instead of happiness, we think of other plausible, though more disputable, candidates for the title "intrinsically good." One might well believe that the intensely pleasurable sensations accompanying orgasm are intrinsically good, without for a moment supposing that this suggests a duty to set up state institutions to dole out orgasms to people! Indeed, it's not merely that there is no duty on the state to set up such institutions. There is likewise no duty on any individual to provide others with orgasms whenever he or she is in a position to do so.

So the question before us, I suspect, is which metaphor or analogy seems more apt to conduce understanding of the value and obligation of retribution: is the imposition of retribution closer to the imposition of orgasm, the achievement of health (as some commenters on Mike's posts suggested), or something else? :-)

Happy Boxing Day! And as always, feel free to share your own favorite footnotes in the comments.

Gershon, Antigone, Madoff, and Punishing Family Status

First, since the following is apropos the lure of family ties, let me begin by extending congratulations and mazel tov to co-author/co-blogger Ethan Leib and his family on the birth of a baby boy yesterday morning. Gershon: welcome to the burgeoning Prawfs family!

Second, as acknowledged yesterday, I have been an intolerably bad blogger the last few months. While still under the deluge of edits on various projects, I hope the situation will improve soon, and in the meantime, I wanted to quickly draw attention to one aspect of the Bernie Madoff scandal that's been of particular interest to me: the fact that he was turned in by his sons. There's still some question as to whether Madoff's Ponzi scheme was truly a work of solo endeavor, or whether he had to bring in others to help swindle so many of so much. Some folks might believe that the sons had to be involved also despite their involvement in facilitating the apprehension of their father. But according to a recent news account having to do with whether Madoff acted alone:

Investigators were also expected to look at the potential involvement of several Madoff relatives who worked for his firm, including his brother, two sons and others who worked for his various business entities. His wife has also come under scrutiny. To date, however, they also have not been formally accused of any wrongdoing. The law firm representing Madoff's sons, Andrew and Marc, released a statement saying they first learned of the fraud just days ago, when their father tearfully confessed, and immediately turned him in. The two are said to have worked predominantly in another division of their father's company, not in the secretive unit that handled investor money.

The story of Madoff's arrest intersects with some of the issues that motivated the project I'm doing with Ethan Leib and Jennifer Collins on the criminal justice system and the quirky role that family status plays in it.* When I initially started thinking about this topic some three or four years ago, it was largely through the prism of what I thought of as the Antigone problem: the conflict citizens (like Madoff's sons) have between loyalty to family members and duties to the state. As Ethan and Jennifer came aboard the project, we realized in concert that the site of conflict between family and criminal justice was more complex and layered than just the classic Antigone problem, and from that realization, we changed our focus over time to study the various ways the criminal justice system distributes both benefits and burdens to defendants based on their family status or family ties and responsibilities. The Antigone problem, crudely reflected in a way by the Madoff fraud bust, sort of fell away from being our sole object of study, and in fact, virtually recedes from focus other than playing a role in motivating dramatic interest in the connection between family, crime, and punishment.

In any event, I can now report that Punishing Family Status (PFS), the second part of our efforts which studies and proposes reforms to the burdens placed on defendants on account of family status, is now available in final form on SSRN and on Westlaw. (I've also just received my offprints; if you'd like a hard copy, please email me your mailing address, especially if you didn't receive my last batch of offprints.) PFS is the basis of a mini-symposium in the Boston University Law Review's December 2008 issue. The issue (and the offprint) includes a set of fascinating responses by our own Rick Hills and Michael O'Hear, and a reply by us. Btw, make sure you check out the BU LR December 2008 issue so you can also see Carissa Hessick's very interesting piece, which looks at the role of prior good acts in sentencing  -- more on that in another post perhaps.

*We just received the book proofs for this project, which comes out in a few months; you can pre-order it here at Amazon.

 

The Irrepressible Myth of Rethinking and Taking Things Seriously: A Reply to Wexler

Jay's post on the use of Rethinking and Taking Seriously in legal scholarship reminds me that my current project (to be eviscerated at PrawfsFest! this week) is entitled The Irrepressible Myth of Klein. Surprisingly enough, a Westlaw search found only three other cases that have been tagged as irrepressible myths by scholars.

Can you name them?

Celotex Corp. v. Catrett: Adam Steinman
Marbury v. Madison: Michael Paulsen
Erie RR v. Tompkins: John Hart Ely

Retribution: an emerging consensus?

Now a chance to trumpet other people's work. Following up on my previous post, I want to point out that the "consequentialist retributivist" position I present there is not solely my own (though I do think my article provides an especially direct and thorough elaboration of it). Others have also advanced such a view, or strongly hinted at it, or at least have shared its critique of the competing retribution-as-deontological-duty view. For example, in this article (written at the same time as, and independently of mine), Mitch Berman expresses what I take to be a similar position in the end, though in a very different way and with different emphasis. Mark White confronts the same problem (how do we pursue retribution in a world of scarce resources?) in this piece, though his analysis and conclusions differ somewhat. (Interestingly enough, White's piece was also written around the same time, and independently of mine.) Doug Husak points out the need to balance retribution with other goals in this short piece (scroll down to page 991 of the volume). Last but certainly not least, noted Prawf Dan Markel presents a similar view on pages 2193-94 and 2212-13 of this article, among several other places.

Now my question: does anybody disagree?

First of all, it seems quite interesting to me that other several people were pursuing similar questions, and reaching compatible answers, at the same time I was. (I'm glad I didn't write a different article before getting to this one.)

More generally, though, I wonder if the retribution-as-duty view, long associated with retributivist thinking, still has any committed adherents. As my article discusses, even Michael Moore (as serious and sophisticated a retributivist as anyone) seems to have retreated from that view in his recent writing. I've also heard from criminal-law theorist Kim Ferzan about an informal conversation she had with some other retributivists, including, I think, Moore and Berman, and others I can't recall. The generally shared view seemed to be that while "negative" retributivism (avoiding punishment of the innocent) might be a duty, "positive" retribution (punishing the guilty) should probably be seen as something like a good.

That sounds more or less like an emerging consensus to me. I'm not sure I agree that even negative retributivism imposes a deontological duty: in some cases, it might be appropriate (though regrettable) to punish an innocent person for the sake of saving hundreds or thousands of other innocents. I think the easiest way to get to that result is to see it as a tradeoff of consequentialist goods and harms, but it might not be the only way; others (including Moore) seem to think a "threshold" understanding of duties can get to the same place. In any event, the bottom line is that there seems to be a lot more agreement than discord here.

Like many people, I'm in the habit of agreeing with myself. Often, though, I don't agree very strongly. Yet in this case, I do feel pretty strongly that "consequentialist retributivism" makes sense, and it seems others hold similar views too. Are we all just making a point that's clearly correct, even if previously obscure or unelaborated? Have the deontological retributivists left the building?

Retribution: duty, or good?

This post falls into the "trumpeting my own work" category (though it might also bear some tangential relation to Ken Simons's interesting series of recent posts on consequentialism). I'm getting it out of the way early so I can move on to asking some questions about legal education, which I'm hoping to spend most of my time here doing.

Anyway, here's the point. Most criminal theorists discuss retributive justice as a deontological duty: a categorical obligation to impose punishment on those who deserve it, and avoid punishing those who don't. (Dan Markel would object to my equation of retribution and desert, but never mind that right now. In fact, I will tend to use the terms "retribution" and "desert" interchangeably, partly for the sake of mixing things up but mainly to annoy Dan.) I think a better way, and perhaps the only realistic way, to view retribution is as a consequentialist good: a positive value we should seek to maximize, but which can (and must) be traded off against other consequentialist goods. (Note: I mean that retribution should be viewed as an intrinsic good, not just as having instrumental value toward achieving some other good such as welfare or utility. Consequentialism can admit of a plurality of goods, and I think retributive justice is one.)

Why does it matter whether we see retribution as duty or good (assuming we care about it at all)? For (at least) two reasons, I think. First, the bad news, at least from the perspective of retribution's status in criminal theory. If retribution is not an affirmative obligation, then it can't provide a (fully) justificatory account of punishment. One explanation of the justification for having a criminal-justice system (i.e., a system of state-imposed punishment) is that our duty to seek retributive justice obliges us to create such a system. But if retribution is "merely" a good rather than a duty, there is no such obligation. Many things are good (e.g., health, fine art, my friend Dave's fried chicken), but that doesn't mean the government is required to provide them all.

But, on the other hand, viewing retribution as a good rather than a duty also provides a means (otherwise missing, I think) of giving it a role as a real-world guide to policy. While the retribution-as-duty view offers a justificatory theory of punishment, it also (and for the same reasons) fails to provide a prescriptive theory of how to design and implement a criminal-justice system. It offers retribution as an ideal, but does not explain how working legal institutions are supposed to seek that ideal in a world where resource constraints and insufficient information make it impossible to impose retributive punishment on everyone who merits it. In the real world, we need to set law-enforcement priorities, and the retribution-as-duty view provides no clear criteria for doing so (or else provides criteria that seem clearly unworkable or silly).

In short, the retribution-as-duty view can support a moral theory, but not a legal system. Hence, being a lawyer rather than a philosopher (as is, perhaps, all too apparent to any philosophers who read my work), I support the perspective of "consequentialist retributivism."

Executing Retributivism, redux

I'm home now from the autumnal delights of Falls Village, CT only to be hobbled by terrible sniffles just before class begins this afternoon. Alas, I'm not the Canadian I once was. In any event, I meant to get this up on the blog last week, but better later than never. For the Eighth Amendment fans in the audience, I have recently put up a substantially revised and expanded version of my article, Executing Retributivism, up on SSRN (and forthcoming this spring). There's still a good bit more work to be done toward the end (not to mention editorial work below the line throughout), but I have tried to improve and clarify the argument that Panetti v. Quarterman, a case the SCT decided in 2007, has substantial implications for the constitutional regulation of both capital and non-capital punishments, implications that have not been sufficiently appreciated so far.

To be more clear about my intervention, I am not arguing that the holding in Panetti requires the end of capital punishment or the end of the warehousing of the mentally ill in prisons, to name just two. Rather, my claim is that the ratio decidendi of the decision should lead lower courts and defense lawyers to revisit the rationales currently used to justify some of these practices, which are, to say the least, problematic from a retributive perspective. As there is still time to revise in light of feedback, I'd be grateful for anyone's off-line thoughts.

I have also put up new drafts of some other works in progress: Retributive Damages; How Should Punitive Damages Work?; and Punishing Family Status (with Ethan and Jennifer Collins). The first and third pieces are close to finished (coming out in January and December respectively), but the second piece is still very early on and I'd be grateful for comments on the piece, which offers a sketch of how to redesign the architecture of punitive damages.

What do you call the little "(i)" and "(i)(i)" in a statute?

Apparently, "romanettes":

Monday's Supreme Court oral argument in United States v. Hayes (pdf) was dense with debate over rules of grammar and statutory interpretation, all aimed at figuring out what Congress meant when it passed a statute in 1996 that expanded the scope of a law that makes it a crime for those convicted of felonies to possess a firearm. Just how far the new law went to include those convicted of domestic violence misdemeanors was the subject of the day, and by the end of the hour it was harder to predict the outcome than it was at the beginning.

One bright spot in the colloquy came during Assistant to the Solicitor General Nicole Saharsky's defense of an expansive view of the law. In discussing the statute at issue, 18 U.S.C. 922 (a)(33)(A)(i) and (ii), justices had been referring, awkwardly, to sections "little eye" and "little eye eye." But Saharsky had a far better way. She called them "Romanette one and two," using an obscure but self-explaining and almost whimsical term for a lower-case Roman numeral.

"Romanette?" asked Chief Justice John Roberts quizzically.

"Oh, little Roman numeral," Saharsky replied offhandedly.

"I've never heard that before!" said Roberts. "That's ... Romanette."

In all his days in the solicitor general's office and in private practice, Roberts had apparently never run across the term. The audience laughed -- including many, to be sure, who had never heard the word before themselves. Chief justices, along with everyone else, can learn something new every day.

H/T:  Patrick Sellers, a former Legislation student

Criminal Justice and Family Ties in Action

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, the book I'm doing with Ethan and Jennifer Collins, the central questions we ask are what role does and should a defendant's family status play in the criminal justice system. Despite a wide array of family ties benefits and burdens, where defendants are treated differently on account of their family ties and responsibilities, we are more often than not quite skeptical about the use of family status itself as a basis for distributing these benefits and burdens. Through the course of our research, we've become perennially interested in the various ways family interests intersect with those of the criminal justice system.

Today, thanks to the indispensable Doug Berman, I just came across US v. Woods, this fascinating 5th Cir opinion vacating a supervised release condition (SRC) imposed by the district court on a defendant prohibiting her from living with persons she was not married to or related to by blood. The district court's SRC is not a straightforward benefit or burden under our analytic framework. The defendant is appealing the SRC and so to her it's not a benefit -- although if the alternative were prison, perhaps she would view it as such. Thankfully, the appellate court realized that prison in this case is not the appropriate baseline to use.  (Nor is it an instance of punishing the defendant's family status; the defendant doesn't face a unique burden attributable to her family status, the way say, omissions liability attaches to spouses but not paramours.)

Despite the difficulty in categorizing this particular SRC as a family ties benefit or burden, I am heartened to see that the higher court realized why this SRC was not sufficiently narrowly tailored to achieve its underlying purpose. One of the primary normative goals we have in our project is to persuade courts and policymakers to move away from relying on family status when making decisions in the criminal justice system about benefits or burdens and instead examine a broad range of caregiving obligations. The lower court's reliance on "ceremonial marriage" and "blood" relationships to determine who can live with the defendant upon release is indicative of the regime we're seeking to overthrow in the law...and I'm very pleased to see we have allies on the Fifth Circuit in our endeavor.

Bleg for readers of Privilege or Punish

The book I'm working on with Ethan and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is ready in draft form, and we'd be very keen to find folks (with interests, if not competence in, in legal theory or crim, family, or con law) who may want to give the draft a read before November 15th. (All told it's about 100,000 words including footnotes.) There's a good bit of new material in there that would benefit from fresh eyes. The first half of the book involves a substantial retooling of our 2007 article, and we've drafted a meaty conclusion addressing, among other things, domestic violence. We've also tried to incorporate feedback from the wonderful responses Professors O'Hear and Hills did for the forthcoming mini-symposium on Punishing Family Status. If you think you'll have some time, let me know and I'll email you a copy; we'd be most grateful for any feedback at macro and micro-levels. Thanks.

Some links for Sunday

I've been submerged lately under a mound of deadlines and other tasks, but I thought I'd surface quickly to suggest a few pieces I came across that might be of interest.  First, in the context of academic freedom and the proper administration of university goals, I want to highlight two of Peter Berkowitz's recent pieces. The first is a review of Stanley Fish's new book on academic freedom, Save the World On Your Own Time. Peter's review is largely appreciative of the descriptive aspect of the book, but tart in its reception of Fish's prescriptive measures. The other piece by Peter looks at three lawsuits trying to hold universities accountable to their own procedures and practice-- Dartmouth's alumni controversy, Duke's lacrosse scandal fallout, and Princeton's donor-kebob problems. I suspect at least Paul and the Ricks might be interested in these issues.

Second, as the political season reaches its crescendo, lots of silliness continues. One beloved friend repeatedly invites me to the Facebook group, Joe Lieberman is a Shandeh (Yiddish for embarrassment). I doubt I'll join. I understand why people are upset with and disagree with Lieberman, but I don't understand why there's so little basic tolerance for people of opposing views--like another friend who threatens to defriend any known McCainiacs from her Facebook profile. (These aren't even academics, Rick!) The reason I mention Lieberman is that he's a useful juxtaposition for those Dems who now welcome Obama's embrace of Republican Senator Chuck Hagel. I don't suggest they're an identical comparison, but if you take a look at tomorrow's issue of the New Yorker, you'll see a long profile by Connie Bruck of Senator Chuck Hagel, who reports his bitterness about being exiled (or at least spiritually separated) from his fellow Republicans. Excerpts from the New Yorker PR person's summary after the jump. If you're a Dem who's upset with Lieberman for his "straying," ask yourself whether you'd be equally upset with Hagel if you were a Republican for his "maver-ickiness." My sense is that there's been a lot more grousing about Lieberman and the politics of betrayal. My view is that both are simply voyaging in conscience on what they regard as the main issue of our time, and so we'd all be better off respectfully disagreeing. It's rather sad when politics devolves to this:

Regarding disparaging comments that Vice-President Dick Cheney made about Hagel after the resolution, [Hagel's wife] says, “That’s O.K. We don’t breathe the same air as Cheney or Rove. We cancel social engagements if we look at the list and see that they’re on it.”

Last, on a less bilious note, here's a lovely and penetrating essay, Fear of Fun, on the struggles associated with growing up and mensching out by former Prawfs-guest, Jay Michaelson, which I just discovered last night despite its origins two years ago. (Description of the Hagel piece after the jump.)

Connie Bruck profiles Senator Chuck Hagel and explores his reluctance to support John McCain, despite their close personal relationship and mutual respect. McCain, Bruck writes, considered Hagel “among his closest friends in Congress. . . . Both were hard-driving, politically conservative, hot-tempered, and humorous. They had served in Vietnam and were known as independent thinkers, averse to Party orthodoxy.” Hagel was even a co-chair of McCain’s campaign for President in 2000. Yet, Bruck writes, “from 2004 on, McCain, in his desire to win the nomination, had embraced Bush’s policies ever more zealously, while Hagel had become the Administration’s most severe Republican critic. . . . In some ways, Hagel is far more of a maverick than McCain has ever been, and his endorsement would likely sway independents whose votes McCain probably needs in order to win.” In early June, McCain and Hagel met in Hagel’s office on Capitol Hill. They discussed their disagreements on the Iraq war and engagement with Iran, and Hagel warned McCain about waging the kind of vicious campaign that had defeated McCain in 2000. Bruck writes that “after the meeting . . . any possibility that he might endorse McCain seemed to disappear.” Hagel says that he’s been “very disappointed” by McCain’s campaign. “He gave one unifying speech and then has spent fifty million dollars to destroy his opponent.” Hagel tells Bruck that the rift between him and McCain is deeper than their differing views on the Iraq war. “In good conscience, I could not enthusiastically—honestly—go out and endorse him and support him when we so fundamentally disagree on the future course of our foreign policy and our role in the world.” He laments that the war in Iraq and the Bush Administration’s surge strategy, which McCain has championed, have “consumed our capacity to deal with anything else in the world,” including the region along the Afghanistan-Pakistan border that is “the biggest threat to our security and the world’s security.” Hagel insists that “whether we like it or not, there will be no peace or stability in the Middle East without Iran’s participation.” Of McCain’s plan to establish a League of Democracies, he says, “In order to solve problems, you’ve got to have all the players at the table,” his voice rising. “How are you going to fix the problems in Pakistan, Afghanistan—the problems we’ve got with poverty, proliferation, terrorism, wars—when the largest segments of society in the world today are not at the table?” Similarly, he tells Bruck that McCain’s repeated calls to expel Russia from the Group of Eight was one of the reasons that he could not endorse him. When Bruck asks Hagel if he would accept a post in a McCain Administration, he says that he has considered it, but “I don’t see John changing his position and direction and concept of the American role in the world, to adjust to mine.” He continues, “I’m not going to change mine to adjust to his. And I serve at the pleasure of the President. So it wouldn’t work.”

Hagel is retiring from the Senate this year, and according to several people close to him, Bruck writes, in the past few years he has “become increasingly discouraged by his inability to influence the Bush Administration and his Republican colleagues, particularly on Iraq-war policy.” Hagel tells Bruck that on the morning that the Senate Foreign Relations Committee debated the surge, as he listened to his colleagues discuss sending more troops to Iraq, he was struck by their “cavalier approach, as if it were an abstraction,” and thought, “Have we learned nothing in the last four years? And we’re now going to send thirty thousand more troops into this meat grinder? For what? . . .We were not a co-equal branch of government. We were just kind of this afterthought to the President, and whatever he tells us to do, we kind of docilely go along.” When the committee passed a resolution, sponsored by Hagel and Joe Biden, opposing the escalation, Hagel says, “I was called a ‘traitor,’ and I was called ‘disgusting’ ” by his Republican colleagues. “His position in that caucus has been a little like a skunk at a garden party,” Hagel’s wife, Lilibet, tells Bruck. Regarding disparaging comments that Vice-President Dick Cheney made about Hagel after the resolution, she says, “That’s O.K. We don’t breathe the same air as Cheney or Rove. We cancel social engagements if we look at the list and see that they’re on it.” Lilibet tells Bruck that Hagel came back from his recent trip to Afghanistan and Iraq with Barack Obama and Jack Reed “in a better mood than he did from most other CODELs [congressional delegation trips]. It was so great for him to be with two guys who appreciate him, listen to him.”

Globalization and Global Governance

In response to my post from earlier, Rob Howse referred me to his review article -- The End of the Globalization Debate: A Review Essay -- published earlier this year in the Harvard Law Review.  It's nicely written, insightful,  and well-worth the read.

In the article, Rob describes how both the traditional political right and left have come to embrace globalization -- neither side argues any longer that the territorial nation-state should remain the "locus of control over economic activity" or "should retain a monopoly on legitimate governance."  Rob explains how the once antiglobalization movement, which saw globalization (and the pro-free market forces with which it was identified) as undermining progressive values, itself began to embrace global law and policymaking as a way to advance those same progressive causes.  In Rob's words, everything has gone global.

As a descriptive matter, Rob seems correct that the globalization debate is largely over.  The concept of the nation-state as the sole operator and source of authority in the international sphere has long been inaccurate (if it ever was).  The state, as Rob notes, has been reshaped, remade and reordered as a result of the worldwide expansion of commerce, communications, crime, and human rights, among other things.   If the point is that globalization is here to stay with us, it seems correct.  The question is: what next? This, as Rob highlights at the very end of his review, is the issue of global governance and global justice. It is where much of the cutting-edge legal scholarship in this area is being written.  No longer is the debate over the benefits of globalization itself.

My concern is the path that the global governance debate is taking in the face of, and in response to, a globalized world.  Because economic and social globalization has outpaced political globalization, international actors are feverishly trying to figure out how to address global problems using traditional forms, and not so traditional forms, of governance.  The political left in the United States, disappointed with the speed with which international treaties and institutions have developed, increasingly turn to U.S. domestic laws as a way to promote its American version of environmental and human rights, and otherwise advance its progressive causes.  The political right has the same preoccupation with U.S. domestic laws as a method for promoting economic liberalization.  At the same time, the political right is nervous of non-economic international law, because that law was often developed by liberal elites as part of the international human rights and environmental rights movement.  The right, while largely supportive of economic globalization, is increasingly vocal in its condemnation of international law (a good example, is the spirited debate -- now a few years old -- over the use of international and foreign law in U.S. constitutional decisions).  Academics have supported these domestic law approaches, believing that if state boundaries are no longer as important as a descriptive matter, then domestic law can fill the gaps.  Unilateral actions become necessary, the argument goes, to solve pressing global problems.  Rob's comment to my post yesterday appears sympathetic to this approach, as he asks what's so absurd about U.S. domestic laws regulating the conduct of foreigners abroad?

Yet the global governance debate seems undermined by myopia -- with activists and academics alike focusing on the short-term, and ignoring the long-term.  Over time, the American political left, which promotes a particular brand of human and environmental rights (a kind I happen to like), is ill-served by unilateral domestic actions.  Global governance based on unilateral action by individual groups or states is apt to be fragile and unlikely to lead to a realization and sustaining of those global values which the left values most (Nico Krisch has done some interesting work in this area in connection with theories of hegemonic decline).  The same problem exists for the right.  All too concerned that non-economic international law serves the goals of the left, political conservatives have turned away from a meaningful discussion of creating robust global institutions, and have sought to all too often rely on domestic laws to solve global challenges.

To my mind, neither group ultimately is served by global justice that translates as an anarchic free-for-all of domestic regulation -- be it economic laws or non-economic laws (e.g., ATS claims). Nevertheless, this approach seems often encouraged inadvertently by modern international legal scholars, many who embrace transnational networks, dialogue, and legal process, when they move beyond the descriptive (what's happening with globalization) to the normative (how should global governance be structured).  It's also often evident in scholarship promoting alien tort statute claims, as well as academics who argue for vigorous extraterritorial enforcement of economic laws.

My belief -- albeit admittedly currently unfashionable and seen, by some, as quaint -- is that both groups are better served if traditional international law, based in large part on concepts of territorial sovereignty, remains the preferred method of developing global governance.  That is not to ignore globalization.  It is to say that in a globalized world, the territorial nation-state remains important not as a way to stop globalization, but as a way to govern it in a productive way.  From a American-perspective, international law continues to allow the United States to promote and project its particular brand of human rights, as well as its embrace of free-markets and trade.  I suspect that those who try to regulate global politics through "exhilirat[ing] new possibilit[ies] of connectedness and human flourishing" will ultimately be disappointed.

In short, to the extent valuing traditional forms of international law (treaties) as a way to constrain state excesses and promote American style values means "marching in favor of states" -- I'm happy to march.

 

Free Sage Journals and Shanske on Aristotle's Doctrine of Equity

It seems that Sage is running a good deal this October:  Register here and then you get tons of free access to its journals for the rest of the month.  Once you do that, you'll be able to download Darien Shanske's "Revitalizing Aristotle's Doctrine of Equity" from the current issue of Law, Culture, & the Humanities.  Here's the abstract:

This article argues for the contemporary relevance of Aristotle's doctrine of equity. Too often, similar arguments make this doctrine relevant by abstracting from the details of Aristotle's position or, conversely, fixating on details without due consideration of the epochal gap that separates us from Aristotle. After an initial survey of these limited approaches, the article proceeds to a more adequate account of Aristotle's doctrine of equity with the help of Heidegger. In particular, what Heidegger offers is a nuanced argument as to why Aristotle's manifest absorption in the concrete details of his face-to-face society is not a limitation to his doctrine, but a strength. We, no less than Aristotle, are enmeshed in logos, in a background ordering not at the command of our will, but we have a greater difficulty seeing this. Thus, where equity for Aristotle above all required expert engagement with logos, equity bids us first to acknowledge that the logos is.

I'm pretty much for anything that can be clarified with the help of Heidegger.  I also believe it is my duty to promote the scholarship of all colleagues who have served as a babysitter for me in my youth.

McCain's Citizenship Under Scrutiny

Over at Michigan Law Review's First Impressions, there is now a symposium on Jack Chin's article about McCain -- and whether he can constitutionally run for POTUS -- available here (pdf of the entire symposium). Respondents include Stephen E. Sachs, Larry Solum, Dan Tokaji, and Peter Spiro. What a great lineup! With some luck, we'll be able to get Jack to weigh in here with a reply to these responses.

Jack's previously blogged about this issue here at Prawfs and Adam Liptak in the NYT covered the issue here.

Happy First Monday!

Chafetz on the VP

Josh Chafetz of Cornell has a useful discussion in TNR about the odd moment in last night's debate when both Biden and Palin revealed their lack of understanding about the constitutional status of the office they are seeking.

Executing Retributivism in real life?

Yesterday, I blogged about Executing Retributivism, a project I'm working on that discusses the communicative nature of retributive punishment. The article examines the untold implications of the Supreme Court's decision last year in Panetti v. Quarterman for Eighth Amendment review of capital and non-capital cases. In Panetti, the Court insisted that a defendant have rational understanding of why he is being punished before he can be executed. It's not enough, in other words, that the defendant be merely aware that he is being punished; he must rationally understand why he is being punished, and if he doesn't, he cannot be executed. As I argue in the piece, that rational understanding requirement seems to me to make sense only in light of a theory of punishment that seeks to preserve the opportunity for the defendant to internalize the values the state is effectuating through its imposition of punishment, and to evidence that internalization in response to the punishment. Thus there is a real tension, I argue, between a rational understanding requirement and the imposition of the death penalty; similarly, there are important implications for revisiting the current practice of warehousing the presently incompetent in prisons too.

Anyway, I mention this (again) because it seems relevant to the fascinating story in today's NYT about Willie Bosket, an offender who has been living in solitary confinement for over ten years in NY state prison. Bosket has killed and attacked people from a young age both in and outside of prison. Consequently, he's not scheduled to re-enter general population until 2046, unless the evaluations indicate that it's safe for others to be around him again. Given the tone of the story, it would seem that Willie's beaten his demons for the most part, but he still acknowledges that there's a risk he might pose to others. What I found especially interesting are his apparent remorse for what he's done while he's been in solitary confinement and his claim that he'd rather die at the hands of lethal injection than spend more time in the "hell" he's living. Putting aside the harshness of his current conditions, and whether they are appropriately visited upon Bosket, it seems to me that the internal struggle Bosket undergoes on a daily basis is precisely the reason why the death penalty is anti-communicative and why internalization and the opportunity to evidence that internalization day by day is the better retributive strategy to communicate the state's reprobation of the defendant's wrongdoing. The Bosket story also raises a cluster of other issues--definitely worth a read.

Random Updates on Punitive Damages, Eighth Amendment and Family/Criminal Law Work

Hope everyone had a good weekend following the Wall Street crisis and the Noles game. I spent most of my time the last few days revising my draft of Retributive Damages, which I've just uploaded to SSRN over here. As I've mentioned before, this paper is the first in a series of three papers proposing a new way to think about punitive damages. The first one is coming out this January in Cornell Law Review, and the draft on SSRN reflects some of the edits I've received from the first round of editing there.  The sequel to that paper, How Should Punitive Damages Work?, is coming out later in the spring in the Penn L. Review. I'll be presenting the sequel paper this Friday afternoon at the Canadian Law and Economics Association in Toronto (and I hope local Prawfs readers will get in touch with me there; I'll be hanging out with Dave Hoffman and Erik Knutsen). With some luck, there will be some discussion of that sequel paper in Penn's excellent online companion, Pennumbra. (Please let me know if you're interested in participating.) In the next few months, I am also hoping to get the third part of the trilogy ready for the spring submission cycle, tentatively titled, Punitive Damages and Complex Litigation, and a book proposal unifying these ideas in a project called Fixing Punitive Damages.

I've also put up a lightly revised draft of Executing Retributivism, a paper I mentioned a few weeks ago about the implications of the Supreme Court's decision in Panetti v. Quarterman for Eighth Amendment review of cases involving both capital and non-capital punishments. I'm pleased to say that the piece will come out as an article in Northwestern U. Law Review in the late spring. In the next few months, I plan on growing the arguments in Part IV.A of the paper (about the implications of "negative retributivism" for non-capital punishment), which right now, are largely allusive in nature. I'll be presenting a version of this paper at Amherst College at an Austin Sarat-fest in a couple weeks and then revising it in light of comments around early to mid October. As a result, I'll be especially grateful for any comments that roll in prior to October 12. Also, Northwestern has an outstanding online companion, Colloquy, which sometimes publishes in both the print volume and online those responses to articles in the print volume. So if you're interested in participating in a Panetti-inspired forum, let me know.

Last, Ethan, Jennifer Collins and I are in the home stretch of getting our book manuscript together for Oxford University Press. The book is called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. If you have the time and inclination to read it in draft, we'd be very grateful for your comments; we'll probably have a draft to circulate in the next week or so. The book is scheduled to appear in the early spring of 2009, and draws on but revises much of the work we've done here (our Illinois piece) and here (our BU piece forthcoming this December). The BU piece, Punishing Family Status, is the subject of a mini-symposium with wonderful and provocative responses by Rick Hills and Michael O'Hear. Michael's response is available in draft here. Our draft reply, Voluntarism, Vulnerability and Criminal Law, is available here. Come 2009, keep your eyes open for a Privilege or Punish Roundtable coming to you. We'll have a great group of people to talk about the book and its themes at Law and Society in Denver (tentatively Naomi Cahn from GW, Elizabeth Scott from Columbia, and Melissa Murray from Boalt) and at SEALS in August (tentatively Alafair Burke from Hofstra, Jack Chin from Arizona, Alice Ristroph from Seton Hall, and Bob Weisberg from Stanford).

Philosophers and Family Values: “Repro-normativity” as a contested norm in academia

This summer, I had the pleasure of writing a response to Punishing Family Status by Jennifer Collins, Ethan Leib, and Dan Markel (appearing soon in BU Law review with a reply). In the course of our e-mailing back and forth, “Coleibkel” introduced me to the exquisitely bizarre neologism, “repronormativity,” which apparently denotes the belief that the raising of children is normatively desirable. Discovering that I have repronormative beliefs was like Monsieur Jourdain’s discovery that he had been speaking prose all of his life without knowing it. Repronormativity, like "bionormativity" or “cognonormativity” (my own neologisms signifying the belief in the intrinsic value of life or consciousness, respectively) seemed too obvious to worthy of a special term. Assuming that you positively value your own life, you ought to acknowledge that conferring life on others confers something of value. (And, if you do not value your life, you really ought to kill yourself to leave more room for the rest of us). Alternatively, if you regard value as the result of human choice (i.e., each person legitimately values whatever they happen to choose), then conferring life on someone is a good turn, because a human cannot make choices, even the choice of suicide, unless he or she exists. Conferring existence on others, then, is objectively good whether one’s master value is autonomy or welfare, because more humans means (ceteris paribus, of course) more autonomy and more welfare.

So, of course, I’m “repronormative”: Who isn’t?

A lot of academics, it turns out. Going back at least to Jan Narveson, Utilitarianism and New Generations, 76 Mind 62 (1967), there is a rich array of philosophical arguments that one confers no benefit on a person by causing them to exist. (David Velleman, a fellow NYU prof, has recently offered such an argument in "The Gift of Life"). Just for the record, I tend to take the different view defended by Derek Parfit in Reasons and Persons 487-90 (1984): In nutshell, Parfit’s argument rests on a claim of symmetry: If it is reasonable to believe that one harms someone by causing them to cease to exist, then it is equally reasonable to believe that one confers a benefit on someone by causing them to exist.

I do not wish to rehearse any of these arguments. Instead, I wish only to note that certain philosophers’ embrace of Narveson’s position smacks of misanthropy rather than reasoned argument. But here’s the good news: This misanthropy undermines both their credibility and their place in the gene pool. As I dislike misanthropes, I find both of these consequences to be comforting, as I shall explain in more detail after the jump.

Is there something misanthropic about adopting the premise that conferring existence confers no benefit? I distinguish misanthropy from the acceptance of unpleasant conclusions by the strength of the premise that implies the conclusion. Of course, if an indisputable premise leads to a disheartening conclusion, then it is our philosophical duty to accept the latter. But philosophers frequently display a willingness to deduce inhumane consequences from a dubious premise, when the decently humane response is to scrap the premise for the sake of humanity. In such a case, one suspects that the premise is the pretext rather than the reason for their baleful deductions: They like being gloomy because it gives them a certain tough-minded cachet to distinguish themselves from the laity. But this is like a captain’s insisting on going down with his ship even when there is plenty of room in the life raft, just because the captain cannot bear to sit in the same boat with the passengers from steerage. This is not principled intellectual rigor; it is ordinary snobbery.

It seems to me – an admitted philosophical amateur – that it is eminently debatable whether one benefits a person by causing them to exist. (Read Parfit’s Appendix G if you do not believe me). I am not sure whether such a premise leads ineluctably to any repugnantly pessimistic conclusion. But suppose that it did: Suppose, for instance, that, if one accepted the premise that it is no benefit to be born, then it would follow that we’d have no reason to prefer a future universe inhabited by humans over a universe devoid of any intelligent life whatsoever. The intuition behind such an inference is that, if those future humans do not exist now, then they’d have no interest in coming to be. Why take the trouble of creating them, an effort that will lead to at least some suffering on their part? As one Herman Vetter observed in Mind:

“[P]eople should be discouraged from having children. If such tendencies are successful enough, the number of men on earth may begin to decrease, and if such development continues long enough, the human race will disappear. This, however, would not at all be a deplorable consequence in… my own opinion: the existence of mankind is not a value in itself. On the contrary, if mankind ceases to exist, all suffering is extinguished perfectly, which no other human endeavour will be able to bring about. On the other hand, of course, all happy experiences of men will disappear. But this … would not be deplorable, because no human subject would exist which would be deprived of the happy experiences.”

80 Mind 301, 303 (1971). A South African philosopher, David Benetar, later extended this pleasant rumination into an entire book with the cheery title, “Better Never to Have Been,” in which he argues that humanity’s non-existence is a positive good.

Such nihilism (a term that here refers not to having no values but rather the valuing of nothingness over existence) is, of course, insane despite – or perhaps because of -- its logical consistency. (Insane people are notoriously consistent: The man who thinks that he is a teapot usually has a watertight account to rebut his critics). The sane response to a nihilistic conclusion is to jettison any disputable premise that leads to the nihilism, on reductio ad absurdum grounds. As I observed above, the premise that we do not benefit those to whom we give life is, at best, debatable. The philosophers’ willingness to stand by debatable premise, therefore, is best explained as a psychological dysfunction rather than philosophical courage or, perhaps, insincere posing. The nihilism is not the consequence of an argument; the argument is just a pretext for a showy display of a chic sort of pessimism.

But here is the good news: To avoid the charge of hypocrisy, David Benetar, Herman Vetter, and their fellow travelers presumably are not having any kids to whom they could convey their views or moods. Their arguments, likewise, are not likely to generate a lot of followers, being largely the result (I suspect) of snob appeal rather than intellectual rigor. By outlining the logical consequences of embracing the premise that conferring existence is no benefit, these philosophers have inadvertently provided an argument reductio ad absurdum in favor of repronormativity. For that service, we repronomativists ought to be suitably grateful.