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Some Must Reads from the Mich LR Books Issue

I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more. 

Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.

The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.

And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course.  For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.

Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.  

In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces. 

Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?).  Enjoy!

Reforming the Pardon Attorney Office: Some Preliminary Thoughts

I'm home now, after a few days in NYC last week, where Eric Johnson (Illinois) and Rachel Barkow (NYU) presented drafts at the crim law theory colloquium. Rachel's cool paper lays out the case for moving control over federal prison, foresenics and clemency policy outside of the DOJ. You can find an early draft on SSRN and I think it's coming out later this year in Va L Rev. The discussion with others about Rachel's paper got me thinking again about the federal pardon office in particular and whether (or how) governments should dispense mercy. Because of the recent NYT editorial on clemency reform, there are a number of folks and organizations urgently interested in reform of the Office of the Pardon Attorney. This is in part because Obama's record on distributing pardons is especially low when compared to other recent presidents. (Rachel's paper provides data on that; former pardon attorney Margy Love has been a one-woman crusader on that front too.) Unlike Rachel or Margy, I won't say Obama's record low number of pardons is necessarily stingy. That conclusion presupposes too much to reach that assessment, though I can imagine I might reach the same conclusion if I had the time to review all the petitions myself.

And that goes to my main point. It seems to me that if we're going to have reform of the Pardon Attorney's office, one thing we should try to do is unpack the reasons for clemency to better facilitate understanding and democratic accountability. Often the word clemency is used in broad-brushed ways, and by using it without care or precision, we lose the opportunity to move the conversation forward in useful ways. Accordingly, if we are going to reform the Pardon Attorney's office, and if states are interested in similar developments, then we should at least do our best to shape sites for clemency in ways that are honest even if they are not meant to do (only) justice.

Specifically, clemency sites like the executive pardon can be used to advance justice in its retributive texture. These are the easier cases for clemency and they arise when executive branch officials have substantial doubts about the accuracy of the conviction now, or perhaps because they believe the punishment is too severe (in relation to the offender's moral or legal desert). When officials are faced with classic Type I errors, these clemency sites are attractive and necessary because of the way in which they can be used to reduce or correct such errors--and they are especially attractive when decisions are subjected to some kind of deferential review--as I have argued.

In addition to promoting justice and correcting injustices, clemency sites like the Pardon Attorney could also be used to advance mercy, understood as I roughly defined it once (somewhat controversially), as leniency motivated by compassion, redemption, grace, caprice or bias. Thus, when pardons are bestowed because of a person's post-conviction heroic deeds, or because Christmas is coming, or because the offender has come to Jesus, or because the person's family is close to the President, then such dispensations of leniency should be identified as mercy with particular explanations offered for the leniency.* Here, the decision is made to extend leniency independent of its putative benefits toward crime control.

Finally, clemency sites such as the Pardon Power could also be used to advance straightforward policy goals regarding individual prevention and crime control. On this view, pardons are a way to address and scale back punishments that are unnecessary with respect to the threats posed by particular offenders. Perhaps this offender is no longer a sex offender threat because he has voluntarily sought chemical castration and otherwise completed all treatments; perhaps that violent offender has become an invalid through an accident he suffered while in prison. With this goal of individual prevention in mind, the Pardon Attorney could be used as a space (especially in a world without parole) to re-assess threats of dangerousness that earlier motivated officials to apply a custodial or otherwise onerous sanction that is no longer required from a social self-defense perspective.

Again, I'm not saying I necessarily endorse or oppose all pardons that are merciful or prospectively utilitarian from an individual prevention perspective, but I know that others are attracted to those kinds of pardons. It seems to me that if we're going to have a pardon attorney perform any role related to remitting punishments, it would be a good idea if we could determine which box the President thought a particular offender's petition for clemency belonged in, and why. I doubt that too many people make their ultimate decisions about who to support politically based on who receives clemency and why, but if we do think the Office of the Pardon Attorney has fallen into unjustified dis-use, it might be because such decision-making has in the past been inadequately sorted and scrutinized. Justice, mercy, and prospective utility would be a first pass attempt at trying to get the Pardon attorney, and offices like it at the state level, to think more sure-footedly about what they are doing and why.

*My published and probably still current view is that leniency motivated by any of these mercy reasons are all problematic even if not equally so from the perspective of retributive justice or liberalism properly understood. But my own view on this doesn't matter for the limited purposes of trying to come up with reforms of the Pardon attorney. I understand that not everyone is a retributivist or even a liberal and that some folks want the law to have spaces for interstitial discretion that redounds to the benefit of defendants--even if those benefits cannot be justified on their own feet but rather in service to some other good such as the desire to simply have less punishment. 

Encroachment on Presumption of Innocence? DNA evidence from arrestees

Adam Liptak's got a short piece in today's paper reporting on relief the Chief Justice is granting (qua circuit justice) to Maryland so that it can continue to collect DNA evidence from arrestees (of certain crimes). I love clearing cases and reduction of Type II errors probably more than the next guy but I have a sense this is yet another abuse of the presumption of innocence. In the piece, Liptak quotes the Maryland judge who thinks this intrusion can be justified b/c it's less intrusive than the searches recently upheld in Florence.

I'll have to think some more about it, but collecting DNA from arrestees seems quite different than the strip searches purportedly justified in Florence, that recent SCT case about strip searches prior to entry to jail. The latter can be understood (if not fully justified) as a preventive measure for contraband and dangerous weapons prior to immersion in a detention facility. The former is purely for solving cases. As a result, the former is likely not consistent with the kinds of purposes vouchsafed by the Court in Salerno as appropriate bases to limit pre-trial liberties. The latter is arguably tied to the reduction of criminality or risk to public safety of one sort or another.  CJ Roberts thinks there's a good chance that the Maryland high court's decision (in favor of the defendant challenger) will be overturned. I'm a good bit less certain and thus somewhat surprised by the relief Roberts gave to the enforcement officials here. This will be interesting to follow.

Just the FACs: Fan Action Committees and Fan Support

Dan and I have an op-ed that just posted at The Atlantic, introducing the concept of "Fan Action Committees." The sports counterpart to PACs, these are vehicles for fans to pool money to give to star players (or donate to the player's favored charitable causes) to induce them to join or remain with a favored team. We take a particular focus on last week's Jeremy Lin/New York Knicks saga.

This presents the germ of an idea that we hope (along with sports law guru Mike McCann of Vermont) to expand into a longer essay. Comments welcome and encouraged. Thanks to Mike, Gregg Polsky (UNC), and Brian Galle (BC) for their comments.

Quintessentially American: Suing the Lethal Presidency

I've been a bit frothy over at FB and here lately about the secret source or explanation of law that ostensibly authorizes Obama to kill citizens abroad without any familiar signals of due process. Charlie Savage has some news about new lawsuits that pick up on the related themes advanced in the important reportage/polemic by Tom Junod in Esquire. And along the same vein, via SSRN today, I came across a new student note from Vandy LR about the due process issues facing the killing of citizens without notice or hearing. I haven't read it yet, but you'll dimly recall, perhaps, that I raised similar concerns the other day, to the effect that the knock list ought, in most cases not involving dire imminence or immediacy, not be operationalized until an American citizen on foreign ground's been given adequate notice and a chance to surrender and have a hearing of some sort with counsel. If the person turns down the opportunity, then the strike might be permissible under various conditions establishing some form of treason or calamitous danger.

In any event, the Junod piece and his Esquire blog posts, which are just outstanding, raise great questions for our fellow law profs. It might be unfair to ask David Barron and Marty Lederman by name what they think about this, since they purportedly had a hand in this policy's development and justification (I think I read that somewhere but if I'm wrong, let me know and I'll fix it). But anyone, please: what's the justification for keeping secret the memos detailing the President's authority to execute a knock list that provides no notice or hearing for citizens? And if Al-Awlaki's son was really just collateral damage, then what's the danger to saying so afterward, as Junod recommends? At the very least: let us have the chance to be persuaded to this aggressive point of view.  At this point, I can't see how one can (on legal grounds) disagree with the ACLU's Jameel Jaffer (also a friend from law school), who explained to Junod why the ACLU is representing the American family of Al-Awlaki in the damages suit against Obama's officials:

"The main reason we're bringing the case," Jaffer continued, "is to get some kind of accountability, in     the most basic sense of the word. The government has killed three of its citizens and we think the     government has to account for its actions, first to acknowledge, then to explain. We believe that if you     accept that the government has the authority to kill its own citizens without acknowledging its actions,     you have set up an authority that will one day be abused. Once you create this power, this power will     sit around available to every single future president.

That's the long game I'm most worried about. It's somewhat easy to think Obama won't grossly abuse this power from my perspective. (It's hard to think the power wasn't misused vis-a-vis the 16 year old, however.) But what if Sarah Palin were freakin' President? Also, in case you missed it, Junod reported on an interesting conversation he had recently with an unnamed official intimate with the counter-terrorism procedures. According to that conversation, the justification for silence had to do with preserving diplomatic and security cooperation with other nations--the requirement of non-acknowledgment. If that's the operating rationale, we need to know more about it so it can be scrutinized. Ok, daily froth is over, for now.

 

 

The Sisk Study is Up -- and a call for inclusion

Over at Brian's blog, you can see some observations on the nature and genesis of the new Sisk et al Study on per capita scholarly impact, which I've appended here for your viewing pleasure. Feel free to go to SSRN and throw them a bone for their hard work.  Brian has no discussion board to chat about the Sisk study, so I thought we could have a fruitful discussion here. As with most rankings, I think they need to be kept in context and not overweighted but also not underweighted simply because they don't measure what you most think is important. Sisk et al are right to emphasize how reputation studies for USNews tend to be a bit of an echo chamber and that studies like this one, which, you know, actually measure something, are a useful supplement to folks interested in trying to figure out the quality and impact a faculty is making in terms of scholarship. Again, it's not everything one should look at, but it's something.

My biggest gripe: while I understand the desire (particularly for Sisk and his institution) to limit the study to the top 70 or so, it seems a shame that there aren't resources available to get the info from and vet *all* the law schools. I have the same frustration with that other wonderful (but admittedly limited) study, the Yelnosky productivity one. For reasons that are either self-serving or that escape me, the Yelnosky study excludes the top 50 schools from study, except for those that happen to be in the New England area. Hmm.  I don't like to be snarky about this, but let's face it, inasmuch as the rankings are useful, they are sort of like a public good that is under-produced. (Yes, I'm getting ready for econ camp next week!) St. Thomas and Roger Williams are only investing in the creation of the rankings to the point they find useful (the private good), even though more information about more schools would benefit a larger group of schools or individuals (whether faculty or students. I suppose -- given that St Thomas did so well (coming at #30) -- we should be grateful that they didn't limit the number of schools to the top 40, but in fact studied almost 100 schools. Good on them.

Anyway, share your thoughts or data in the comments.  From what I can tell, the data and the methodology is transparent, so if there are associate deans or other interested faculty and law librarians out there reading this blog, feel free to do your self-study and share the info in the comments to this thread. Perhaps in future years, we can persuade St. Thomas and Roger Williams to expand the number of schools under consideration.

 

 

 

Follow up on Pretrial Release Conditions

I've rec'd some interesting emails in response to the oped/post from yesterday on abusive pretrial release conditions.

Bryan Dearinger wrote to let me know of a paper he wrote about how Congress, in the context of sex offenders, has stripped away the judicial discretion to fashion appropriate release conditions. The paper notes that "a particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing." The paper is forthcoming. I haven't read it yet and in truth I didn't know about these provisions until Bryan mentioned them to me.  I have to say, I'm intrigued by but not persuaded yet by Congress' approach here. As a general matter, I like judges to be given guideposts and constraints, but I wouldn't say that a mandatory imposition of legislatively concocted conditions is the smartest approach unless there were various procedural safeguards in place along with some kind of check in place to ensure that the government's intrusions were minimally reasonable. Anyway, I look forward to reading Bryan's paper.

I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can't speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren't saying such restrictions on alcohol or curfew or drug treatmen were never reasonably imposed. Rather we were concerned that they sometimes aren't related to the crimes or the offenders but were still imposed.

To use one example that is in the news: George Zimmerman. His claim of self-defense in the killing of Travyon Martin may be wrong or correct. But his shooting of Martin had little to do with alcohol abuse and there's no reason to think that Zimmerman is specifically more likely to commit more crimes if he has access to any alcohol or if he's able to eat dinner at a restaurant or shop for groceries after 6pm.  The imposition of a curfew or alcohol restriction on him is entirely unnecessary in terms of how it facilitates substantial reduction in flight risk or crime prevention. Indeed Judge Lester's court order specifically states that he doesn't think Zimmerman's a risk to public safety. So that leaves flight risk, and there's no connection to flight risks from curfews or a glass of hooch. (I suppose if the thinking is that lots of alcohol might lead GZ to think it's a good idea to flea, but then Judge Lester should simply prohibit more than 2 drinks within X hours in the day.)

Obviously, if a defendant has a history of drug- or alcohol-fueled or related crimes, then restricting his access to such substances is more easily explained in terms of crime prevention or risk to public safety. I wouldn't have a problem with ensuring some kind of response to drugs or alcohol (treatment, testing, etc) in those contexts because of the putatively tight causal connection between the substance abuse and the various resulting crimes. But in Zimmerman's case, there was no established tie b/w alcohol abuse or a penchant for mayhem at night that would have required such restrictions.  As mentioned above, the judge stipulated that Zimmerman wasn't a risk to public safety. 

By the way, Zimmerman's counsel has now asked to have Judge Lester be disqualified from the case. The brief is here, and to my mind, has substantial weight. Curious for others' reactions on this. I doubt O'Mara, GZ's lawyer, would have asked to disqualify Lester unless he thought there was strong grounds to do so, since it's a pretty high-risk tactic otherwise.

Not yet tried, and sentenced to Red Lobster

Eric Miller (SLU) and I have an oped in today's NYT on the quiet scandal of abusive pretrial release conditions. I've reprinted it after the jump. This is a piece that grew out of a some discussion here on Prawfs, and the next thing you know, well, acorns and oak trees and all that. My special thanks to Eric for being such an excellent co-author. (And while I have SLU on the mind, note that Anders Walker, Eric's colleague, has started a new blog on faculty productivity. It's called Faculty Flow.)

Btw, we tried to insert hyperlinks to your scholarship (really, all of you!), but the Times has a rule about capping hyperlinks. Odd. (And my sense is that this rule is actually, um, inconsistently applied. In any event, sorry about that.)

IN May, a federal judge ordered the pretrial release of an alleged robber on the condition that he read and write book reports for 90 minutes daily. Earlier this year, a trial judge directed a domestic violence defendant, again as a condition of pretrial release, to buy his wife flowers and take her out for bowling and supper at Red Lobster. And just last week, in Florida, a county judge’s new bail order forbade George Zimmerman, who claims self-defense in the death of Trayvon Martin, to drink alcohol or go out after 6 p.m.

Of course, these orders are not themselves grave injustices, but they all raise similar and serious legal questions. They spotlight a pervasive phenomenon hiding in plain sight: the abuse of bail and other pretrial release powers for punitive and rehabilitative purposes.

Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence. That presumption is at odds with the kinds of pretrial conditions described above.

To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.

But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.

The more peculiar the conditions, the more likely they are to garner media attention and public scrutiny. Indeed, an appellate court overturned the book reports decision last month (though on the grounds that the defendant should not have been released at all). Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood. Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.

This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.

It’s understandable for judges to want to attack the social problems they see in the criminal justice system. The problem — besides the obvious issue of assigning punishments to people who might not even be convicted of crimes — is that they are thinking up untested responses on a case-by-case basis. This leads to disparities and fragmentation of penal policy even within jurisdictions; increased scrutiny of suspects at a stage when they should be free to build their defense against the government; and an imposition of the values of the temperance movement on the criminally accused (since even lawful and moderate consumption of alcohol is frequently prohibited). Perhaps most disconcerting is how easy it becomes for regular people to violate these unreasonable bail conditions, which leads to unnecessary arrests and even more overcrowded prisons.

Pretrial release raises complicated legal and policy issues in every case. Still, our core concern is that many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pretrial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.

Dan Markel is a law professor at Florida State University. Eric J. Miller is a law professor at St. Louis University.

 

A couple must-reads

Vaguely apropos the end of my last post, I want to point you to Marshall Poe's wonderful new essay in Inside Higher Ed, which explores the moral imperatives toward open-access university press publishing. I think Poe's right on the money.

Less relevant to us as academics but more relevant as persons interested in plain justice and the veneer of law, you've got to check out this very interesting blog post (and what will be a series of posts on Obama's lethal presidency) by Tom Junod over at Esquire's politics blog. Junod's blog discusses the killing of Al-Alwaki's American son by drone missile and its putative legality.

Some of you know I favor a strong forward lean on terrorists and this seemingly endless war with the Islamofascists. (And yes, there's a personal component to it, having lost my childhood best friend to a pipe bomb on a Tel Aviv beach back in 1990. Discount or consider accordingly.) Nonetheless, ever since Charlie Savage's clutch reporting in the NYT has made clear to us the scope of the problem, I have been very disappointed by the secret legal reasoning that Obama has relied upon to warrant his selection of targets and his authorization of the killing of those targets, even when they're American citizens. I love so much of this country, but the idea that there's a secret document propounded from within the Executive branch that explains the rationale for killing putatively innocent 16 year old American citizens is abhorrent to those of us who cherish rule of law values about a knowable and known source of law.

I hope that those reading this blog -- those who (also) consider themselves friends of the Obama regime, and those who are his devoted political opponents -- will continue to press for transparency and accountability in this respect. It's one thing to say to suspected American terrorists, you're on our knock list unless you surrender peacefully in the next 15 days, at which point you can receive due process. A more modest approach is Junod's prescription: an ex post accounting of any dead Americans killed abroad by the American government. But we apparently have no hope under the current administration for such weak but non-trivial procedural protections ex ante or for ex post oversight. Instead we have a different regime altogether, one where it's permissible to kill American children abroad without any such notice and safe opportunity to surrender, and on grounds that are inscrutable to all outside the White House. Shame shame.  Obama can do better, and we deserve better as a nation. Pass the sunlight, please. And Republicans, feel free to use this as fodder for your daily foolishness scrums with the Dems too, but remember, what's good for the goose is good for the gander.

 

Stolen Valor Act: Dumb but not sufficiently illiberal?

Most of y'all are probably browsing the 190 page monster of the Healthcare Cases, but I'm here to interrupt with some news about Alvarez, the stolen valor case. It's both a bit snoozy and breezy  -- except for the dissent, where Alito blithely smacks down an academic amicus brief from UCLA's Jonathan Varet. Aside from that brief episode of fireworks, and the somewhat surprising claim made by Alito that we have witnessed an "epidemic" of people falsely claiming military honors, the various opinions are, at first glance, well, bland. The majority, by Kennedy, is not especially persuasive at distinguishing Section 1001 federal crimes from what's at issue here. Neither statute requires any kind of harm, real or threatened. So if you want to throw out one, it seems you have to throw out the other. That seems kind of drastic; the government should probably be able to save itself the trouble of dishonest interlocutors. I'm not saying I would pass both those criminal laws, as drafted, myself. To my mind, the stolen valor statute is a dumb use of the criminal sanction, and legislators should have sought less drastic measures to advance their goals besides plopping more drivel in the Title 18 bucket. But even though it's dumb, it's permissibly dumb.

I don't find myself moved by the slippery slope problems the challengers to the statute make with respect to the kind of breathing room that true speech needs in terms of having some false speech protected. The fact that we all err on the road to truth in the market of ideas is largely irrelevant here because of the mens rea requirements. [Update: I should have thought more of the relevance of the satire issue, which I think is knowingly false speech that's still critical for long term health of democracy; I flag but ultimately disregard that as a useful but not on these facts applicable concern.] So, put aside the truthiness interest, and that leaves an autonomy interest to consider, presumably the sort that Varat was getting at in his amicus brief that Alito batted down. I get that. That interest seems worthwhile and important up to a point. But, as I tried to argue in Retributive Justice and the Demands of Democratic Citizenship, the autonomy interest with respect to criminal legislation has at least two dimensions: the negative one (the right to be let alone by the government) and the positive one (the right to engage in democratic self-government). 

To my mind, this statute was not so illiberal that it doesn't deserve (as a moral matter) to be allowed on the books. I suppose such sheepish support probably puts me with the dissenting 3 (certainly not my favorite company: CT, AS, and SA).  Not that anyone's asking but were I in a position to have upheld the statute, it would have been with much less rhetorical bombast. More references to Holmes and emphasis on the fragile asininity of democracy and less patriotism. But maybe I'm wrong. I'll need to think it over some more.

The Joy of Free, Redux

I have an op-ed in this week's Forward that largely rips off riffs on a blog post I had here a couple weeks ago. The piece has to do with why "free" is not obviously a terrible model to use (in the context of Jewish continuity and community-building efforts). 

Fixing the Constitution In Some Small Ways

Thanks to Howard for the tip-off below about the piece in Slate I did with Ethan on fixing the double jeopardy clause. I also did a similar piece today for the same forum with Eric Miller (SLU) about the bail clause. I continue to be lucky to have such fine co-authors.

Re: double jeopardy, I should add one point that we didn't much discuss in our short suggestion piece. Some might worry that allowing one juror to block a conviction would create too much incentive for corruption or too much likelihood for ideological peculiarity to drive the result. On the first point, we noted that if there is real evidence of corruption, then that would be sufficient to permit re-prosecution.  On the second point, this would be my response. In a world where double jeopardy protection meant something, I'd be worried about outliers too, and I'm guessing Ethan and I would have been open to allowing re-prosecution if there was a strong super-majority to convict. However, my sense is that, in light of the dual sovereign doctrine, as well as the very permissive Blockburger test, which most states have in determining whether a defendant can be tried based on crimes occuring in the same event or transaction, most states will be able to find a way to get a second bite at the apple if they really need it. The sad truth is, current federal constitutional double jeopardy protection is, as we said, anemic and will only be somewhat improved by the adoption of the rule we propose. 

How Bad is Free (for Jewish Continuity Purposes)?

N.B., this post is a bit, um, Jewy though it raises some larger issues that might be of interest to Prawfs readers.

Over at the Forward, there's an interesting oped by David Bryfman about the danger of giving various things away for free to facilitate Jewish continuity in an age of assimilation. The Birthright trips for young Jews to go to Israel for ten days are probably the best example. But there are numerous other ones that Jewish communities are experimenting with. Last night, my synagogue decided to make religion school for free to 3/4/5 year olds in the community in order to spur folks to prioritize attendance and participation. We also benefit from an excellent program called PJ Library, which sends a book or music cd to young Jewish children every month. I love this program--to be sure not every selection is a winner with my boys, but I'm thrilled that we have this here in Tallahassee. And I'm generally unopposed to the idea that patrons in a community would want to make participation in Jewish life relatively free for others to do.

But Bryfman sounds a cautionary note: is there a problem when people have no "skin" in the game?

Yes, I can see some of the possible downsides. But the problem with the oped is that it assumes (like too many economists?) that money is only one way of putting skin in the game.  To my mind, time, enthusiasm, and support are other moral currencies that people may pay in, and not necessarily immediately but backward and forward over the course of their lives. Especially for young families and young adults who are still figuring out how to shape their lives, and what role religious and cultural affiliation will play, I see the subsidization of experience and ritual and education as an important link in the chain. It might not succeed for everyone--of course, what does it mean to succeed? -- but it will for some. Indeed, I continue to think of my year working on religious pluralism and studying philosophy in Israel after college (sponsored by the Dorot Fellowship) as one of the great gifts I have received from Jewish institutional sources. I view that year as having been as critical to shaping my adult life as my college experience or the sum of my childhood parochial education. Would it were so that everyone who wanted to do that kind of extended immersive experience could do so without fear of going into debt or penury.

Bryfman's oped says that "free" might devalue the experience of the books or Israel, etc. There are at least three things worth thinking about in assessing this claim, none of which are really addressed by Bryfman. First, as alluded to above, there is the basic distributive justice aspect to think about: how many poor or middle-income folks are shut out from some aspects of communal life because of these costs that are being borne by donors? "Free" creates access as well as a solidarity benefit, much like social security. I'm not saying we should never question the model, but it might well be that we want to create a common vocabulary of experience and meaning across the income spectrum and some of these free goods are able to do that thanks to donors willing to make that happen for all.

Second, think about who are the primary beneficiaries of the books or the religion school or the Israel programs? It's primarily young people or kids who would not otherwise be paying for these things anyway. So to the primary audience, the connection between the "benefits" of having skin in the game and the resulting value would probably never have been established.  For those who would not normally be paying, the value has to be realized independent of the financial sourcing anyway.

Third, let's assume arguendo that Bryfman is right that "free" devalues the experience or value that might otherwise be associated with a non-free model. Even if the value of the Israel experience or the books or religion school is devalued (say its value goes from 100 to 50 for the sake of argument) --  it does not mean it has no value. At least I don't take Bryfman to be claiming that there is zero good resulting from free books and cd's to Jewish kids or Birthright trips. If there is some non-zero value to the community that arises (and let's set aside the difficult questions of what metrics we use to measure that value) from these programs, we still have reason to prefer these mechanisms for generating the value if we don't think there are other ways of doing so that are more effective or more efficient. And I find it hard to believe that the model of Jewish life that dominated over the last forty years (outside of Orthodox circles, which frequently used significant subsidization models) is the paragon of effectiveness.

So, if Bryfman wants us to "pause" before we embrace "free," fine. Everything we do as a community should be mindfully done. But the arguments and evidence for "reset" based on the putative downsides and dangers of "free" seem quite speculative and not particularly persuasive.

A few reading pointers for Tuesday morning

First, I want to point out an outstanding article I just read titled Election Law Behind a Veil of Ignorance. It's by Chad Flanders (SLU), a former co-author of mine. There's an early and differently titled draft up on SSRN. Admittedly it's outside my area of expertise, but I found its clarity and pointedness -- consisting in a gentle rebuke to/modification of Rick Hasen's celebrated revival of the Democracy Canon -- sharp and instructive. It's pretty short as law review articles go, and has lots to say about the relationship between statutory interpretation and democracy. 

Next, this morning's Times was brimming with some excellent pieces. I guess they didn't want them buried over the long weekend!

First, there's a long piece on Obama's central role in approving the knock list for who gets targeted. The assessment is something along the lines of: wow, who knew Democrats could be so ruthless in the forward lean on terrorists. The most interesting piece of news (from my perspective) is the tidbit from Romney's foreign policy advisor who is critical of Obama for not revealing the legal memo that purportedly justified the targeting and killing of an American citizen abroad, Anwar al-Awlaki. 

Mr. Hayden, the former C.I.A. director and now an adviser to Mr. Obama’s Republican challenger, Mr. Romney, commended the president’s aggressive counterterrorism record, which he said had a “Nixon to China” quality. But, he said, “secrecy has its costs” and Mr. Obama should open the strike strategy up to public scrutiny.

“This program rests on the personal legitimacy of the president, and that’s not sustainable,” Mr. Hayden said. “I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”

 

I agree with Hayden. The prospect  reality of an internal memo serving as a secret law--it's a real problem for rule of law values that both parties should vigorously support. Put simply, I'm bummed that the Administration hasn't saw fit to distribute the memo notwithstanding (or because of?) Charlie Savage's reportage on the substance of the memo. But, fwiw, if Republicans end up winning the White House (ack!), then I hope they follow Hayden's counsel, rather than rely on the "precedent" of Obama's secret laws...

Next,  Erica Goode has an awesome piece discussing the promise and perils of a relatively new and somewhat unknown " gunshot detection system called ShotSpotter [that pinpoints] the location of gunfire seconds after it occurs." Some critics of the system are worried about how the acoustic surveillance intrudes upon privacy interests, but the sensitivity of the system, which can pick up some conversations,  is meant to be triggered only after there's a gunshot. No doubt, this kind of sound amplification can be abused absent adequate controls. Still, the idea that this might reduce further the problems of Type II errors in relation to gun violence in cities is very seductive. Indeed, I wonder to what extent it might be used as a substitute (rather than just a supplement) for NYC's aggressive stop and frisk policies. Obviously, Shotspotter is an ex post measure whereas the stop and frisk policies are ex ante, but it might be the case that the use of Shotspotter would have a more effective ex ante preventive effect than the aggressive stop and frisk policies cops are using in NYC. My guess is that both will continue to be used -- to the extent the law allows. Relatedly, it'll be interesting to see if the lawsuit unfolding in Judge Sheindlin's court has much practical effect in curtailing the NYPD's off-the-record stop and frisk practices. Here's a link to J. Sheindlin's decision to certify the class at issue. 

Finally, take a look at Adam Liptak's Sidebar column on mandatory minimums in federal sentencing and then Sandy Levinson's oped laying the predicate about our imbecilic constitution for his new book about what we can learn from state constitutions. Classic Sandy: bracing and bright.

 

 

Reading Assignments as a Condition of Bail? Really?

Well, as Judge Vaughn Walker says, it might have something to do with the seat.

That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction  he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail.  This is my punishment."  (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)

Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.

The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly.  Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.

After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.

*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.).  By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.

 

The New Info re: Trayvon Martin and George Zimmerman

The latest batch of information shared by the government with the public and the defense continues to bode poorly for the prosecution, at least when held to a BRD standard for a murder charge.

1. The Times has posted a few audiotapes of interviews with witnesses of the encounter between Martin and Zimmerman. I'm on a deadline with something else, so I haven't gone through all of them yet, but at least one of them provides information to the effect that it corroborates Zimmerman's account that he was getting the stuffing beaten out of him by Martin prior to the shooting, and that Zimmerman had cried for help.

2. The article accompanying the audiotapes also reports that Martin's father told police that it was not Trayvon Martin who cried out for help on the 911 tapes. (Zimmerman's father said it was Zimmerman's voice, whereas Martin's mother had earlier said it was Martin). Audio specialists with the FBI apparently couldn't tell.

3. Traces of pot were found in Martin's body at the time of his death.

4. There's a picture of Zimmerman's bloodied head up also, which again, corroborates the story Zimmerman told and the report of the witness who saw Zimmerman getting beaten on the pavement.

None of this is to deny that there could still be a plausible case made for imperfect self-defense leading to something like a manslaughter conviction. (Indeed, one of the investigators had initially prepared a probable cause for manslaughter recommendation.) But taken together, these various pieces of information make it much less likely that a jury will find Zimmerman guilty of murder based on a beyond a reasonable doubt standard. Interestingly, if you read the NYT piece carefully, you won't really see any discussion of specific evidence bolstering the government's case discussed. (That's not to say it's not there in the discovery; just that the reporter had omitted to discuss anything).

A friend of mine who's a former prosecutor here in Florida, and now is a local defense lawyer, told me he thought that no charge would stick against Zimmerman. If the NYT piece is roughly accurate regarding the contents of the new information, I suspect the release of the new information won't do much to change his mind.

P.S. I just checked out the Orlando Sentinel coverage, which is a bit more extensive, and which again bodes poorly for the government.

5. The autopsy report reveals that the gun was fired touching Martin's clothes. Indeed, "Trayvon's autopsy showed that he died of a shot to the heart and that the gun was so close, it had left gunpowder burns on his skin." This too is consistent with Zimmerman's account. If in fact the gun was shot from further away, it would possibly cast doubt on the nature of the encounter.

6. There is no witness testimony or other evidence regarding who started the altercation.

 

 

The Selection of Charges in the Zimmerman case

I've been getting a bunch of media inquiries about the Zimmerman case, most of which ask me things far enough outside my expertise that I decline to help (a soft version of the Fallon amicus rule!). But I watched with surprise at the unfolding decision by state attorney Corey to file second degree murder against Zimmerman.  Corey is reputed to be a prosecutor who is both tough and possessing integrity. For all I know, she and her colleagues have all sorts of evidence that hasn't yet been leaked and that would support a murder charge beyond a reasonable doubt.

But if everything we've seen reported is true (and I'll assume this provides a useful summary), and there aren't other missing pieces of evidence, I cannot fathom how a jury would return a guilty verdict for murder. If that's right, what could justify bringing a murder charge? Certainly, the idea of charging high with the hope of inducing a plea could explain bringing a murder charge as a matter of tactics. But it would not be a justified basis for bringing a murder charge. To my mind, it would be repugnant to bring a high charge if the prosecutor herself does not readily believe in it, and if it is not readily provable beyond a reasonable doubt. Some jurisdictions or prosecutors' offices might say: this is complicated stuff, we have an adversary system, let the jury sort it out. That's a cop-out. Prosecutors are not partisans or advocates; they're agents of public justice. I have no special insight into Corey's evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice, and one that happens so frequently that it's become difficult to see in plain sight. 

Anyway, curious if anyone shared my surprise (I don't want to say disappointment b/c it requires evidence of facts that I don't have) at the murder charge?

P.S. I'm having trouble getting Typepad to allow me to comment on my own post, so after the jump, I'll respond to Sam's first comment. Also, I've appended a comment to AF's comment. Last, for now, here's an interesting document that constitutes the probable cause statement by the government. This scenario reveals a story different than the one told in the NYT summary I linked to earlier. So, of course, change the facts, change the analysis...

Sam, I'll issue the same caveats. I'm not a member of the Florida Bar and don't study this stuff as part of my research. 
That said, based on what I've seen, for 2d murder, you have to have evidence showing a depraved mind without regard for human life. I can't yet see a jury, faced with the evidence purported by Zimmerman and the witnesses, etc,  conclude that kind of mens rea brd. 
By contrast, if one thinks Martin was engaged in unlawful battery against Zimmerman, and one thinks that Zimmerman unnecessarily killed him (some form of imperfect self-defense) then the following statute section would probably apply.  
782.11 Unnecessary killing to prevent unlawful act.—Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082.
Moreover,  the culpable negligence for the manslaughter statute you mention is defined in the jury instruction in a most peculiar way (ie, it allows recklessness to be conflated with negligence):  Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others.  Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

One more thing:  Apparently even Martin's mother thinks the shooting was an "accident." She told NBC: "I believe it was an accident. I believe it just got out of control and he couldn't turn the clock back."
Maybe Martin's mom doesn't quite understand the significance of what she's said, but, wow, this case keeps getting more interesting. Can you imagine if Zimmerman had just said, Sorry, your son and I got into words, he was beating me up and I felt I had no choice but to shoot, but I'm sorry for your loss. Do you think this whole thing would have been stopped right there? 

Update: Martin's mother has now clarified her statement to the effect that she still believes Zimmerman did in fact stalk and murder her son in cold blood. 

Law Deans in Jail! or Law Deans in Jail?

Over the last few days, I had the pleasure of perusing a new draft, Law Deans in Jail, (co-authored by Morgan Cloud and George Shepherd, both of Emory). The paper is forthcoming, and I confess I'm curious what the indemnity clauses will look like in the author-publisher agreement...

My comments are really more requests than criticisms as such. Upon reading it earlier this weekend, my first reaction was a plea for punctuation. Given that the brief/paper makes the serious and plodding case for the criminal liability of some deans and institutions (as well as USNews) under various federal criminal statutes, I was puzzled why the title didn't have a ? mark in its title. The merely declarative title makes it seem as if the case is open and shut. In the introduction, the paper notes that the sources for making the federal case against various persons and entities are news stories, not sworn depositions, etc, and thus the claims about liability are contingent or tentative. By the end of the paper, however, it's hard to see much for the case for contingency. My sense at least is that Cloud and Shepherd think there's a basis for a federal case here and that it should be made.

I mention this in part because it reminds me of Paul's earlier post today referencing Fallon and amicus briefs, and the duties of scholars (a topic I find myself perennially interested in).  I think Cloud and Shepherd have made a very interesting argument in their paper. It's not entirely one-sided. After all, in  a few places, they consider why deans might respond to the USNews questions in "gaming" ways that are perhaps morally defensible. But the paper's not exactly balanced with much effort to discern what might be the other side's defenses, legal or moral. Of course, not every paper needs to be aggressively even-handed, and there is still a good case for some scholarship to be useful enough to lay the groundwork for actual litigation. (*Disclosure: Maybe I'm just saying that tendentiously because I have a project that's I hope will eventually serve that function too.)  

So, in addition to the plea for the question mark and, with it, the unreasonable request for more discussion in an already 70-page paper of the shortcomings of the evidence adduced against the legal education institutions and USNews (or the possibility of countervailing defenses), I also have a second question.

That is: among our readers who have read the paper and served as a prosecutor (preferably a federal one), or otherwise know a decent enough amount about criminal law, how many would actually exercise the discretion to bring the case, or at least investigate its claims further, etc.? (This goes to the usefulness of scholarship per Paul's discussion in his other shrewd post of the morning.) If you wouldn't bother from the outset, why not? If you would make at least preliminary investigations, what kind of specific factors would convince you that this is a federal case worth bringing as a criminal case as opposed to some other form of legal response (or perhaps no legal response, just social pressure/media, etc.). (Please don't just refer to the Petite or other USAM factors. Apply them!). Or, if you're a populist, like some friends of mine, would you want an equitable grand jury to decide whether to go forward apart from the legal accuracy question?)

I was definitely more persuaded after reading the paper than I was beforehand that a case could be made. I understand lots of people might like to see the criminal law used to this effect because of valid concerns they have about the misleading data that was circulated and left uncorrected about job prospects or LSAT scores by USNews.  But I have some qualms, none of which are vital to resolving the "federal case" issue but need to be kept in mind still. First, if law school deans now respond to the threat of criminal liability (or other legal recourse) by having to independently seek verification by Jones Day or other expensive law or accounting firms about the numbers produced by their employment and admissions offices, then that cost will be passed on to students and faculty because of a breakdown in the trust between Deans and those offices or because some Deans acted very poorly. Maybe that's a cost worth bearing but how much are people willing to pay for that?  Second, maybe Deans should simply ignore the social demands on them created by the rankings and then not worry about these issues. Here, though,  I think there's a colorable fiduciary claim that deans would violate duties to their stakeholders if they utterly ignored rankings; my view is they should pay them attention but not to the exclusion of acting ethically.  I say this in part because I value the information-forcing benefits that rankings provide to the public.

Finally, maybe USNews and law faculties around the country need better "warning labels." I.e., Law schools could say, for the public interest we have made reasonable efforts to gin up information that conforms to the requests made by USNews or others in allowing informed decision-making, but there is always the possibility of human error or malevolence that we couldn't control, and so, caveat emptor should apply to the consumption of these data...

So: a federal case? Is this an instance of academic overcriminalization/prosecutorial over-reach?  Or a much needed instance of social and legal responses to hold accountable through federal courts those who would train our legal overclass?

(Signed, verifiable, civil and substantive comments invited. Others will be removed and possibly banned.)

Reading list suggestions for Crim Students

A student of mine asked me recently about books that give an inside feel of what it's like to be a lawyer in the criminal justice system. I thought I'd crowdsource and invite you to weigh in. 

Off the top of my head, I could think of a few. I haven't read them all or even many of them, so perhaps I should add them to my Amazon wish list...feel free to add more suggestions in the comments.  

David Feige, Indefensible

John Kroger, Convictions

Dershowitz, The Best Defense

Abbe Smith, Case of a Lifetime: A Criminal Defense Lawyer's Story

Kevin Davis, Defending the Damned 

Stephen Bogira, Courtroom 302

 

Why I Blog (as a Law Professor)

The following essay on why I blog was solicited by Chris Lund for the recent issue of the AALS Newsletter for the Section for New Law Professors. You can see the other  "Why I Blog" essays by Maher, Albert, Shay, Helfand, Mason--all of whom, oddly, are Prawfs alumni -- over here.

***

Why I Blog (as a Law Professor)

I’m not sure why, but my instinct is usually to dodge the question of why I blog. Perhaps I’m scared of the answers. But for those of you thinking about taking the plunge into the blogging waters, here are some quick thoughts.

Just for background, a few friends and I started Prawfs.com (aka PrawfsBlawg) back in April 2005, when I was transitioning from legal practice into the legal academy.  At the time, I was just finding my scholarly voice, and blogging seemed like a shiny new vehicle in which one could converse with other scholars.  Prawfs was one of the few group law-professor blogs back then. The hope was that we would provide an ecumenical but mostly center-left and somewhat edgy space for commentary about legal, political, and academic developments. 

I initially imagined that we’d evolve into a sort of counterweight to the flourishing Volokh Conspiracy.

It wasn’t long before we realized that idea was both too difficult to achieve and in some sense not even an attractive goal. The contributors to the VC, it turns out, were far more committed to daily blogging about current events than we were. Moreover, we ended up growing into an entirely ecumenical space without any intentional gravitational force exerted by the center-left point on the spectrum. As a result, Prawfs morphed into a portal for the community of (primarily) American legal scholars, one where discussion about what one should wear to class was just as likely to appear as a discussion of the defective reasoning in the latest Supreme Court opinion.

 

To my mind, this shift – where we became a more collectively introspective enterprise – was entirely salutary. Indeed, I think I continue to blog because I love the notion that there is a virtual space in which the academic legal community is strengthened and sometimes transformed by the ideas and experiences that we share in the blogosphere.  Prawfs is, at least every now and then, a catalyst for those changes.

 

Blogging does take up time, of course, and one has to be mindful of how to integrate that commitment alongside one’s other obligations to family, community, and work. I keep this time-management issue under control by tending to blog about one of two things: topics oriented toward the community of scholars generally (such as the ethical practice of legal scholarship or the future of SSRN) or topics directly related to the scholarship that I love spending much more of my time on. Neither area requires lots of additional research for me, nor is there a pressing deadline that I have to bear in mind.

 

That said, because I still love long-form scholarship, I sometimes avoid using the blog to elaborate on topics that I care about but that I worry will seem too abstruse. I also sometimes avoid the effort of trying to pack my arguments into digestible blog posts, because I don’t wish to get ensnared into a debate in the comments that might prove exasperating or otherwise, um, icky. That said, once you start blogging a little bit, you realize there are ways of massaging the language of your blog posts so as to avoid inflaming the worst and most abusive online readers; the key is writing in a conversational way, not too dogmatic or harsh, but not too timorously either.

 

Time, imprecision, and frustration are sometimes the costs of trying to make a piece of scholarship accessible to non-specialists. Still, that effort is often worth it, especially at Prawfs, where we have made efforts to ensure a relatively congenial community of commenters. After all, one of the best things about blogging as a medium is that it enables you to find new readers and interlocutors for your work and ideas. And as writers, you win your readers one by one by one. This point about community building seems especially salient in light of the fact that law professors live a largely monastic existence in their offices. Blogging helps as an antidote to that vocational loneliness. Finally, I think we are obligated to make some efforts to get our ideas out there. As scholars, we spend years trying to generate intellectual capital. We are paid to do so by virtue of the generosity of public legislatures and private tuition and donations. Accordingly, I think we owe our benefactors our efforts to disseminate our hard work beyond the typical and sometimes closed channels of distribution that we often rely upon.

In sum, I blog because, first, I sometimes have ideas and care to share them, and second, and more often, I am curious about an issue facing the legal academy, and I’d like to hear what other people do to address that issue. Blogging, then, creates a space for me to teach, but more selfishly, it is a space where I can be taught.

 

A Recent Illustration of Political vs. Comprehensive Retributivism

This post will exhibit fidelity to Paul's recent heuristic for determining which posts belong to which writers. Yes, this is about retributive justice, and punishment more generally. I raise it now in part because a couple of my favorite folks in the field are guesting on Prawfs, Michael O'Hear and Carissa Hessick, and perhaps they'll want to weigh in.

In some of my recent work, I've tried to elaborate the distinction between what I call political retributivism from comprehensive retributivism. I'm a fan of the former in liberal democracies but more likely to enlist with the comprehensive retributivists, to some extent, in wicked regimes. Part of the attraction to political retributivism is that it recognizes the special communicative language that state punishment speaks in, and it attempts to impose, calibrate, and justify only the liberal state's efforts at authorized punishment for criminal offenses, rather than trying to make sense of or justify the amount of suffering an offender experiences in response to his moral wrongdoing. So the emphasis is on punishment for offenses rather than suffering for wrongdoing. It's pretty difficult to tell which approach has more adherents within the retributive justice camp. I like to think the political approach is winning the hearts and minds of most criminal law theorists, at least within liberal democracies, but it's pretty clear that it hasn't happened yet. 

Criminal law theorists are not without their standard ways of drawing examples to illustrate the differences between the approaches: we often talk about the burglar who breaks his leg during the home invasion or the reckless driver who kills a family member as a passenger in his car. Should the fact of private suffering mitigate state punishment or liability, or in extreme cases, thwart liability by way of prosecutorial declinations?

Often, these examples seem abstract. Here's one ripped from the pages of the recent news. A couple weeks ago, a New York man perpetrated a crime of unspeakable cruelty: he doused a 73 year old woman in gasoline, and then lit her on fire in an elevator, and blocked her escape so she had to burn to death.  As the reporter for the Times put it:

Mr. Isaac, 47, methodically set the woman aflame, burning her alive in the elevator of her building in Brooklyn on Saturday, only a few feet from her apartment door, the police said. He sprayed the flammable liquid in the woman’s face and over her cowering body, and then lighted a Molotov cocktail to ignite the fire.

Within minutes, Ms. Gillespie was burning to death in the narrow cab, and her assailant had fled down the stairs. The attack lasted only a few minutes, all of it captured by surveillance cameras; the sheer, calculated brutality stunned even the most hardened of homicide detectives.

During the course of the crime, he experienced some severe burns himself. Now I take it as a given that his liability to murder charges shouldn't be influenced by his private suffering that he experienced as a result of his crime. (Notice that his suffering is a result of his crime but not a response by others to his crime.)  I also think I would be unmoved by any desert-grounded claim that his sentence should be reduced, even somewhat, as a result of his injuries, which don't appear to be life-threatening. But here, I constantly face challenges, not only from comprehensive retributivists, but also the various utilitarians out there who think that "extra-legal suffering" should be offset by reductions in legal penalties. To me, it's a crazy suggestion that indicates that people don't understand the social meaning of punishment correctly, but it's an intuition that remains rather obdurately.  

 

The End of Hockey (Fighting)?

Unlike Wasserman, Vladeck, and Bodie, I'm just a nerd with little interest in and patience for following the sports pages these days. (Unfortunately, I still have tons of useless trivia stuck in my head from my days of fandom as a kid.)

Nonetheless, I've been drawn into John Branch's series of pieces on Derek Boogaard in the NYT this week. Boogaard died at the age of 28 not long ago, due to an overdose from painkillers. He was a brutal "enforcer" for his hockey teams, and the series by Branch effectively underscores the complicity of officials, owners, coaches and fans in the gladiatorial aspects of Boogaard's life and death. Notwithstanding too many links to videos of important fights in Boogaard's career, I highly recommend the series so far. (The links are too tempting and I feel like Leontius looking back at the executioner's carnage.) I'd be surprised if it's not a finalist for a Pulitzer. More importantly, I think it shows to a wide audience of NYT readers just how pervasive the senseless violence on the ice is; it might also spur some important changes to the game of hockey itself. 

Importantly, if Boogaard's family sought the chance to do something (and maybe without them too), the series could lay the foundation for the kind of tort litigation/media onslaught against the hockey industry that we've seen work (and not work so well) in other areas. Boogaard was a bruiser, and, from my criminal law perspective, I could see all sorts of reasons why local and enterprising DA's might try to make a case against him and the "enforcer" crew of which he was a critical part (consent as a defense be damned!). But he was, as the articles show, vulnerable to all sorts of social influences and financial incentives that others bear responsibility for as well. Not every social problem requires legal redress in the courts. But even (or especially) if the NHL won't fix itself -- and it seems to have resisted efforts to change the penalty structure for more than 90 years -- I hope it will be spurred to change by moral entrepreneurs in the courts and elsewhere inspired by Branch's series on Boogaard. There's no reason for thinking that brutal disabling fights are a necessary feature of hockey. And if they are, then I'm all in favor of a new sport of senseless violence-free shmockey.

Update: I've been alerted to Jeff Yates' paper on reducing violence in sports through criminal prosecutions. And you might want to check out the NYT's latest report: namely, that Boogaard's head was massively diseased from all the concussions he suffered.

{Signed, verifiably addressed, and substantive comments are invited.}

Another Governor Acts Against the Death Penalty. Did He Do So Justly?

I realize it's Erev Thanksgiving and so people are busy getting their yams all candied and such, but before the night closes, I just wanted to flag an article in today's NYT about the decision recently by Oregon's governor to halt all further executions, at least temporarily. Governor Kitzhaber explained his decision in the NYT but the text of the speech actually provides a fuller and more tension-replete picture.

There are lots of interesting and problematic claims about personal morality, public policy and professional identity advanced by Governor Kitzhaber. For what it's worth, when Illinois' Governor Ryan commuted the sentences of all those on death row back in 2003, I wrote a long article arguing that retributive justice concerns are advanced by decisions like Ryan's to commute death row and abolish the death penalty. I am accordingly, and unsurprisingly, heartened by Kitzhaber's decision. That said, I think his reasoning could have benefited from greater care and mindfulness about what he's prioritizing when making his decision. Does he have good reason for thinking he's acting consistently with his institutional role? Yes. Without reprising many of those arguments I've laid out elsewhere, let me just reiterate that I think he does have good reasons available to him but I think those reasons largely should have spurred him to have gone further than merely issue a temporary reprieve and a call to the legislature to revisit the issues again.

Moreover, as I've explained in my more recent work, which is at turns blandly conservative and at turns quite radical with respect to our obligations to conform to or to enforce criminal laws, I'm all in favor of officials who try to be conscientious about the workings of conscience. Consequently, I'm not at all troubled by Kitzhaber stating that he consulted "mostly [him]self" when making this decision. After all, even if you're an official within a liberal democracy, on my view, you are required to forbear from acting illiberally or in a spectacularly dumb fashion. Moreover, on this account, punishments must not flout what I take to be the animating values of retributive justice. Since, in this particular situation, the death penalty and its uneven administration are (I've argued) starkly at odds with these principles, Kitzhaber has nudged his polity in the right direction even if he hasn't quite gone far enough. 

Scholars and the Briefs They Sign (qua Scholars)

I'm back in the 'Hassee after a quick trip to NYU earlier this week. Unfortunately, I'm missing the colloquium today for Dick Fallon's paper on scholars and the amicus briefs they sign. Somewhat oddly, the paper is part of the festival of ideas hosted weekly by Dworkin/Nagel. I say oddly because the colloquium is ostensibly about social, legal, and political philosophy, and the paper doesn't really have much to do with any of those topics. That's not a mark against the paper. Like all of Fallon's work that I've read, it's careful and thoughtful, and indeed philosophically informed. It's just a mite odd given the venue. That said, because the venue frequently attracts leading con law scholars who sign amicus briefs of the sort that worries Fallon, maybe it makes good sense for Fallon to go into the proverbial lions' den. 

In any event, I had a chance to peruse the paper earlier this week and I think Fallon's right to push legal academics to be more circumspect about the amicus briefs they sign. Fallon cites Ward Farnsworth as having raised some of these issues a decade ago. Here's Farnsworth's basic point: "when academics offer opinions in their professional capacities, they should use the same care and have the same expertise called for in their published professional work, or should disclose that they are adhering to a lesser standard. Equivalently, they should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." It seems that Fallon largely agrees with this. Count me in too. But Fallon proposes a few other norms to guide the development of scholars' briefs. 

FWIW, I think I've only signed fewer than a handful of amicus briefs, but it's true that I haven't always been as familiar with the sources cited in them as would be appropriate under Farnsworth and Fallon's prescriptions. Since I have a non-trivial interest in the ethical standards of legal scholarship, I find myself feeling a bit shame-faced. I'm glad Fallon's new paper provoked this greater mindfulness on my part, and I hope his essay and the norms it seeks to promote will find a warm and welcome embrace by other prawfs as they contemplate their participation in the seemingly growing practice of filing scholarly amicus briefs with the courts.

 

Isn't there an actus reus problem with the prior pot arrest policy in NYC?

The other day, the NYT reported that the NYPD was going to stop arresting individuals who had a small amount of pot on their persons, pot that became apparent during a stop and frisk:

Just over 50,000 people were arrested on marijuana possession charges last year, a vast majority of them members of minorities and male. Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.

The important background here is that NY a while back decriminalized private pot possession but permitted arrests and prosecution for public use of pot. To my mind, this change in policy by Commish Kelly is a massive improvement.  Today's editorial page lauds the change and also invites more scrutiny.

Ok, here's some scrutiny.

Not knowing if this argument has been made before, I want to suggest that, from the perspective of conventional criminal law principles, there's a deep actus reus problem afflicting all those arrests made prior to the new memo. 

In the casebook I use for crim law (Dressler), one that is widely used, we begin the semester discussing, among other things, the need for an actus reus (sometimes translated as bad act), which is a voluntary or willed act. The actus reus requirement exists for most crimes; the exception is omissions liability, a point that is irrelevant here.  Crimprofs typically teach this principle through a cased called Martin v. State, 31 Ala.App. 334 (1944). In Martin, the defendant had been convicted for being "drunk on a public highway." The problem is he was drunk in his home and then taken to a public street by cops, where he acted boisterously. The appellate court reversed the lower court's conviction of Martin and noted that there had to be a "voluntary appearance" in public in order for the conviction to stand.

Now, if NY follows this canonical rule, it would seem that not only were the arrests bad policy, but also illegal for being contrary to the actus reus principle. The only way I could see one slicing the actus reus baloney more thinly (in defense of the legality of the arrests) is to say that the mere act of bringing and possessing pot into a public space is the sufficiently voluntary act. But it strikes me that this is an implausible understanding of what it means to possess or use pot in public view.  (Put aside the X-ray glasses, Superman.) If persons take precautions to obscure the pot from public view and are not using it in public, then that should end the inquiry; the fact that, pursuant to a stop-and-frisk, they extract the pot from their pockets and place it in public view is not sufficient to satisfy the voluntary act requirement because they only do so at the behest of the frisker. True, the stopped persons are not having a spasm or seizure when they extract the pot from their pocket, but the conditions are such that it would be mistaken to think that the actus reus requirement is satisfied in any meaningful way when the cops are telling you to empty your pockets.  That's my sense at least. Am I wrong?

P.S. Orin has a very sharp reaction to this news from the perspective of criminal procedure. Check it out.

Weekend reading in criminal justice and an idea for other areas

My crim law friends at Rutgers have embarked on a very neat new project that I hope will be replicated across fields so as to address the vanishing book review problem.  Here's the announcement:

We are delighted to announce the launch of our new free website, Criminal Law and Criminal Justice Books, which features high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 

The website can be found at: clcjbooks.rutgers.edu 

Please peruse it at your convenience.  We welcome your comments and suggestions.  Please subscribe to the site to receive notice of all new postings, and feel free to forward the link to anyone you think would be interested. Our hope is that, before long, CLCJ Books will become an indispensable resource for scholars, students, and others interested in the field. 

With all best wishes,
Jim Finckenauer and Stuart Green 

Co-editors of Criminal Law and Criminal Justice Books

Check out in particular George Thomas' review of Brandon Garrett's new book and Adil Haque's review of the volume on Retributivism (and don't forget about the upcoming conference tied to that book at St. John's.)

What's Keeping Prawfs from Imitating Judges?

The NYT has a funny story today about this year's clerkship madness. Judge Kozinski fesses up to recruiting at birth, or something approximating it. A triumphant student still vomits from the stressful experience. All this raises many questions but here's one: why has the FAR process held up more against the threat of unraveling than the clerkship market? Is it simply because hiring for a multi-year position requires more due diligence? The judges would probably deny that--they'd likely argue that a year with a judge is more socially significant than a career where we're marginalized to reporting our views in the ostensibly irrelevant law reviews. I'm not sure why some talent markets unravel and others don't. Maybe the law schools are more inclined to see the benefits to hiring in a context where one isn't operating under hot emotions. What's your rank speculation?

Retributive Justice and the Demands of Democratic Citizenship

As some of you may know, I've been preoccupied the last 9 months or so on a big project called Retributive Justice and the Demands of Democratic Citizenship. I've thrilled to say that I've finally uploaded a draft of it to SSRN. You can download it here. The piece represents my early efforts at thinking through some of the relationships between political obligation and decisions regarding crime and punishment. In particular, I try to argue, contra crim law gurus like Doug Husak and Michael Moore, why it is that appropriately scaled punishment may, under the right conditions, be justly imposed on offenders for crimes involving conduct that is itself morally neutral (prior to or independent of law). If I'm right about that claim, then the underlying arguments also generate a raft of unusual implications, some of which are detailed in the abstract.

Sadly, the piece is long. Still, if you plod through it, I would be very grateful for comments as my hope is to turn this (and some other) material into a book tentatively entitled Rethinking Retributive Justice. The abstract and some more background about the piece appear after the jump. 

This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals. Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law. In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective. 

If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws. While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely. Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status. 

Like democratic criminalization choices, democratic sentencing laws must also be scrutinized. To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.

By way of background, the paper was the invited "launch" paper of a new journal devoted to criminal justice issues at UVA's law school, the Virginia Journal of Criminal Law. I am very grateful to Darryl Brown and the student editors of that journal for making possible the chance to come to Charlottesville to begin a dialogue with some of my favorite voices in criminal law theory: Josh Bowers, Michael Cahill and Antony Duff. When the first issue comes out, it will comprise my paper, the response essays by Bowers, Cahill and Duff, as well as a reply essay by me whose final touches I'm currently procrastinating via this blog post. While this project has been difficult for me at times to work though, I confess it's been a delight to have the opportunity for this conversation in criminal law theory to unfold both in person and in print.

A few thoughts on writing and shame

Thanks to someone on FB whose name I can't recall, I came across this essay  about the experience of shame in the process of academic writing. Take a look at it if you've not seen it yet. Once you have, come back to this post and tell me your reactions. My sense is that some people simply sound wonderful on the page from the moment they put fingers to keyboard. (This must be true, for example, of Paul Horwitz, Chad Oldfather, Rick Hills and Dan Kahan, right?). Sadly, those dudes have done comparatively little to open the kimono regarding their creative process. But if they are like most of us mortals, I think it bears mention and reminder upon reminder, especially for all the aspiring prawfs who read this blog and others like it, that the process of producing good academic scholarship in clear prose takes real sustained effort.*  

On that note, I recall with affection the story, perhaps apocryphal, of John Kenneth Galbraith, the Harvard luminary known for his econ and style. As the tale goes, Galbraith was presiding over a public celebration of his zillionth birthday or book in Cambridge. He was taking questions from the audience. A middle-aged woman asked: Professor Galbraith, how on earth do you get your prose to read so effortlessly? And, in an uncharacteristic flourish of candor and modesty, he said: well, after the 15th draft, I sure hope it looks effortless.

I am no Galbraith. In my own case, I number my drafts beginning 1.0 and they frequently go well past 10.0 (that is 100 or more drafts).  The first fifty drafts or so are typically drenched with shame and marinated in self-disgust. But still I plod on. Gotta feed the boys, right? Anyway, as it is, the project on punishment and democracy that I've been working on since February is now at version 10.4, and it hasn't even begun the editing process from the students.  It took me an unconscionably long time to realize what I wanted to argue but with the help of some good friends (yes, Cahill, it's principally your fault), I'm now more sure I'm saying something quirky and sound enough to lose the self-disgust. It's not yet up on SSRN, however. That's the signal that I'm still surrendering to the shame of the writing process, with a white flag around my neck.

I hope to overcome that particular bout of shame soon. But if it lingers, it may have to do with related anxieties about the connection between style and argument. Because I write principally in the philosophy of crime and punishment, I've frequently tried to strip my scholarship of any baroque tendencies that I would otherwise indulge. The topic itself is already abstruse. So, just the arguments, so much as I can bear. For me, sadly, the arguments take a while to develop and once I get there, I want to protect them from various objections; as a result, I still write really long articles. Thus, insofar as a writerly style has emerged, it's one that involves less verve and splash than I might otherwise prefer.

Because I want the arguments and not the art to perform their coercive task, I often feel my once-creative writing muscles and imagination have atrophied. And so the real shame I experience with my writing is

a fear that my beloved vocation has flattened, if not quite deadened, my soul.  Law school may be to blame: as the trope goes, it sharpens but narrows the mind. If what I read is any gauge, when I was in college, I was more of a fox than a hedgehog. Now, I think I'm a hedgehog with much less tolerance for reading or listening to foxes. And so I wonder: can hedgehogs still be interesting? Can they write coercively and creatively?

If the examples I mentioned at the outset are any indicator, the answer is clearly yes. So what is to be done? I'm curious to hear what others have done to retain or recover the palette of language or to overcome the various experiences of shame and the writing process.

 *That's partly a word of caution to the folks in the sheets who are practicing and who think they can just gin up a job talk paper in a couple months or less. In most cases, good prawfs will sniff out mediocrity or worse within a few pages of reading.

Should Prisons Run on a Voucher System?

A few weeks ago I had the chance to read Sasha Volokh's interesting papers concerning prisons and innovation. The paper I want to discuss briefly in this post is his paper on Prison Vouchers forthcoming in the U. Pa. L. Review.

Sasha offers us a nearly perfectly executed thought experiment paper centered on the idea: what if prisons were run on a voucher system? It's such a quirky and seemingly off-the-wall idea. But he does what good academics should do: he unsettles our intuitions and takes creative arguments out for a walk.  

Notwithstanding my admiration for the paper, I had a few random thoughts/reactions that I shared with Sasha and he permitted/endorsed my sharing these reactions more broadly. So what follows threatens to make sense only after one reads his actual paper!

First, though prison vouchers and prison privatization are not the same thing, I thought the paper might engage more of the critics of prison privatization because I sense that they would register similar concerns.  So, I could imagine there being more discussion of the non-instrumental critiques made by folks like Mary Sigler & Michael Walzer, and to some degree Sharon Dolovich.  Perhaps surprisingly to some (b/c I'm a retributivist), I have written in qualified defense of the careful use of private prisons (see the last 30 pages or so of my 2001 piece).  

Second, along those lines, I found the discussion of retributivism in the piece a bit on the crude side. That's because I think Sasha is guilty here of equating retributivism with the philosophy of MORE (offender suffering), and that might in fact be what some political figures or lay persons believe themselves or believe that's what retributivism amounts to, but there is now a long tradition of academic theorists who identify as retributivists and see retributive justice as an essentially humanitarian corrective to the teeming and squalid pestholes of prisons. I count myself as one of those. Chad Flanders and David Gray are others who have written recently on retributivism as a progressive force for criminal justice reform. So, Sasha could probably avoid alienating readers like me (on this overall relatively small point) simply by dropping a footnote or sentence in the text that indicates that his usage of retribution is really more related to a populist vengeance theory, and then cite some dumb politician who embodies the MORE school of punishment. 

One other point, somewhat related. I've often described retributive punishment as a coercive condemnatory deprivation, and in so doing, rejected the suggestion that offenders should get to choose say, between shaming punishments, and a period of incarceration, on the idea that prisoner preferences are of little to no normative significance. To the extent this derogation of prisoner choice matters to the punishment's social meaning, Sasha deftly avoids that problem by arguing that the prisoner's choice can be simply instrumental toward goals extrinsic to respecting the offender's autonomy. That was a nifty argument.

In the conclusion Sasha worries that prison vouchers will reduce the deterrent effect of prisons. The truth is that this concern is ultimately quite speculative; indeed if the work of folks like Tom Tyler or Robinson and Darley is correct, then the possible reduction in  marginal deterrent value attributed to prison vouchers is likely to be negligible.  I realize this skepticism toward the achievement of marginal deterrence might be heresy to some economists interested in punishment design but if one were in fact sensitive to the facts and not just incentive theories, and if marginal deterrence is incredibly difficult to achieve let alone measure (as some credibly believe), then there's less reason to be concerned about the costs to deterrence of this plan.

 

This is the last point: it's commendable of Sasha that he's basically running the thought experiment and expressing ambivalence and caution in the conclusion, but some parts of the article seem less ambivalent. If the paper is really intended to be less than full-throated support for the thought experiment at its core, then perhaps the best signal is to slightly adjust the title to: "Prison Vouchers?"

Sundry: SEALS, scholarship updates, and the writer's studio

The annual SEALS conference is coming up next week, which I'll be excitedly attending. Our crew will be staying next door to the Marriott at the Palmetto Dunes--so please message me if you're there and want to celebrate Benben's 2d bday on the 29th.  Notwithstanding the happy hour the night before, the (sincere!) motivation for the trip is a panel I'll be doing with Larry Solum, Usha Rodriguez, and Dave Fagundes on the question(s) of: (How) Can Blogging Build Community in the Legal Academy? I think blogs like ours (particularly Bodie's wonderful book club series) have done some great things toward cultivating community (at least defined in some ways), but Usha is right to ask her readers what else can be done. So...as a new school year awaits in the shadows, I thought I'd ask for readers of this blog to share thoughts they might have (either via email or in the comments) about what more Prawfs can do to build a warm and engaged community in the legal academy. After all, I'll need something to talk about on the 29th at 10:15am!

While I'm typing on the intertubes, let me take this moment to conclude my recent short series of posts with updates on what I've been working on. Mercifully, this will be the last of the batch for a while. 

First, the other day I put up on SSRN the final version of a chapter entitled What Might Retributive Justice Be?, which appears in the recently published volume, Retributivism: Essays on Theory and Practice (edited by Mark D. White).  As the piece is, for me, relatively short, it's worth mentioning that this chapter might be somewhat helpful as an introduction/overview of contemporary retributive justice theory for those (1) less familiar with punishment theory and (2) tasked with teaching (or studying) criminal law or sentencing law in the coming year. By the way, there will be a conference at St. John's Law in NYC on Friday Nov. 4th devoted to discussing the chapters and themes in the volume. If you're interested in attending, let me  or Marc DeGirolami know. 

Second, thanks to a teaching leave made possible by the good folks at the Searle foundation and FSU, I've spent much of the last five months working on a piece trying to connect the literature on political obligation (ie., is there a moral duty to obey the law) to criminalization and punishment theory. The resulting marriage is a paper entitled Retributive Justice and the Demands of Democratic Citizenship. Not sure why, but I'm still holding this one back from SSRN right now. Nonetheless, it's now in a sufficiently complete draft(!) form that I'd be happy to share it with any folks who want a sneak preview and a chance to help me avoid various errors.  

Third, I've also just put up a short essay (entitled A Judge for Justice) on related themes of disagreement, deference, and democracy in the context of crime and punishment (and in particular shaming punishments). By looking at the somewhat famous Gementera case carefully, the piece is intended as an homage to my former boss, Judge Michael Hawkins on the Ninth Circuit, who transitioned to senior status recently. To mark that transition, the editors at the ASU LJ convened a celebration/symposium earlier this year with some of his former clerks who are now prawfs; accordingly, the issue in Volume 43 with my essay also includes thoughtful reflections on Judge Hawkins' jurisprudence from Profs. Lenni Benson,  Thomas Healy, and Carlton Larson.

I was going to include something about our new "writer's studio" at FSU in this post, but I'll save that for a separate post, as this one has probably gone on long enough. More later. Happy Thursday.

What will Congress do regarding the tax treatment of punitive damages?

For the last couple years, I've been interested in the proper tax treatment of punitive damages as a consequence of my collaboration with my erstwhile colleague, Gregg Polsky, who's now at UNC. There have been some developments on this front that should be of interest to both practitioners and legal academics interested in litigation, tax, and torts. And that's why I'm curious, as the title of the post suggests, what Congress will do. To begin, Gregg and I wrote a piece that came out last fall in which we argued that (1) plaintiffs should be able to introduce evidence to the jury or judge regarding the marginal tax rate associated with business defendants in punitive damages cases so as to allow a tax-informed "gross-up" of punitive damages, and (2) that the tax-informed jury/judge (with an ability to gross-up) was a better solution to "the insufficient sting" concern than the option touted by President Obama, which was simply to remove the ability of businesses to deduct payments of punitive damages as ordinary business expenses. The arguments we made in this piece were largely analytic and prescriptive given the constraints and goals established by the current doctrine as we saw it. Importantly, we think the arguments of our paper should trigger lots more interest by plaintiffs' tort lawyers, since they now have a set of tools that can increase the recovery for their clients in a variety of tort cases involving malicious or reckless misconduct.* In response to these arguments, we were delighted to see that Professor Larry Zelenak from Duke and Paul Mogin (from Williams and Connolly) wrote responses to our piece for Virginia Law Review's online companion, In Brief. Gregg and I now have a working draft of our reply up on SSRN, entitled, Revisiting the Taxation of Punitive Damages. Thus, in an Escheresque-turn, we now invite comments on our comments on their comments on our paper :-)

On a related note, I earlier this year published a companion paper that took a more expressly normative perspective on the optimal design of the tax treatment of punitive damages. That piece -- Overcoming Tradeoffs in the Taxation of Punitive Damages -- is now out, and I've just recently put up a final version on SSRN. In that article, I explained that the tradeoffs created under current law between ostensibly unnecessary plaintiff enrichment and proper tax incentives for business defendants could be overcome by implementing the punitive damages reforms of the sort I have recommended elsewhere.  These reforms would disaggregate the purposes of punitive damages more clearly so that the optimal deterrence function and the victim vindication function could be separated cleanly from the function of vindicating the public's interest in meting out a retributive intermediate civil sanction. More specifically, I argued that the proper tax treatment of the punitive damages (with respect to whether the defendant's payments should be deductible or not) will depend on what goals states have for their punitive damages regimes, and what goals the federal government has with respect to subsidizing those regimes.  Now, if I were you, I'd be wondering, what's Markel know about tax? That's not an unsound intuition. But I had a lot of help from Gregg and a gaggle of other tax prawfs, and my hope is that this piece will be of interest to anyone intent on understanding the full tax dimensions of punitive damages design specifically (and penalties more generally), especially and insofar as these penalties relate to optimal deterrence, victim-vindication, or public-interested retributive justice. 

Last, Gregg and I have just seen one of Congress' Joint Committee on Taxation reports for 2011, and we noticed that the Committee has acknowledged our argument, but hasn't really grappled with its implications fully. So, at this point, we are waiting to see what happens. Our hope is that the Obama Administration and folks in Congress (and the relevant lobbyists too!) read our work and realize that a repeal of the deductibility of punitive damages will interfere with both the appropriate punishment of business defendants and the states' choices to run their tort system in a way that achieves the goals they intend to set out for themselves.   

* Here's how a friend of mine described to his partners at a prominent class action firm the gist of the claim Gregg and I advance with respect to settlement dynamics and the benefits of our argument.

I think the upshot is that if Ds know you have a credible threat of getting the jury to award more in punis because of the gross-up threat, they'll settle for a higher amount.  Same logic as when you try to get a high pre-trial settlement based on the argument that the jury pool in the particular area is plaintiff-friendly.  Eg:

 

1.  expected compensatories = 1m

2.  expected punis (with jury unaware of tax issues) = 3m

    expected punis (with jury informed about tax deductibility) = 4m (because they know the pain to D is only gonna be 2m)

3.  chance of victory = 25%

 

settlement value under old scenario = (1+3)*25% = 1.00m

 

settlement value under new scenario = (1+4)*25% = 1.25m

 

An Update (Part 1)

I've finally had a few hours to clear some stuff off my plate, and that includes updating some drafts on SSRN. I'll do a few of these self-promotion information-dissemination posts over the next week or so. The first thing I'll report is that there's now a final version of a couple papers having to do with punishment theory and the subjectivity debate up there. I'll put the abstract of the more recent of the papers below the jump after a little background on a funny and trivial matter.

The first one, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice , came out last summer or fall, can't remember. Anyway, and oddly, the good folks at the law review wouldn't allow my co-author (Chad Flanders) and I to include a Table of Contents and Abstract in the published version because at the time, they had a policy of no abstracts or TOC's. We were kind of upset about this as it seemed like a ridiculous policy to have in the first instance--who doesn't love a good TOC and abstract? Moreover, we had submitted our piece with a TOC and abstract (and were not told at acceptance that we'd have to jettison it).  It was even weirder, we thought, for them to not budge, even though they acknowledged it was a silly rule, on the grounds that others were stuck with that rule in the volume, and so, we should be stuck with it too.  (Not sure how many complained though...) Anyway, after publication, one of the editors there was nice enough to format a TOC and abstract that we had written, and the version that's up on SSRN now has the published version following that TOC and abstract. Phew. 

To our delight, a few of our interlocutors in that project (Professors Bronsteen, Buccafusco & Masur) wrote a response to our article, and we wrote a reply (inviting along David Gray from UMaryland, with whom we had a shared interest on the merits of this debate). Our essay, Beyond Experience: Getting Retributive Justice Right, which is now up on SSRN, appeared in a new volume of the law review, and I guess because folks boortched about it previously, the editors of the new volume allowed and even encouraged TOC's and abstracts. Mirabile dictu.

Here's the abstract for "Beyond Experience: Getting Retributive Justice Right," the final version of which is now on SSRN.

How central should hedonic adaptation be to the establishment of sentencing policy? 

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release experiences as part of the suffering the state imposes as punishment. 

In subsequent articles, we challenged BBM’s arguments (principally from the perspective of retributive justice) -- see below for SSRN links. The fundamental issue between BBM and us is whether "punishment" should be defined, measured, and justified according to the subjective negative experiences of those who are punished, an approach we refer to as "subjectivism," or whether the more compelling approach is to define and justify punishment, more or less, in objective terms such that the amount need not vary based on experiences of offenders alone. 

In their responsive essay, "Retribution and the Experience of Punishment," BBM responded to our challenges. This essay of ours now assesses the impact of their responses, again from the perspective of retributive justice. We remain unpersuaded by their conceptual and normative responses. We also use this essay to explain further the wrong turns associated with BBM's decision to endorse subjectivist concerns as the principal measure and justification for the infliction of retributive punishment. 

Markel and Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Punishment, http://papers.ssrn.com/abstract=1587886 

Gray, Punishment as Suffering, http://ssrn.com/abstract=1573600 

BBM, Retribution and the Experience of Punishment, http://ssrn.com/abstract=1692921

One of the best posts on health care I've seen, ever.

As yet one more insidious Canadian, I feel duty-bound to send you over to The Incidental Economist for some very interesting information about the comparative advantages of health care provision in Canada vs. the US. This brief post by Dr. Aaron Carroll should help you explain to your American friends and family that single-payer systems should not be so scary. Hopefully this kind of info-mongering will have an impact during the coming election season. Anyway, here's how Carroll begins:

Paul Krugman has been on a tear the last few days with a number of posts defendingCanada’s Medicare. This was all leading up to his latest column, where he questioned why Medicare should be unsustainable in this country, when it’s sustainable there.

I’m sure we’re going to now face the usual howls of protest, comparing Canada’s health care system to a death sentence.  So let me summarize a few of my past posts to try and pre-empt some of the false rhetoric.

 

Would you lie to prevent accurate enforcement of an unjustified law?

Here's something I'm thinking about vis-a-vis my article and I thought it might be fun to hear people's thoughts.

If you knew and saw A did X in front of you, where X is a crime that you think is unjustifiably criminalized because at bottom you think X lacked any morally blameworthy feature (e.g., pot possession/handgun possession/eating on the subway, whatever), how many of you would lie if the cop asked you (Did you see A do X a moment ago) or if the court called you as a witness--in order to prevent accurate enforcement of the law against A?

I take it some of you might be willing to lie or not answer if A if A was family/friend--true? But perhaps that would be the case even if X was a justified crime in your mind? In any event, how many of you think you should lie, but doubt you would because you fear the perjury/false statements criminal liability to you if you did? What are some of the other options you think are desirable as a moral agent facing this quandary?

I'd be curious to see what your intuitions are when you tweak the scenario in several ways too:

a) imagine you think X should be permitted conduct but you think the law banning X is nonetheless morally legitimate even if you don't think it's  all-things-considered justified in your view to have a criminal law prohibiting X.  (This is kind of like saying you think the law passes muster under a deferential reasonableness review). Would you lie then?

b)  imagine you think X is impermissibly criminalized because the law is so spectacularly dumb that it couldn't survive deferential reasonableness review (e.g., a prohibition on chess). Would you lie then?

c) imagine you think the law banning X is illiberal (ie. and e.g, it violates a core political right such as free speech) (perhaps X is flag burning). Would you lie then? 

Sundry Fundry

Earlier today, the NYT reported the jury's acquittal on the rape and other severe charges of two NYC cops. I've been intrigued by this trial for a few weeks, and as I had suggested earlier on FB, I was skeptical that the gov't was going to win this case especially without forensic evidence and with a victim who had blacked out so much of the evening's details on account of intense alcohol consumption. The gov't did have, however, a secret audiotape that indicated the likelihood of the principal defendant having sex with the victim; whether the audiotape indicated rape is, from what I recall, more debatable. (FWIW, the other cop was said to be either standing guard or alternatively asleep on the sofa in the living room of the victim).  Despite the acquittal on the major charges, the cops were both found guilty of official misconduct by the jury, and that prompted Ray Kelly, the NYPD Commish to terminate them promptly--before they were suspended with pay. “The guilty verdicts involved violations of the officers’ oaths of office and, as a result, warrant immediate termination,” Mr. Kelly said. 

So question to those who know or have basis for surmise: is an official misconduct jury finding typically sufficient  to warrant immediate termination? Is there a possibility that Kelly thought this was a case that didn't involve evidence BRD but nonetheless thought there was enough yuckiness about it that it made sense to fire the cops, one of them a 25 year vet? Was this a discretionary or mandatory firing?

update: a friend who's a prosecutor wondered if I thought that in light of the official misconduct found by the jury and admitted by the cops we would want those cops, even absent the allegations of sexual assault. I thought the hypo was very instructive. I take it that the proven misconduct of the cops was very serious. But if you were to strip away the allegations of the sexual assault altogether, would the gov't have brought this case? I don't know enough to say; my guess is that absent any claim of sexual misconduct, there would have been reprimands but not termination. That's why I asked if the terminations were mandatory or discretionary. Maybe, in light of the allegations of misconduct of which they were acquitted, the police dep't  fired these guys because there was enough evidence to think it was terribly bad judgment even if there wasn't proof beyond a reasonable doubt of rape.

In other news:

Dave Fagundes, the Charlie Rose of the Law Review Review, has an awesome travel blog of his time in Argentina this summer. DF is justly famous not only for being the person holding the most MVP awards from Prawfsfest, and for referring to himself in the 3d person as DF, but he is also a former Let's Go writer; unsurprisingly, his travelogue is sharp and funny. Pictures too. Keep up with him here.

Those of you who have read the important Brown v. Plata case (overview here), I'm wondering whether you had the same reaction I did to Alito's insanely over-the-top description of the decision below, in which he stated “The three-judge court ordered the premature release of approximately 46,000 criminals — the equivalent of three Army divisions.” Alito seems either to overlook or not care that "3 army divisions" are capable of and indeed intended to perform coordinated action; there is no basis for an equivalence between that and the prisoners to be released in California. Alito's dissent made some otherwise plausible arguments about the overbreadth of the remedy and the way the policy choices were smuggled in as facts, but I found this and other rhetorical flourishes in the opinion to be off-putting and thus less effective in making his case. I take the decision, for what it's worth, to be good evidence of the proposition that the state can forfeit (at least partially) its warrant to engage in retributive blaming practices when it is failing to discharge its obligations of providing sufficiently decent care to offenders. Whether it marks progress from Farmer v. Brennan--that remains to be seen.

Last, and on a happier and tipsier note: for those of you attending LSA in San Fran next week (or even for those of you who are not but are still in or near SF), consider yourself invited to save the date/s! There will be a general happy hour next week with our friends from Co-Op and Glom, among others, Thurs at 9pm. Location to be confirmed imminently. It will be near but likely not in the St. Francis Westin.  Relatedly, the CrimProf happy hour will be Friday at 9pm, at the Clock Bar in the St. Francis Westin. More details and location to be confirmed soon, but mark your calendar to save the date and time. All are welcome at either one. Hope to see you there. I'm begging Ethan to guide me on an underground chowhound tour, but hopefully at places about as bougie as his last batch of posh recommendations.

A Petty Plea to Our Friends at SSRN

I probably download five to seven articles a day from SSRN, which, to be clear, is not how necessarily how many articles I actually read. I have two quibbles about the downloading process. First, when I click on One-Click Download, I normally I have to click it twice for it to actually download. What's up with that?

More importantly, when it downloads, I have to rename each paper that I plan on keeping. That's because the paper defaults to be saved as SSRN-idXXXXXXX, where the X's are some random # associated with SSRN's filing system. I understand that, to the SSRN database, each of our papers is just a random #.  So sad. Seriously though, to users, we normally save papers with some useful descriptor so we can identify it quickly in our My Docs folders: e.g., Leib on Friendship 2011. My preference would be that SSRN create a better name default so we don't have to rename the papers once they're downloaded. I would prefer something like Markel 2011 on Democracy and Retributivism. Name, year, and a phrase. If you wanted to rename it on your own you could, but there'd be a useful default name at least. And when the author is submitting the paper to SSRN, she could be given the choice of what the short name would be if she didn't like the default.

If this were possible, it would save me a few minutes a day, and I'd have a better organized documents folder. So Gregg Gordon, can it be done? A few minutes here, a few minutes there, pretty soon you're talking real time! Whether that's more time for more scholarship or Angry Birds, I leave to you...

The Short Sharp Paper Series and a movie review too.

Since I would clearly never engage in icky acts of overt self-promotion, and I cringe :-) at the thought of others saying nice things about me or my work, that leaves it to me to sometimes use the blog responsibly and say nice things about the work of others. During this last semester when I had the privilege of a teaching release, I probably read more drafts than I usually do, sometimes to the consternation of those whose drafts I had read and commented on.  But I've also had the chance to continue reading lots of finished products and lately I've found all sorts of wonderful stuff worth sharing. Of course, I should be writing this up on JOTWELL, which was created with the smart idea that we should share our reactions about papers that we liked (lots)--it's a concept I love and I have even contributed, but, dammit Jerry, writing up a JOTWELL entry takes time. Fortunately, Facebook status updates don't take much time...and this post is sort of an agglomeration of some recent status updates--talk about synergy. 

Those of you on FB with me may have noticed that I have unwittingly started a series of touts or vouches for sharp and usually short papers that may be of broader interest. This has proven useful to a few of you, or so you say, Tamar and Sarah. In any event, I figured some of you may enjoy knowing what I've found really good or helpful to me recently, but I should note that I won't be offering explanations of why I think they're good. These will be like my occasional Ruth Franklin-inspired movie reviews. [Btw, I saw Win Win a couple weeks ago on a date night--worth watching, but for Netflix, not necessarily in the theater, at least if you triage your movie time as I do under the constraining presence of little monsters angels in your blessed and beleaguered life.]

So, without further adieu, here are a few disparate links in no particular order:

a) my Robin West brain crush continues unabated: here's some stuff of hers with which I recently slaked my thirst

b) a short YLJ student note by now prof Stuart P. Green on challenging prosecutorial inaction

c) an awesome YLJ essay by Jeremy Waldron from a few years back on democracy and judicial review--and Fallon's concise but cogent response, which I've now just read based on someone else's rec.

d) a nifty and short essay by Sasha Volokh addressing and critiquing the progressive case for cost-benefit analysis as propounded by Ricky Revesz and Michael Livermore

e) and finally for today, a recent piece by Sean Williams on self-altering injury and the hidden harms of hedonic adaptation, which just came out in the cornell lr.

Enjoy your reading time as summer beckons. And feel free to share similar positive reax to the work of others (non-anonymously) in the comments.

P.S. Did y'all hear FOP Alex Long on NPR the other day dishin' on his Bob Dylan and the Law stuff? You can find the link here. 

Will Organ Donation "Save" Death Row?

I just came across this fascinating oped in today's NYT by Christian Longo. Longo is on death row in Oregon, and as, he says, he is guilty of killing his wife and children. As an ostensibly contrite murderer, he is trying to make the best of his situation: he has abandoned his appeals and is trying to persuade  prison officials in Oregon to allow him to donate his organs upon his execution. The officials, however, have said no.

The officials have invoked several rationales for denying his request so far. Among them: increased likelihood of diseased organs, safety, inability to give informed consent, etc. Longo, however, has an interesting website, and the site addresses these various concerns. Importantly, Longo is not the only person on death row who would like to volunteer his organs. Nonetheless, there are no protocols in place to allow this life-saving altruism to unfold. 

Notwithstanding the substantial attention it receives, the death penalty itself is slowly dying in the United States as an imposed punishment. (So sayeth Columbia's Jeff Fagan at least, and it is a demise I welcome as a retributivist against the death penalty.) Nonetheless, I wonder whether the institution of the American death penalty would be "healthier" if death row inmates were permitted to donate their organs. If they were, my suspicion is that death penalty advocates would find a whole cluster of new supporters. Conversely, I worry that opponents of the death penalty will oppose organ donation efforts simply because it will politically imperil the demise of the death penalty.  Perhaps these worries are misplaced, but I can't quite put them aside after reading Longo's eloquent oped and interesting website--which, by the way, raises its own many questions of how a death row inmate becomes a policy entrepreneur with a paypal account anyway, but that's a topic for another day.

Some not-so-random updates on the scholarship front; or, what I like to tell my deans I did on winter "vacation."

I'm excited to say I've just begun my first semester of teaching leave. While I am excited to tackle some new projects now, I am also clearing some other ones off the decks. (And yes, I hope the leave facilitates some more substantive blogging too.)  In any event, for the benefit of my mom and a handful of other folks looking for something to read besides Amy Chua or Ethan Leib or Paul Horwitz's new books, I thought I'd let you know that there are new (and nearly final) versions of a couple pieces of mine up on SSRN and I just added a draft of a new piece.

The first new version is of my chapter, What Might Retributive Justice Be?, for the Retributivism volume edited by Mark D. White.  (I am hopeful that this volume gets the same publicity Mark was able to generate for his edited volume on procrastination--a review in the New Yorker!). As I alluded to when I put the draft up first, it is a relatively short overview of contemporary retributive justice theory (more specifically, the conception of that punishment theory that I favor). Thus, for those of you prawfs teaching criminal law to first year students this semester, and punishment theory this week or next, please feel free to circulate the draft or the link to your students who are still puzzled by the accounts of retributive justice offered up in their casebooks. 

The second piece I have revised, which is now up on SSRN, is entitled Overcoming Tradeoffs in the Taxation of Punitive Damages. This piece should be coming out in the next couple months and is a companion to a piece Gregg Polsky and I did last year entitled Taxing Punitive Damages.  Btw, Larry Zelenak of Duke wrote a super interesting reply to that piece, which you can see here; I suspect Gregg and I will write up a short reply in the near future. Anyhow, whereas the piece with Polsky made its recommendations regarding the taxation of punitive damages largely in response to the practice of punitive damages law currently governing in most American jurisdictions, the new companion piece is designed to advance the discussion of the normatively desirable tax treatment of punitive damages once punitive damages are properly disaggregated to serve the separate functions of cost internalization, victim vindication, and retributive justice.  In developing the normative policy recommendations, the new piece builds on the earlier work I've done regarding the reformation of punitive damages law.

Finally, and somewhat more exciting, Chad Flanders (SLU), David Gray (U. Maryland), and I have just uploaded a draft of a new piece of ours, coming out in April, which is entitled Beyond Experience: Getting Retributive Justice Right. It's an essay that continues and, for now, concludes our part in the conversation about the relevance of subjective experience, and in particular, hedonic adaptation, to retributive punishment. Although interest in subjective experience for purposes of punishment goes back at least as far as Bentham, this was a topic whose salience for retributive justice theory was most recently revivified in 2009 and 2010 by Adam Kolber; John Bronsteen, Chris Buccafusco, and Jonathan Masur (BBM); and, to some extent, my colleague Shawn Bayern. Chad and I wrote up an article (entitled Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice) trying to explain the wrong turns associated with such arguments. Separately, and roughly around the same time, David Gray wrote up his trenchant critique of Kolber and BBM (entitled Punishment as Suffering). BBM responded to our sallies in their recently published essay, Retribution and the Experience of Punishment. The piece I've just uploaded to SSRN, Beyond Experience: Getting Retributive Justice Right, is our attempt to deal with some of the new (and old) arguments and formulations advanced by BBM.  Doubtless, you're tempted to wade into this stunningly important debate yourself :-), but if you've been overcome by other obligations, here's the punchline of our piece: we're still not persuaded that hedonic adaptation is of any substantial significance to punishment theory or policy guided by retributive principles worthy of adhering to. 

Should Hiring Committees ask "Recruits" to Incur Some Bonding Costs?

N.B. The following post is meant to be offered strictly in my personal and professorial capacity, but not as indicative of my views or others sitting on the appcomm at FSU.

I'm a rank amateur in this realm (at least so far), but in the realm of agency theory, my understanding is that agents are frequently encouraged to "assure the principal that certain actions inconsistent with the principal's interest will not be taken."  These are referred to, in the jargon, as "bonding costs." My sense is that this concept could be useful in an area near and dear to our hearts: hiring prawfs, a topic of special interest this week with the rookie meat market happening now.

Although a candidate (rookie or lateral) is not really an agent of the prospective law school -- because the candidate is instead a possible future agent (or more accurately, in the realm of tenured prawfs: a possible co-principal) --  the idea of trying to encourage candidates to incur some bonding expenses may make sense (at least ex ante). Otherwise, schools might be "used" by lateral candidates for simply seeking raises or other retention deals from their current school, and schools might be "used" by rookies for practice on the job market, so that they get more feedback on their work and more experience giving talks, fielding questions, etc.  Candidates who are not serious about the law school they might interview with are a good bit like (though not necessarily identical) to those who send their papers to law reviews with whom have no desire to publish. The hiring scenario raises the question: what kinds of bonding costs, if any, are reasonable to ask candidates to incur to signal their genuine interest? *So how can schools reasonably try to reduce situations where candidates are not genuinely interested?

A few options:

first, require some co-payment on the part of the candidate for the travel expenses. Say: 250$. Tell candidates that they will be reimbursed that co-payment if the candidate is offered a job and it is accepted, or alternatively, if the candidate is not offered a job.  This or some similar gambit might work for deciding who to invite to campus. (Instead of a co-payment for travel, the school could just as easily, though perhaps less reliably, say please make a donation of X dollars to one of the following charities (or a charity of your choice) in order to signal your non-trivial interest in us; this might seem a bit more paternalistic because the donation to charity is non-refundable, or so I would suppose.  One senior academic has indicated another bonding cost that lateral candidates should incur is requiring them to come on a day that they normally teach, so that they have to reschedule their class and do a makeup, which generates a small but nontrivial expense/burden to them.

This still leaves open the question of which candidates' work should you consider before deciding to bring them to campus. Schools already rely to some extent on the signal sent when candidates at the rookie level send packets to specific schools, instead of just using the FAR form. But even packets are a pretty weak signal of interest, and it also offers no help in the context of hiring laterals.

I think asking rookie applicants to make a 5 or 10 dollar donation to a charity in your school's name is a potentially useful sorting device to decide whose work to read carefully. It's somewhat trivial in money terms but the very fact of having to do something for 10 minutes extra hassle could be a useful signal. I'd even be in favor of giving them back the money once they do it, or alternatively, those who plead paupery should be spared the expense but not the time by having to just write: I wish I could pay this "application" fee but I need relief; but by this statement, I am genuinely interested in working at your school and hope you will consider my candidacy.

The same tactic might work at the lateral level, but here, more due diligence up front could benefit both parties: appcomms should ask all interested lateral candidates to provide not only the cv and pubs, but also some teaching evaluations and names of 3-4 references so that candidates who are brought in are brought in because the committee has already done most of its homework, or at least had the opportunity to do most of its homework, and people don't have to fly out to campus only to get killed in committee after the job talk based principally on information that was available to the committee before the job talk. [This leaves the committee some flexibility to stymie a candidate based on the job talk or the interviews but hopefully not on the substance of the job talk, which, in my mind, should have been vetted before an invitation was extended--but that's another post.]

Anyway, I'd be curious to hear reactions to this proposal (good concept, but poor implementation; bad concept, but interesting implementation? etc.). Also, I'll let this post be a placeholder for a different post on whether committee attitudes to rookies should be different than those to lateral invitees (for example, rookies should be treated as applicants who need to impress the faculty whereas laterals should be treated as guests whom the faculty hopes to recruit).

--

*Conversely, is it possible that sometimes schools bring candidates through (whether to join the faculty or even more especially in the dean market?)  even though there is no genuine interest in hiring those persons; instead they are simply brought in to show efforts were made to achieve X goal. One reason this  is less likely to present itself is that schools spend a couple thousand dollars on travel and food expenses for each candidate brought in for a day of interviews, plus the value of the time for each of the faculty members spending any time with that candidate. Hiring faculty is a costly and time-sucking endeavor.  To be sure, some colleagues may feel fine with externalizing those costs onto their faculty, but it's not a best practice, so far as I can tell!

Updated (again): Lincoln Jonah Markel is now on the scene.

With gratitude and joy, Wendi, Benjamin, and I are thrilled to announce the arrival of Lincoln Jonah (Hebrew: Yonah Makahbi) Markel, who surged into our life Wednesday last night  (10/13) at 7:07pm, weighing 7lb 3oz, and measuring just under 20 inches. Mommy and LJ are doing well. Many thanks to the incomparable Dr. Andrea Friall and the wonderful team at TMH, as well as the many friends, colleagues, and family helping out while we get things sorted! Picture and elaborate explanation for the names (spoken words at the naming ceremony at Shomrei Torah on 10/20 at LJ's bris)  appear after the jump:

D:

First, thanks so much to all of you for being part of our family here in Tallahassee. We're so grateful you could be here to share with us this incredible simcha. Before Wendi and I share some thoughts about our son’s name, I want to highlight the co-incidence, the wonderful timing, of the brit milah (the covenant with God and our people) that our son just entered. Every week, Jews around the world read a portion of the Hebrew Bible, the Torah, in rough synchronicity. This past Shabbat, we read from the portion Lech Lecha, in which Abraham, the father of the Israelite religion and his son Ishmael, were circumcised. This coming Saturday on Shabbat, we will read VaYeira, the portion in which Isaac, Abraham’s son who becomes the second patriarch of the Jewish people, enters into the covenant with God. Isaac entered into the brit on the eighth day of his life, and for that reason, Jews ever after have had the Brit Milah on the Eighth day too. So we are thrilled that your Brit, our beautiful son, can coincide with the auspicious timing of reading about the origins of the brit in the weekly torah portion.

Wendi:

Lincoln Jonah, you are named for a notable historic figure, a truly great human being, my grandma, Lorraine Jacobs.  Without any qualification or exaggeration, I can tell you that my grandma was one of the best people ever.  Where do I begin?  She was funny, so funny, and she laughed with such dedication and fantastic intensity that her nostrils would flare, just like mine do, and maybe yours will, too.   Even though she’d had double knee replacements, she never complained, and she used to get down on the floor to play “house” with me, with my dollhouse.  Playing “house” was a little different with my grandma.  It was actually “Peeping Tom” that we would play, and she would peek in the windows with one of my brother’s action figures, and say, “Hello, I can see you!” which would cause me to collapse in giggles.  My mom observed this version of “house” once and said, “Ma, what in the world are you doing?”  And grandma said, “She loves it, Donna, let her enjoy.”  The same lack of discipline was applied to the fact that I loved to eat out all of the pie filling or all of the apples of the apple cake without touching the dough or the cake part.  Grandma probably knew it was me, but she blamed my dad anyway.  When he told her I was the culprit, she’d just laugh and shrug, “Oh, she loves my apple cake.”  Her love for me and my brothers was fierce, funny, and without fail.  We have a million wonderful stories that we share about my grandmother, and they will be a part of your heritage and your upbringing as well.  She passed away more than a decade ago but we still think about her and miss her humor, her hugs, her feisty spirit, her generosity, and her love each and every day.  She would have loved you, Lincoln, and you too, Benjamin, more than you’ll ever know and we know she is sharing this moment with us today, cognizant that her zesty spirit lives on in our family.  

LJ, your name Lincoln resonates with us in other meaningful ways as well. For example, Lincoln Road was a place in Miami where Abba and I have had many happy times, walking up and down the pedestrian streets, sharing meals at the Books and Books cafe, gorging on gelato, coffee and snacks with each other, as well as with close friends and family. 

And, as you’ll learn in school one day, once you are diaper trained and all, Abraham Lincoln, 16th president of the U.S., was widely known for his upright character, decency, and wisdom, and we hope we’ll merit the chance to see you manifest these traits over the course of your life, long may you flourish. Lincoln was also instrumental in facilitating the end of slavery in the United States and thereby helping envision a new political order of equality and freedom. Because part of my work involves working with victims of human trafficking, and educating against all forms of human exploitation, I find a special significance in naming you after someone who so deeply catalyzed a world of greater justice.

We hope you’ll heed Lincoln’s famous aphorism of trying to live a life well lived. He said in words that still ring powerfully: “I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live by the light that I have. I must stand with anybody that stands right, and stand with him while he is right, and part with him when he goes wrong.” Another statement by Lincoln also serves as a guidepost in the uncharted landscape of life: I want it said of me by those who knew me best, that I always plucked a thistle and planted a flower where I thought a flower would grow.

 

One last point about your first English name, Lincoln: Abba and I both cherish our connection to our people and the faith and practices that unite us across time and space. Each one of us is not only a link in the chain of the Jewish people, but also a link to the rest of humanity and in those links are also our tethers, our obligations, our duties as responsible stewards for our fragile and frequently broken world.  For this reason, we also love the nickname “Linc” and hope that you will be the next link in the chain of the longstanding history of our people, participating in those glorious achievements, sharing them with the world, and all the while, learning from our mistakes and those of others.

 

Danny:

Sweet boy, your middle name, Jonah, means “dove” in Hebrew, which the world over serves as a symbol of peace.  During their college years, Mommy focused heavily on Peace and Conflict Studies and Abba worked on issues of inter-ethnic and inter-racial dialogue, all aimed at the promotion of a more peaceful world, genuinely respectful of the enlivening differences characterizing the quilt of humanity.  We hope, Lincoln Jonah, that you will be a force for peace, honesty, goodness, joy, and connection to the Jewish people.

Lincoln Jonah, your Hebrew name will be Yonah Maccabee. Yonah, as we just said, symbolizes a dove or peace. Yonah was also one of the prophets whose story we read every Yom Kippur, our most solemn day. Like the person of Lincoln himself, the Biblical figure of Yonah presents complications. First, he was a reluctant prophet. But that’s not so bad, right? Maybe that means he’ll bring a healthy dose of skepticism and caution to claims of puffery and charlatans. And sure, he managed to get swallowed by a big fish. LJ, let it be a lesson that you should avoid sailing the high seas, especially without a life jacket! Your mommy will rightly worry… But let’s put things in perspective. Yonah was also responsible for bringing understanding and enlightenment to the people of Nineveh, and by virtue of his roar of prophecy, the people of Nineveh repented and thus were spared. So, Yonah, our hope is that like Jonah the prophet, you’ll be able to hear wisdom, investigate its claims, and share it widely and persuasively with the people around you.

LJ, your second Hebrew name is Ma’kahbi, which would be rendered in English normally as Maccabee or transliterated as Makahbi. In selecting this second Hebrew name, we had in mind Abba’s Zaidy Max Markel, who would be your paternal great grandfather. Zaidy Max’s Hebrew name was Mordechai, a name now proudly shared by your cousin Ari, the son of your Aunt Shelly and Uncle Ian. And of course, you now have a new cousin Max, the son of Uncle Rob and Aunt Haritha.

So what’s the story with Makahbi? Well, in popular Jewish lore, Makahbi signifies a hammer, a sign of strength, heroism, and to a degree, nationalism or pride. The dynastic Tel Aviv basketball team, unsurprisingly, is the Makahbi Electra Tel Aviv. This connection to the Maccabee family, whose good deeds and works we celebrate during Hanukkah, is one that we think my Bubbie Helen would have cherished, such was her love of Am Yisroel, the Jewish people. The Maccabee family is commonly thought to have led a Jewish rebel force against the Seleucid Empire.  Through their might and wisdom, they re-established control over parts of the Land of Israel, and therein created space for an authentic Jewish political presence there instead of the faux Hellenized version then prevailing, a life of oppression in which celebrating the Sabbath or observing the Brit Milah was forbidden. The Makahbi rebels should be regarded by you, sweet boy, as catalysts for religious freedom and cultural expression, and popular self-government.

To be sure, Yonah Makahbi, the details are no doubt more complicated, and it’s not as if we want you to reject the gifts of civilization brought by other peoples. But you should always be critically proud and proudly critical, our young boy, of the rites and markings of our cultural and religious patrimony. Importantly, while we want you to live in and pursue a world of peace, we also recognize that in a rough and tumble world, having a hammer nearby for use as a last resort, will help protect the sphere of liberty in which the blessings of life should be yours and your children’s.

Wendi and Danny:

We love you, Lincoln Jonah. We -- Abba, Mommy and Benben -- love you, Yonah Makabi. Welcome to our world, our community, and our family, the world we must care for, the community we must tend to, and the family we eat up we love so much. Please join us in trying to make this world a better place, by plucking thistles wherever you see them, and planting flowers wherever you think they might grow.

Slicing the snacks thinly

During my weekly seminars, I gently "assign" a week for each student to bring snack(s!) so that the learning experience is a bit more festive and fattening. Today, one of my students brought Baby Ruth candy bars (halloween size), and it is was my first time eating one. Needless to say, my reaction was: wow, this tastes almost no differently than a Snickers. Various students gasped at the suggestion. One student wrote to me after class the following:

Prof Markel:

I found your statement that babyruth and snickers were pretty much the same a little on the upsetting side, so i looked it up.  I found these definitions online:

Snickers is a candy bar made by Mars, Incorporated. It consists of peanut nougat topped with roasted peanuts and caramel covered with milk chocolate

Baby Ruth is a candy bar that is made of chocolate-covered peanuts, caramel, and nougat, though the nougat found in it is more like fudge than is found in many other American candy bars. The bar was a staple of Chicago-based Curtiss Candy Company for some seven decades. ...

so, i guess you're kind of right...

With regret,

XXX

Notwithstanding this small vindication, I know that this offhand slight to the Baby Ruth fans out there will no doubt generate some form of penalty in the end of the semester teaching evaluations :-)

Can Good Prawfs Be Mensches? And some excuses, apologies, and such.

I've been a bit overwhelmed on the domestic front lately between work and non-work stuff to be able to engage meaningfully online on various issues. I've been derelict in writing my response to the wonderful contributions from Professors Harbach, MacDowell and Sack on the blog the other day about Privilege or Punish. I've wanted to weigh in with some thoughts on the Sisk (et al) study. But mostly, I've been thinking, especially with Yom Kippur quickly coming, how one ought to balance the duties of being a mensch (as my grandmother would insist) with doing a good job as a scholar and teacher and colleague.  

There are of course some prawfs who are notoriously menschy and yet remarkably adept in all aspects of their job.  So some might wonder if there's any false tension being posited here. Here was my thinking. With respect to scholarship, it seems that one of the principal ways in which "the ball is being advanced" is by showing the shortcomings of other folks' work in a particular area--usually scholars but also courts or other actors.  This can be done gently or rudely, but it's often nonetheless something that needs to be done in order to be advancing the conversation. The same concern might arise when assessing other peoples' work for purposes of hiring or promotion--one may want to be generous to everybody but you simply cannot and in explaining why some should thrive and some should not, decisions are made and feelings are hurt along the way.

Perhaps this is not the case with teaching (as opposed to grading, where again, I think the tension is more apparent).  Maybe in the classroom one could really be an effective teacher and at the same time be the epitome of sweetness and light. I find this difficult too because sometimes there are discipline issues and sometimes just asking students questions and responding to them with some degree of truth may make them uncomfortable or unhappy.  

Last, to the extent running this blog is part of my professional life, I like to think I use it to facilitate scholarly dialogue, catalyze community building, and provide a venue for reflection and sharing. But on a regular basis (though seemingly less now than the first few years), I have to make decisions (e.g., deleting a comment that goes over "my" line or is inappropriate on a particular thread) that will upset people. Sometimes these decisions affect the content that's up here (e.g., those who disagree with the hiring thread) and sometimes it's the content that's taken down (the mean anonymous comments). It's hard to do this when I know there are bruised egos or other forms of residue to these decisions.  I don't know what the solution is, but like the Rav in Lonely Man of Faith: "All I want is to follow the advice given by Elihu the son of Berachel of old who said, 'I will speak that I may find relief;' for there is a redemptive quality for an agitated mind in the spoken word and a tormented soul finds peace in confessing."  For these concerns and my other faults, dear readers and friends and colleagues and family, I ask your forgiveness and patience. The day is short, but the journey is not over. To that end, I hope that the new year augurs a time of passion and purpose, love and laughter, and that it brings sweetness and wisdom and happiness for all of us. 

 

What Might Retributive Justice Be?

I have a new draft up on SSRN. Those of you teaching criminal law or sentencing law this semester or next may find it of interest as a possible teaching supplement. The paper is titled, What Might Retributive Justice Be?  Here's the abstract:

There are many conceptions of retributive justice. This paper is designed to articulate and defend a particular kind of retributive justice, one that I call the “Confrontational Conception of Retributivism,” or the CCR. This particular conception is political, not comprehensive, and thus is interested in defending the claim that *state* punishment is, as a general matter, warranted as a response to *legal* wrongdoing. Accordingly, the focus is on the legal manifestations of punishment, particularly within a liberal democracy; it is not concerned with justifying punishment in other spheres such as parent-child relations. Related to this account of state punishment is that its contours should be devised principally ex ante and that such punishment should be distributed through actors upon whom there are checks with respect to their remaining discretion.

The paper here is a chapter in a volume forthcoming from Oxford including essays on the theory and practice of retributive justice. My paper in particular is an effort at restating, clarifying and correcting some of my prior work in retributive justice theory. It is, relatively speaking, reasonably short and might serve as a useful introduction for students and scholars wading into contemporary retributive justice theory.

Where are we now with copyrights?

I'm wondering if, post-tenure, I should stop being willing to assign my copyrights to the law reviews/university presses, etc, and just insist that they publish it under a creative commons license  or, more traditionally, that I hold the copyright and they can have the relevant licenses and warranties, and if they don't like it, I'll publish elsewhere.  Do you guys make a fuss about this stuff? Is it worth it? Practically, I feel like it makes little to zero difference in my life since I don't think "breaches" of the typical author-publisher agreements occur and if they do, I doubt they are enforced. (Has anyone had that experience or heard of it happening?) 

That said, I don't see the rationale for giving someone else my copyright for zero compensation -- I'd sooner give it to the public domain... And why is it that the law reviews managed to reduce their work load with respect to shorter articles, but they and the academic presses haven't fully yielded to open-access or more authorial control? Would there be a solution if law schools or universities said they were committed to open-access and that the only scholarship considered for tenure/raises, etc would be that which is published  a) where the author retains copyright and/or b) the publication occurs under creative commons-type licensing scheme?

One thing is true: increasingly authors with good academic presses have been able to negotiate rights to give away their book for free electronically for noncommercial purposes. I think Zittrain, Benkler and Solove were able to do this. And Ethan and Jennifer and I were fortunate to do that too, and so very soon we will be putting Privilege or Punish on the web for free. I hope you consider assigning it to your classes or perhaps more helpfully, using it (gratis) as a leveler for a wobbly table nearby.

Brooks' Blooper With Grinds and Princes

Greetings from beautiful Breckenridge. As some of you already know, I like David Brooks as much as most other liberals reading the NYT.  Today's column, though, didn't work entirely. In it, Brooks divides the world between charming princes who siphon off resources from the public fisc on the one hand and the boorish grinds, on the other hand, ie., those awkward introverted nerds who are responsible for the new businesses or techniques that lead to surges in growth and productivity. The blooper in the piece is that Brooks lumps hedge fund managers into the category of grinds who eschew rent-seeking activity at the corrupted crossroads of markets and politics. He writes:

"The princes can thrive while the government intervenes in the private sector. They’ve got the lobbyists and the connections. The grinds, needless to say, don’t. Over the past decade, professionals — lawyers, regulators and legislators — have inserted themselves into more and more economic realms. The princes are perfectly at home amid these tax breaks, low-interest loans and public-private partnerships. They went to the same schools as the professionals and speak the same language. The grinds try to stay far away and regard the interlocking network of corporate-government schmoozing with undisguised contempt."

If this were true, it wouldn't explain the success of the 2 and 20 crowd in lining their pockets.

 A few months ago there was a piece in the New Yorker by James Surowiecki  that clearly explains the way in which hedge fund managers have managed (ie., lobbied) to ensure that billions of dollars of their income are treated instead as capital gains (and thus taxed at the lower rate). Most folks seem to think this is an asinine policy. If you're a lawyer or investment banker, your income from your occupation is taxed at the regular rates. But if you're a hedge fund manager, much of your income is instead treated as capital gains. Now, I'm plainly not a finance maven but if the characterization of the cushy relationship between hedge funds and the politicians in DC is correct, then it doesn't make sense for Brooks to valorize the hedge fund managers for their lack of politesse, let alone a contempt for well-distributed largesse in the form of political donations.

Prawfsfest! 7 and the economics of workshops

I'm briefly back in Florida having just returned from a quick trip to lovely (though sweltering) Brooklyn, where Prawfsfest! 7 was graciously hosted by the Friends of Prawfs at Brooklyn Law School. We had ten very interesting early works in progress to discuss by (in no order) Chris Lund, Verity Winship, Howard Wasserman, Mike Cahill, Bill Araiza, Giovanna Shay, Marc Blitz, myself, Hillel Levin, and Katy Kuh. Many thanks are due to the deans and Liz Alper for a conference manifesting precision, panache and swag. Special thanks are due to Miriam Baer and Matt Lister, who agreed to sit in as participants for the 2 days even though they weren't presenting. Talk about magnanimity!

As typical with these events, it spurred some thoughts about structure for me. One thing some may know about the structure of the P-fest is the much vaunted (or maligned) "no-foreplay" rule. It seems like the flip-side of foreplay in academic conversations of this sort is some degree of self-flagellation.  You know what this is: "I don't really know anything about this area and so this will be way out there probably" or "this point I want to make is thunderously trivial" when in fact it actually will have devastating consequences for the thesis...These kinds of prefatory comments are the same academic tics as the "so" which begins all sentences, not to mention the use of "robust," orthogonal," and "granular." (All of which are tics I have embraced/been afflicted with at times.) Anyway, when Fagundes famously chastized the no-foreplay rule, he mentioned that in 2 years at UChicago, he never heard a nice thing said about a paper. Yikers. In any event, I wonder if the Chicago folks forbear not only from foreplay but also from the exercises in self-flagellation.

Thinking of Chicago, I'm naturally led to thinking about ... economics, and specifically the economics of this kind of gathering, so I thought I'd share a conversation I had with Mike Cahill last night about a weird re-thinking of P-fests and other gatherings like it along (crude) economic lines. 

So...if you think about the social costs associated with an event like Prawfsfest, it costs somewhere between 10-15,000 dollars in outlays by the host school (roughly 3K for meals and expenses) and the sponsoring schools of the 8-10 attendees (roughly 1K a person in airfare/hotel/miscellaneous expenses). What does each attendee get out of it? Principally, if they're "presenting" a paper, they get smart and helpful comments on a paper that about 9-11 other people have read somewhat carefully at an early stage in the paper's development. They also get the benefit of hanging out informally with other/new prawfs over some meals. In return, they have to travel (or not, if they're from the host school), and offer comments on 9 other papers. It probably takes about 1-2 full work days to prep for Prawfsfest, and then add another day for travel plus 2 days of intensive workshop, and you've got almost a full week devoted to the P-fest.

It struck me that some might look at this situation and say: why not just pay the 10 people to stay home and read the papers from there and share them electronically. On this view, a "host school" (or perhaps 2) would say: we want to encourage exchanges of drafts at early stages, so we'll pay the 10 people 500$ to basically circulate drafts of their own, and circulate comments on the papers electronically. That would only cost 5K, which is a fraction of the social cost otherwise incurred. I see a few possibly positive effects to this. First, if everyone had to comment using comment feature on Word or PDF, then the author can get a sense of whether many people among the 10 or 11 readers agree with the comments of others or not. (Sort of like Facebook's "like" feature on people's comments.) That iterative feedback is only available at live workshops when someone says he wants to "echo" or "piggyback" on the earlier comment, but not everyone wants to do that because it's time away from new points to the conversation too. So perhaps there's some benefit to electronic feedback not normally available in a live setting.

The second effect, which I think only some would view as positive, is that people would be getting a "financial bonus" to do this stuff. This is probably the most controversial aspect of it b/c some might think of it as getting paid more to do something they think they should do otherwise as part of their job. Maybe this would incentivize people to do more scholarship and more "feedbacking" but it's not clear the incentives are marginally more powerful than otherwise existing ones. A third benefit of this "distance-Pfesting" model is the participants could also do it asynchronously with others so it wouldn't require everyone taking the same 2-3 days off of work, and that might allow more flexibility re: scheduling, child care obligations, etc.

The downsides of the distance model seem to be these: a) some people like the travel to conferences, and relish the social interactions aside from the professional work of feedbacking. This seems to be a substantial consideration; b) I think the host school likes the idea of having scholars come to their home to show off the place in a very positive light, and perhaps some have the idea of improving their scholarly reputation by hosting these kinds of events; sending someone a check for 500$ is not necessarily an effective way to win friends or promote the brand you want to create. c) one reason the distance-pfest or "pay to say" model might not be attractive is because the "paying school" doesn't internalize all the benefits but fronts all the costs. Or, in other words, a host school now pays something like 3K to host P-fest, but the costs of airfare/hotels are on the schools of the attending scholars who are not from the host school. This means that the host school gets some benefits (usually 2 of the 10 presenters are from the host school) in exchange for its costs, whereas under the pay-to-say model, the host school would have to pay 5K but the benefits would be dispersed more broadly. This could obviously be fixed over a long-term cooperation agreement with other schools, but it's logistically more complicated...

In any event, with technology it's probably easier to do more distance-pfesting and yet it doesn't happen so far as I know. Is it because of a mismatch of benefits and burdens or because it sounds like no fun at all? Or, is it simply because no one's tried it yet?? As y'all know, I'm always curious to hear feedback and to rethink the formats of these things, so I was wondering about reactions to this possible scenario described roughly above (which, for the record, I don't endorse as a substitute, but perhaps as a supplement to live gatherings such as Pfest!.)

Oped on Taxing Punitive Damages

Happy Canada Day!

Well, I guess now that summer's indisputably here, it's the season for prawfs to start writing more opeds.

As you saw the last few days, Ethan and Eduardo recently penned something for a broader audience. And Ethan also deserves a shout-out for a SCOTUS citation to his criminal juries piece. See McDonald v. Chicago, slip op. 34 n. 28. 

Anyway, here's a link to a short piece in today's NYT by Gregg Polsky, my patient and wise co-author of our forthcoming Taxing Punitive Damages article, and me. I'll post the text below the jump.

Damages Control

By GREGG POLSKY and DAN MARKEL

WHEN corporations like Exxon, State Farm and Phillip Morris lose tort cases, juries occasionally award, in addition to compensation for the plaintiff’s injuries, extensive punitive damages.

But jurors are often unaware that companies are able to deduct those punitive damages in calculating their federal income taxes, saving them millions of dollars and undermining the original goal of the damages: to punish reprehensible corporate behavior.

BP might soon be added to the list of payers of punitive damages for its role in the Gulf oil spill. Perhaps with that in mind, the Senate recently approved a measure to repeal deductibility for punitive damages.

The measure is well intentioned. But because most cases are settled before they reach a jury, it won’t work. Fortunately, there’s a better approach.

When plaintiffs and defendants reach a settlement before a trial, which happens in most cases, they aren’t required to specify which parts of the settlement are punitive and which are compensatory; there is typically just one number. That allows defendants to disguise the amounts that they would have paid as punitive damages as additional compensatory damages.

And because the measure maintains the deductible status of compensatory damages, nearly all punitive damages will remain, as a practical matter, deductible. This easy circumvention surely explains the meager revenue projections from the measure: $315 million over 10 years.

While the Internal Revenue Service might try to dissect settlements and classify portions of them as punitive damages, to do so it needs help from both parties to the negotiation. The problem here is that plaintiffs have no incentive to characterize the settlement correctly. Indeed, in cases involving personal physical injury, plaintiffs are better off tax-wise by characterizing the settlement as entirely non-punitive because, while the punitive damages they receive are subject to tax, the compensatory damages are not.

Put a different way, the root of the problem is that jurors tend to believe that punitive damages are not deductible, even though they are. So why not have plaintiffs’ lawyers make jurors aware of the tax deductibility of punitive damages, and teach them how to adjust their awards to offset the deduction’s effect? While plaintiffs’ lawyers don’t do this now, there is no precedent or persuasive legal argument that prevents them from doing so.

Such “tax-aware” juries would probably award higher punitive damages to offset the fact that punitive damages were tax-deductible. But more important, the prospect of tax-aware jurors would also raise the amounts of settlements before trial — when, again, most cases are actually resolved. This is because the amount of a settlement depends on the amount that a jury is expected to award after a trial. If tax-aware juries became the norm, plaintiffs would push for higher settlements, and thus both settling and non-settling defendants would bear the correct amount of punishment. Under the Senate’s approach, in contrast, only the very few non-settling defendants would bear that punishment.

The tax-awareness approach is by no means perfect. It requires juries to determine yet another fact during punitive-damages proceedings, namely the defendant’s marginal tax rate. It also increases the sizes of recoveries to punitive-damage plaintiffs and their lawyers, which is either a good or a bad thing, depending on your perspective. Nevertheless, given the practical futility of the Senate measure, tax-awareness is a far better approach to solving the problem of under-punishment.

There is a good chance that the Senate measure will become law, if only because the public is exasperated by the BP fiasco and Congress desperately needs revenue, even a relatively small amount. But if it does, it will be yet another example of expedient politics trumping sound policy.

Gregg Polsky and Dan Markel are, respectively, law professors at the University of North Carolina at Chapel Hill and Florida State University.

The Senate has mucked things up--hopefully the House won't follow suit

(This post is by Prof. Gregg Polsky and me.) 

Yesterday, the Senate passed an amendment that would make punitive damages paid by businesses nondeductible for tax purposes.  The nondeductible rule is intended to pay for a 90 day extension of the home buyer's tax credit.  On the face of it, this seems like a great idea--after all, why should defendants get tax breaks for malicious or reckless wrongdoing?

But as we've recently argued in our forthcoming paper, Taxing Punitive Damages,  a rule of nondeductibility is the wrong approach. It would be easily circumvented by defendants through settlements that disguise punitive damages as additional compensatory damages. Indeed, easy circumvention is fully consistent with the measly revenue projections from the rule:  a mere $315 million over 10 years.  It would be far, far more effective, in our opinion, to allow plaintiffs to introduce tax evidence against the defendant in the punitive damages phase and encourage juries to "gross up" damage awards to offset the effect of deductibility.  As we explain, a number of other factors (including concerns for federalism and regulatory diversity) also push in favor of our proposed solution over a rule of nondeductibility.      

To be sure, a nondeductibility rule looks good superficially (especially at a time when people are foaming at the mouth for Obama and the feds to do *something*). And no question, the need for immediate projected revenue (no matter how pitifully small) is great.  So while we think there's a decent chance the Senate's proposal will go through, despite its significant real-world flaws, we will be trying to explain along the way why the better strategy in this case is to do nothing and let the states work this out on their own. If it passes, we'll be joining the Office of the Repealer for these limited purposes!  

P.S. The new draft on SSRN contains a response to Professor Geistfeld's interesting critique of our paper.