Saturday, August 20, 2011
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
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.
Posted by Dan Markel on August 20, 2011 at 03:05 PM in Article Spotlight, Blogging, Dan Markel, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink
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Monday, August 01, 2011
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?"
Posted by Dan Markel on August 1, 2011 at 11:44 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink
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Thursday, July 21, 2011
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.
Posted by Dan Markel on July 21, 2011 at 09:55 AM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory, Life of Law Schools | Permalink
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Monday, July 18, 2011
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
Posted by Dan Markel on July 18, 2011 at 01:38 PM in Article Spotlight, Dan Markel, Retributive Damages, Tax, Torts | Permalink
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Thursday, July 14, 2011
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
Posted by Dan Markel on July 14, 2011 at 04:55 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink
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Tuesday, June 07, 2011
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.
Posted by Dan Markel on June 7, 2011 at 02:45 PM in Current Affairs, Dan Markel, Law and Politics | Permalink
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Tuesday, May 31, 2011
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?
Posted by Dan Markel on May 31, 2011 at 12:11 AM in Criminal Law, Dan Markel, Legal Theory | Permalink
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Thursday, May 26, 2011
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.
Posted by Dan Markel on May 26, 2011 at 11:49 PM in Article Spotlight, Blogging, Current Affairs, Dan Markel | Permalink
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Tuesday, May 24, 2011
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...
Posted by Dan Markel on May 24, 2011 at 11:12 AM in Blogging, Dan Markel | Permalink
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Wednesday, May 11, 2011
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.
Posted by Dan Markel on May 11, 2011 at 01:44 PM in Article Spotlight, Culture, Dan Markel, Film, Legal Theory | Permalink
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Sunday, March 06, 2011
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.
Posted by Dan Markel on March 6, 2011 at 08:22 PM in Criminal Law, Culture, Current Affairs, Dan Markel | Permalink
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Tuesday, January 18, 2011
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.
Posted by Dan Markel on January 18, 2011 at 07:22 PM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory, Retributive Damages | Permalink
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Thursday, October 28, 2010
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!
Posted by Dan Markel on October 28, 2010 at 03:39 PM in Dan Markel, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink
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Tuesday, October 05, 2010
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:
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...
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 :-)
Posted by Dan Markel on October 5, 2010 at 08:54 PM in Blogging, Dan Markel | Permalink
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Friday, September 17, 2010
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.
Posted by Dan Markel on September 17, 2010 at 12:05 PM in Dan Markel | Permalink
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Tuesday, September 07, 2010
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.
Posted by Dan Markel on September 7, 2010 at 09:05 PM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory | Permalink
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Thursday, August 12, 2010
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.
Posted by Dan Markel on August 12, 2010 at 11:52 PM in Blogging, Dan Markel, Information and Technology, Intellectual Property | Permalink
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Tuesday, July 13, 2010
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.
Posted by Dan Markel on July 13, 2010 at 08:34 PM in Article Spotlight, Current Affairs, Dan Markel | Permalink
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Thursday, July 08, 2010
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!.)
Posted by Dan Markel on July 8, 2010 at 07:56 PM in Blogging, Dan Markel, Life of Law Schools | Permalink
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Thursday, July 01, 2010
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.
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.
Posted by Dan Markel on July 1, 2010 at 12:30 PM in Article Spotlight, Current Affairs, Dan Markel, Retributive Damages, Tax, Torts | Permalink
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Thursday, June 17, 2010
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.
Posted by Dan Markel on June 17, 2010 at 11:10 PM in Article Spotlight, Current Affairs, Dan Markel, Retributive Damages, Tax, Torts | Permalink
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Wednesday, June 09, 2010
Time delayed sentencing gets off the ground!
Thanks to Tony Sebok, my attention was just adverted to United States v. Bueno, a recent
opinion by Judge Baer (SDNY) involving the sentencing of an irreplaceable caregiver. Bueno has 3 young kids and her husband was also convicted and sentenced, leaving no other available and willing caregivers. As a result, Judge Baer effectively (though unwittingly) implemented the time delayed sentencing idea that Ethan, Jennifer and I proposed in our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The book takes a relatively critical eye toward the idea that caregivers as such should receive sentencing discounts but when there are irreplaceable caregivers who commit crimes that warrant incarceration, that period of incarceration should occur after the caregiving vacuum is filled. In the Bueno case, Judge Baer basically deferred the custody and supervised release of Bueno for 3 years or until an alternative can be found.
My own sense is that this is both too lenient and too harsh (although not terribly so). I would allow the delay to take place until the caregiving need is filled (ie., until the youngest current child is 18). But I would also place some modest restrictions on the liberty of Bueno during that period of delay so that Bueno herself and others do not think she is able to enjoy a "windfall" based on the benefit created by the time-delay before sentencing. In other words the defendant would have to endure some extra sanctions to enjoy the benefit afforded by the delay in the sentence. Of course, if the conditions associated with supervised release could be imposed prior to the incarceration, then the defendant is really only engaged in some time-shifting, and perhaps that's acceptable because the state itself recognizes the social benefit of that shift and that the principal beneficiaries of that are innocent third parties, not the defendant himself or herself.
In any event, this view might be somewhat controversial. Professors Ristroph and Murray seem to think (per their critique in the YLJ) that obligations to care are basically fungible with obligations to serve time. We reject that argument in no uncertain terms in our reply, which you can find here. Are we right?
Posted by Dan Markel on June 9, 2010 at 01:51 PM in Article Spotlight, Criminal Law, Dan Markel, Privilege or Punish | Permalink
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Thursday, May 27, 2010
Reminder: Crim Prof Conference at Law and Society Today thru Sunday in Chicago
Note: Bumped to the front from last month.
those of you coming to Law and Society in Chicago should note that the following 12 panels will be part of the "shadow CrimProf" gathering that Alice Ristroph and I have tried (somewhat ineptly) to assemble in the face of the staggeringly odd Law and Society panel rules. I'm excited to say that we have drawn about 50 scholars from schools across North America. I encourage you to attend as many of these panels as possible. The panelists themselves will have exchanged drafts of their papers about a week or so before the time of the conference. If you see a panel paper you would like to read, and it's not on SSRN already, then please contact the author in advance of the conference so that person will benefit from your feedback at the time of the conference, if at all possible.
You'll notice we have four book panels out of the 12 conference panels. Two of the book panels (Dripps and Slobogin) are roundtables relating to manuscripts; two of them are for books that were recently published (Bergelson and Logan). This is something I hope we can replicate in future iterations of this conference. I hope we'll be able to have a happy hour in Chicago related to this gathering--more info on that shortly. After the jump: the schedule with the appropriate code #'s for sessions, and the participants and their papers.
Thursday May, 27
8:15am to 10:00am
Police and the Courts: Judicial Management and Evaluation of Law
Enforcement Activity 1110
Building: Renaissance, Room: tba 10
Chair: Richard E Myers (University of North Carolina)
The Perennial Police Gaming Problem and the Need for
Articulation-Forcing and Data-Development Rules in Constitutional
*Mary D. Fan (American U/U of Washington)
GPS Tracking as Search and Seizure
*Bennett L. Gershman (Pace University)
Rethinking Reasonable and Articulable Suspicion
*Richard E Myers (University of North Carolina)
Judging Police Lies: An Empirical Perspective
*Melanie D. Wilson (University of Kansas)
10:15am to 12:00pm
Author Meets Reader--Juvenile Justice: The Fourth Option, by Mark
Fondacaro and Christopher Slobogin 1212
Building: Renaissance, Room: tba 12
Chair: Hillary B. Farber (Northeastern University)
Author: Christopher Slobogin (Vanderbilt University)
Reader: Tamar R. Birckhead (University of North Carolina, Chapel Hill)
Reader: Daniel Filler (Drexel University)
Reader: Melissa Hamilton (University of Toledo)
Reader: Giovanna Shay (Western New England College)
2:30pm to 4:15pm
Criminal Law 01--Children and Families in Criminal Law 1410
Building: Renaissance, Room: tba 10
Chair: Tamar R. Birckhead (University of North Carolina, Chapel Hill)
Competence and Compellability of Parents as Witnesses against Their
Children: A Comparative Perspective between the United States and
*Hillary B. Farber (Northeastern University)
*Catherine M. Grosso (Michigan State University)
Domestic Violence and State Intervention in the American West and
*Carolyn Ramsey (University of Colorado)
Chasing Science: The Troubling Case of Shaken Baby Syndrome
*Deborah Tuerkheimer (DePaul)
Discussant: Melissa Hamilton (University of Toledo)
Friday May, 28
8:15am to 10:00am
Criminal Law 02--Author Meets Reader--Bentham to Blackstone: The
Nineteenth Century Transformation of Criminal Justice, by Donald
Building: Renaissance, Room: tba 10
Chair: Carolyn Ramsey (University of Colorado)
Author: Donald Dripps (San Diego Law School)
Reader: Katherine Darmer (Chapman University)
Reader: Andy Leipold (University of Illinois, Champaign)
Reader: Wes Oliver (Widener University)
Reader: Ronald Wright (Wake Forest University)
10:15am to 12:00pm
Criminal Law 03--The Agents and Subjects of Criminal Law: Officers,
Entities, and Individuals 2210
Building: Renaissance, Room: tba 10
Chair: Dan Markel (Florida State University)
Torture and Cognitive Illiberalism
*David Hoffman (Temple University), Dan Kahan (Yale
University), Donald Braman (George Washington University), Ryan Goodman (New York
Punishing Entities (Civilly)
*Dan Markel (Florida State University)
Bill Stuntz and the Principal-Agent Problem in American Criminal Law
*Richard H. McAdams (University of Chicago)
12:30pm to 2:15pm
Criminal Law 04--Author Meets Reader--Victims’ Rights and Victims’
Wrongs: Comparative Liability in Criminal Law, Vera Bergelson 2310
Building: Renaissance, Room: tba 10
Chair: Anthony M. Dillof (Wayne State University)
Author: Vera Bergelson (Rutgers University, Newark)
Reader: Luis E. Chiesa (Pace University)
Reader: Brian Gallini (University of Arkansas)
Reader: Cecelia Klingele (University of Wisconsin)
Reader: Susan Rozelle (Stetson University)
2:30pm to 4:15pm
Criminal Law 05--Problem Solving in Criminal Justice 2410
Building: Renaissance, Room: tba 10
Chair: Eric J Miller (Saint Louis University)
Quasi-Crime and Quasi-Punishment: Criminal Process Effects of Immigration Status
*Gabriel Jack Chin (University of Arizona), Doralina Skidmore
(University of Arizona)
Another Glance toward the Mentally Ill Offenders: Should We Change Departments?
*Renata F de Oliveira (Universidade do Minho), Rui A. Gonçalves
(Universidade do Minho)
Supervision Courts: Rethinking the Rationale for the Problem Solving
*Eric J Miller (Saint Louis University)
Advising Defendants on the Immigration Consequences of Criminal
Convictions: Whose Role Is It, Anyway?
*Yolanda Vazquez (University of Pennsylvania)
Saturday May, 29
8:15am to 10:00am
Criminal Law 06--Criminal Procedure: Adjudication 3110
Building: Renaissance, Room: tba 10
Chair: Adam M Gershowitz (University of Houston)
Judging DWI Trials: The Case for Eliminating the Right to Jury Trials
for Misdemeanor DWI Cases
*Adam M Gershowitz (University of Houston)
Double Jeopardy and Mixed Verdicts
*Lissa Griffin (Pace University)
*Caren M Morrison (Georgia State University)
Big Law's Sixth Amendment: The Movement of the White-Collar Bar into
Large Law Firms
*Charles Weisselberg (University of California, Berkeley), *Su Li
(University of California, Berkeley)
10:15am to 12:00pm
Criminal Law 07--Punishment Theory 3210
Building: Renaissance, Room: tba 10
Chair: Marc O. DeGirolami (St. John's University)
Punishment, Permissibility, and State Intention
*Vincent Chiao (Harvard University)
Criminal Theory as History of Ideas: The Thought of James Fitzjames Stephen
*Marc O. DeGirolami (St. John's University)
Free Will Ideology and the Moral Status of Punishment
*John Humbach (Pace University)
*Jeffrey Renz (University of Montana)
Discussant: Matthew Lister (University of Pennsylvania)
2:30pm to 4:15pm
Criminal Law 08--Topics in Criminal Law Theory 3410
Building: Renaissance, Room: tba 10
Chair: Mark D. White (CUNY, College of Staten Island)
Modal Retributivism: A Theory of Sanctions for Attempts and Other
*Anthony M. Dillof (Wayne State University)
You Know You Gotta Help Me Out
*David Gray (University of Maryland)
The War on Drugs Turns 40
*Alex Kreit (Thomas Jefferson School of Law)
Tailoring Objective Standards to Individuals
*Kevin C. McMunigal (Case Western Reserve University)
The Law, Economics, and Philosophy of Double Jeopardy Protection
*Mark D. White (CUNY, College of Staten Island), Kaia Huus (CUNY,
College of Staten Island)
4:30pm to 6:15pm
Criminal Law 09--Race and Criminal Justice 3510
Building: Renaissance, Room: tba 10
Chair: Brooks Holland (Gonzaga University)
Masculinity and the Gates Arrest: Two Professors Share Their Experiences
*Frank R Cooper (Suffolk University), *Josephine Ross (Howard University)
Racial Profiling and a Punitive Exclusionary Rule
*Brooks Holland (Gonzaga University)
The North Carolina Racial Justice Act Study: Preliminary Findings on
the Role of Race in the North Carolina Capital Punishment System
Catherine M. Grosso (Michigan State University), *Barbara O'Brien
(Michigan State University)
Under the Influence: Implicit Bias, Proactive Policing, and the Fourth Amendment
*L. Song Richardson (DePaul University)
Discussant: Rick Banks (Stanford University)
Sunday May, 30
8:15am to 10:00am
Criminal Law 10--Author Meets Reader--Knowledge as Power, by Wayne Logan 4105
Building: Renaissance, Room: tba 05
Chair: Corey Rayburn Yung (John Marshall Law School)
Author: Wayne Logan (Florida State University)
Reader: Arnold Loewy (Texas Tech University School of Law)
Reader: Mary Kreiner Ramirez (Washburn University School of Law)
Reader: Monica Williams (University of California, Davis)
Posted by Dan Markel on May 27, 2010 at 12:07 AM in Criminal Law, Dan Markel, Legal Theory, Life of Law Schools | Permalink
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Monday, May 17, 2010
Earlier this evening, I had a chance to read the new SCOTUS opinion in Graham (invalidating life without parole sentences for juveniles convicted of nonhomicidal crimes) and it's a doozy. I'm supposed to write something up on Graham over the next month for the Federal Sentencing Reporter, where Michael O'Hear is hosting a gathering of folks to offer some short reflections on the significance of Graham. The group includes scrubs like me alongside Rachel Barkow, Richard Frase, Alice Ristroph, John Stinneford, Jae Lee, Eva Nilsen and David Gray.
Unsurprisingly, Doug Berman's already had a lot of interesting reactions to Graham over at the SLP blog. And over at Concurring Opinions, Jae Lee has highlighted a key paragraph from the majority's opinion that potentially paves the way for eroding the silly death is different jurisprudence. Certainly Justice Thomas' sharply written dissent seems to concur with Jae! If they are right about what Graham augurs, and I think and hope that they are, then it also means that we'll be able to see the logic of Panetti v. Quarterman (no execution of the presently incompetent) get some traction outside the death penalty context, a point I explored and argued for in this article from last year. Stay tuned for more on the doctrinal specifics of that to come.
Posted by Dan Markel on May 17, 2010 at 10:53 PM in Article Spotlight, Blogging, Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel | Permalink
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Sunday, May 09, 2010
On Kagan and HLS Hiring, Again...
I've been off the box the last few days but, as I'm catching up, I see that there's a bit of a tempest lately over the hiring record of Elena Kagan while she was Dean at Harvard Law School. A year ago, as Kagan's name was on the shortlist for the seat that would become Sotomayor's, I called attention on this blog to some comments from apparatchik Wendy Long, who argued that Kagan shouldn't receive credit for creating intellectual diversity on the HLS faculty since only 3 of her hires were conservatives or libertarians (Goldsmith, Vermeule, and Manning). Now a number of profs are challenging (if not exactly attacking) Kagan because her hiring record at HLS is viewed as sub-optimal with respect to women and minorities. UPDATE: Kagan is now being reported as nominee for SCOTUS.
When I wrote my initial post, I noted that the arguments against Long would also be relevant to the arguments that could be made on other grounds related to diversity even though some differences between the two sets of arguments could plausibly be advanced. Now that those challenges have come to pass, it seems there are a few points worth reiterating and bearing in mind before casting aspersions on Kagan's commitment to diversity.
First, the dean of HLS (like other law schools) cannot simply appoint persons to the faculty of her choosing. There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance.
Second, if the number of conservatives or libertarians (or women or minorities) hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long (just like the new batch of critics) provide no information on the number of offers made but rejected to the target groups. Third, if a faculty wishes to improve itself, it is trying to think about hiring in terms of whether the prospective candidate is "above the median" of the existing faculty. That's a pretty high standard for a school like HLS and it may well be that the people who satisfy those criteria (whether conservatives or others) are so valued by the institutions where they are currently that going to HLS would require a substantial paycut (since, bracketing toys such as housing deals, HLS pays roughly along the lines of seniority). Now perhaps seniority is a dumb way to calibrate compensation, but one can imagine that it has some benefits too, such as helping protect the institution from claims that it discriminates (via pay differentials) against faculty members on the basis of race/ethnicity or ideology.
In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any substantial way on the grounds of the faculty hired during her tenure as dean. Problems in faculty hiring are the product of a "they," not a she. (Conversely, if Kagan were to trumpet her faculty hiring as an achievement that redounds only to her credit, such claims should be also dismissed.)
That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice. Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian (or female or minority) student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? If the answers to those questions are yes, then those are marks of a good dean. (There are some suggestions the answer is no, here, btw.) And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But we should be careful in the end not to conflate the achievements and virtues of a good dean with the achievements and virtues that conduce to being a good Justice.
Posted by Dan Markel on May 9, 2010 at 11:51 PM in Article Spotlight, Blogging, Constitutional thoughts, Current Affairs, Dan Markel, Life of Law Schools | Permalink
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Wednesday, May 05, 2010
Some Critics Weigh In on Privilege or Punish (Version 2: Yale LJ)
As alluded to almost a year ago, the April 2010 issue of the Yale Law Journal (website) now has links to two very interesting review essays of Privilege or Punish: Criminal Justice and the Challenge of Family Ties, my book with Jennifer M. Collins and Ethan. The first essay is by Prof. Alafair Burke (Hofstra) and it is titled, When Family Matters. Go ahead and throw Alafair a few downloads over here on SSRN. The second review essay, by Professors Alice Ristroph (Seton Hall) and Melissa Murray (Berkeley), is called Disestablishing the Family. You can download that piece over here on SSRN.
Initially these reviews were supposed to appear with our reply essay in the same issue of YLJ under the "Features" rubric, but b/c of some innocent snafu, our response to these two rich and provocative pieces will actually appear a bit later this spring--I believe in the June issue. For those of you keen to see it beforehand (hi sis!), we've just posted a penultimate draft of that piece on SSRN, and it is entitled Rethinking Criminal Law and Family Status. I hope to blog a bit more about the substance of this exchange over the coming weeks. In brief, though, Part I of our Essay defends our "equal protection" model for analyzing family status against the "j'accuse" of statism made by R-M. Part II plays offense against R-M's proposed model to disestablish the family, and Part III engages Prof. Burke's critiques about the book's argument and scope. Needless to say, we are grateful to YLJ for hosting this exchange and to Alice, Alafair, and Melissa for the effort and verve with which they've engaged our work.
P.S. As mentioned before, you can find another robust exchange of ideas about the arguments in our book in this symposium in the New Criminal Law Review (featuring criminal and/or family law gurus Doug Berman, Naomi Cahn and Jack Chin).
Posted by Dan Markel on May 5, 2010 at 06:51 PM in Article Spotlight, Books, Criminal Law, Dan Markel, Ethan Leib, Privilege or Punish | Permalink
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Monday, May 03, 2010
Geistfeld on Polsky and Markel's Taxing Punitive Damages
Over at the TortsProf Blog, NYU Prawf, Mark Geistfeld, just posted an interesting set of reactions to the draft of Taxing Punitive Damages that Gregg Polsky and I have posted on SSRN. Thankfully, these reactions appeared prior to publication (go SSRN!!) and so, with some luck and the indulgence of our editors, Gregg and I will have the chance to consider and respond to Mark's comments over the next few weeks as we tweak our draft. (Naturally, we invite others to share their thoughts with us too, either online or offline, prior to publication. And if you'd rather hold your fire until after the piece is out, Virginia Law Review runs "In Brief," an online companion that it will use to host responses to our piece, and our eventual reply.)
Mark's comments appear below:
As the academic year winds down, I usually rearrange the piles on my desk in an effort to mark the onset of another summer full of promise and unrealistic expectations. While rearranging the pile “tort-related things I’d like to read when I get a chance,” I came across the article by Gregg D. Polsky & Dan Markel, “Taxing Punitive Damages” (2010) (forthcoming Virginia Law Review). Earlier this semester I had downloaded the manuscript and dutifully placed the printout in the appropriate pile. Since then, I’ve seen passing reference in the media to the apparent absurdity of federal tax rules that permit the deductibility of punitive damage awards—a deduction targeted for elimination in President Obama’s 2011 fiscal year budget. How could punishment plausibly deserve a tax break? The issue is more interesting than I had initially recognized, so I paused to peruse more closely the offerings of Polsky & Markel on the matter.
They make the nice point that if punitive damages are not deductible, then plaintiffs and defendants have an incentive to “disguise punitive damages as compensatory damages in pre-trial settlements.” Doing so decreases the (after tax) cost of settlement for defendants, creating a gain that can then be shared by the settling parties. By way of extended analysis, Polsky and Markel go on to conclude that the best way to solve the “under-punishment problem” created by deductibility is not to eliminate the tax break, as everyone had previously concluded, but instead to apprise juries of the deductibility issue so that they will “gross up” the punitive award to offset the tax break.
Largely missing from the analysis, however, is discussion of how liability insurance affects the incidence of tort liability. Once this dimension of the problem has been recognized, it becomes apparent that there is a much stronger case against the deductibility of punitive damages.
Consider a world (largely like our own) in which every defendant worth suing has liability insurance covering at least a portion of a tort judgment (or any other form of civil liability that permits the award of punitive damages). Suppose our insured defendant has incurred punitive damages liability. Perhaps surprisingly, this form of liability is not expressly excluded from coverage under the standard-form liability-insurance contracts. Whether the defendant can actually collect on the insurance, however, depends on whether the jurisdiction permits the insurability of punitive damages as a matter of public policy.
Nine or so jurisdictions, including California and New York, prohibit the insurance of punitive damages. In these jurisdictions, any settlement between an insured defendant and the tort plaintiff presumably will allocate the appropriate amount to punitive damages. Regardless of how the defendant and plaintiff would otherwise like to characterize the proportion of compensatory and punitive damages covered by the settlement, the insurer is obligated to indemnify only the former category and accordingly will seek to maximize the portion of the settlement attributable to punitive damages (and excluded from coverage). The insurer usually can police the terms of the settlement directly (the insurance contract gives the liability insurer the right to settle the case). But if the insurer does not fully participate in the settlement, the terms of the settlement would not have preclusive effect in a subsequent coverage dispute with the tort defendant/policyholder regarding the amount of the settlement that is covered by the policy and properly allocable to compensatory damages. The liability insurer, therefore, presumably will monitor the portion of the settlement allocable to punitive damages, effectively precluding plaintiffs and defendants from otherwise manipulating settlements in a manner that would thwart efforts to restore the full “sting” of punitive damages by making them nondeductible.
The argument against deductibility then largely generalizes to the remaining jurisdictions that permit the insurability of punitive damages. The standard-form liability-insurance contracts do not cover liabilities for “expected or intended harms.” In these cases, the insurer can deny coverage altogether—for both compensatory and punitive damages—and so it will not monitor the portion of any settlement properly allocable to punitive damages. In light of the settlement problem identified by Polsky and Markel, the best approach would be to deny deductibility for the entire liability. These instances of intentional wrongdoing clearly implicate the retributive concerns that would create a problem of “under punishment” in the event that the punitive award receives a tax break. Rather than let the litigants manipulate settlements for tax reasons, why not eliminate the tax break altogether for liabilities of this type? Why should these intentional wrongdoers be able to deduct any of their liabilities as a cost of doing business?
Regardless of how one answers this question, the case for nondeductibility remains intact. The public policy concerns implicated by the insurability issue are substantively identical to those posed by the deductibility issue: each allows the tort defendant to distribute the cost of the punitive award to a wider group (other policyholders; other taxpayers). In deciding to permit the insurance of punitive damages, a jurisdiction has concluded that the redistribution afforded by liability insurance does not create any public policy problem of “under punishment.” So, too, in these jurisdictions the redistribution afforded by the deductibility of punitive damages does not create any public policy problem of “under punishment.” Consequently, even if a tax rule of nondeductibility could be largely circumvented by the settling parties as Polsky and Markel conclude, there is no “under-punishment problem” created by the de facto deductibility of punitive damages. This does not mean that the deductibility issue is largely irrelevant. The tax rule against deductibility is still desirable as a federal matter because it furthers the public policy of those states that reject the insurability of punitive damages on the ground that wrongdoers should not be able to redistribute their punishment to others.
Admittedly, I live in a state where punitive damages are not insurable, and the analysis of Polsky and Markel has much more to offer than I have indicated. They artfully unravel the surprising complexity of what appears to be a rather straightforward issue—whether bad behavior deserves a tax break. Clearly, I should have put this article into my “read right away” pile (although that pile, of course, also ends up getting shuffled around at the close of the academic year).
- Mark Geistfeld
Sheila Lubetsky Birnbaum Professor of Civil Litigation
New York University School of Law
Posted by Dan Markel on May 3, 2010 at 11:48 AM in Article Spotlight, Dan Markel, Retributive Damages, Torts | Permalink
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Thursday, April 29, 2010
Punitive Damages and Private Ordering Fetishism
In two recent response essays by distinguished torts scholars, Professors David Owen and Michael Krauss, I was charged with "aggravating punitive damages" and instigating the "death of private ordering."
In seriousness, I have a somewhat more considered and elaborated answer, and I've got a draft of that reply in a new essay up on SSRN by the title of Punitive Damages and Private Ordering Fetishism. I'd be grateful if you could share with me any thoughts or reactions; it weighs in at just under 10,000 words. Here's the abstract, with links to the full conversation after the jump.
This essay is a reply to two recent responses that appeared in the U. Penn Law Review's online companion, PENNumbra by Professors Michael Krauss and David Owen. The essay's principal goal is to clarify some areas where I think Professors Krauss and Owen misunderstood some aspects of my proposed framework for restructuring punitive damages, a framework I developed in two recent articles. Those clarifications address issues including but not limited to how punitive damages law ought to address the wealth or financial condition of the defendant, the defendant’s status as a corporation, settlement dynamics and insurance. Before I answer Professor Krauss’s and Professor Owen’s challenges in those particular domains, however, I begin the essay with some more general observations about what role tort law could and should serve. My hope is that these initial remarks will provide some context for the nature and significance of the particular policy disputes we have with respect to punitive damages law.
You can find the articles Professor Krauss and Owen respond to here:Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239-340 (2009) (available at http://ssrn.com/abstract=991865 )
Markel, How Should Punitive Damages Work?, 157 University of Pennsylvania Law Review 1383 (2009) (available at http://ssrn.com/abstract=1260019
You can find Professor Krauss's Response here:
Michael I. Krauss, Response, “Retributive Damages” and the Death of Private Ordering, 158 U. Pa. L. Rev. PENNumbra 167 (2010), http://www.pennumbra.com/responses/02-2010/Krauss.pdf
You can find Professor Owen's Response here:
David G. Owen, Response, Aggravating Punitive Damages, 158 U. Pa. L. Rev. PENNumbra 181 (2010), http://www.pennumbra.com/responses/02-2010/Owen.pdf
Posted by Dan Markel on April 29, 2010 at 10:31 AM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory, Retributive Damages, Torts | Permalink
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Monday, April 12, 2010
Originalism's Old Bulldog: Notes from Scalia's visit to FSU
I earlier mentioned how Justice Scalia was in Tallahassee (for turkey hunting season) the other day. This was just a day before we had an even more prominent guest at the enrichment series for FSU's faculty -- thanks again for coming here, Tracey :-)
As it happens, I did take some notes during Scalia's presentation, which focused on his "shtick" re: originalism. Ever witty and trenchant, Justice Scalia made a number of good points for his team, and he displayed a masterful command of his material and audience. (Kudos go to AS for taking about 15 unscreened questions from the audience and kudos to the FSU students who asked sharp and prepared questions.) Sorry, Larry, but he said nothing about semantic originalism and the interpretation/construction distinction.
I thought I'd share a few of the remarks that I found especially interesting.
For one thing, I was surprised by Adam Liptak's coverage of Stevens' retirement the next day after Scalia's presentation, because the punchline of the NYT coverage was that Stevens was the last person appointed/confirmed to the SCT on the basis of competence (or independence) as opposed to ideology. Scalia the day before made the point to the crowd that he thought he *was* the last such person, having been confirmed 98-0 by the Senate (with two R's (including Barry Goldwater) not participating in the vote). He offered the view that he didn't think he would be able to get the votes today to be confirmed.
Re: Federalism, I thought Rick Hills would be keen to hear that Scalia's prognosis is that federalism is dead and that Congress can do anything it wants. This ostensibly makes Scalia sad.
Re: Plessy and Brown, he said he thought that Plessy was wrongly decided on originalist grounds, and that Brown would also have been a decision he would have been comfortable voting for on originalist grounds. It's been a while since I read his book on "a matter of interpretation," but I thought it remarkable that he qualified his answer re: Brown with reference to a concern about stare decisis. So, would his faint-hearted originalism lead him to vote in dissent in Brown based on stare decisis? He didn't make that perfectly clear in his remarks, but I thought it a permissible inference that he was saying something like: but for stare decisis, he would have voted in the majority for Brown. Perhaps someone has heard him give a clearer answer elsewhere?
Re: docket selection, he noted that the Court is not in the business of error correction but only uniformity guidance. He said this has been true for at least a century, with a few exceptions: death penalty cases and the Haitian boat people case, because in that situation, they weren't likely to start swimming to New Jersey. I suspect Jack Chin might have something to say about that claim about error correction.
Finally, re: Bock Laundry and textualism, Scalia admitted that that case is often thrown in his face by people thinking he's inconsistent with his textualism, and he even suggested that sometimes that's one of the cases he "wonders" about, i.e., regrets, but in the end, he said, "I am unrepentant."
Posted by Dan Markel on April 12, 2010 at 09:01 AM in Blogging, Constitutional thoughts, Dan Markel, Funky FSU | Permalink
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Bentham on Stilts, now on SSRN
Chad Flanders (SLU) and I have a draft of a newish paper finally up on SSRN. The paper is called Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, and you can find a draft here. A final version is slated to appear in Calif LR in August 2010. Comments are especially welcome before April 21st but there's a good possibility that even after that we'll be able to make some minor tweaks, so please send me (or Chad) your thoughts at any level of specificity. Here's the abstract:
In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.
Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. It seems foolish to deny that they will (although such claims can be exaggerated). What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.
Posted by Dan Markel on April 12, 2010 at 12:58 AM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory | Permalink
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Sunday, April 11, 2010
Vindicating the rise and rise of Jack Chin, and a random thought re: Team Kagan and SCOTUS
He's been too modest to announce it during his blogging stint, and I've been delinquent in announcing it, but the Supreme Court recently embraced Jack Chin's work on the Strickland obligations of counsel to inform defendants of collateral consequences such as deportation. In Padilla v. Kentucky, which was handed down almost two weeks ago, all of the seven Justices cited Jack's 2002 Cornell piece with Richard Holmes. Interestingly, the piece was cited five times across all 3 two opinions (majority, concurring, and dissenting). The majority opinion, written by Justice Stevens, was joined by Kennedy and the rest of the fab 4; Roberts and Alito concurred in the judgment, and Scalia & Thomas dissented. Aside from Jack and Richard's piece, the Court also quoted and cited an amicus brief by prawfs in crim law/proc and legal ethics. Who says there's nothing applicable from the world of scholarship??
The case is important for all criminal defense attorneys advising plea deals. While deportation is the focus of the case, Justice Alito's concurring opinion makes clear that deportation will not be the only "collateral" consequence that will be implicated by the Padilla opinion. That's because it will be hard to restrict the logic here: removal proceedings are concededly a "civil" issue, but the SCT now recognizes deportation as "intimately" if not inextricably connected to criminal convictions. The same can be said of any number of other collateral consequences that attach as a result of conviction (as opposed to simply conduct).
Three other points.
First, I was surprised and, yes, disappointed to see the stingy position taken by the Solicitor General's office in this case: "In the United States’ view, 'counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case,' though counsel is required to provide accurate advice if she chooses to discusses these matters." I was heartened to see that this position was rejected. Everyone's now interested in SG Kagan's views as she is on the shortlist for Stevens' seat. I'm a huge fan of "Team Kagan" as a general matter, but I'm not sure how much this position is expressive of her personal views and what she might argue as a Justice. (My sense is that the position she takes as SG is likely to be closer to what her views actually are than if she were simply a private lawyer, but perhaps that is naive in this situation. That said, understanding that the US is her client, it's not obvious why the US government is not well-served by defendants with full and frank advice about the consequences of plea bargains.)
Second, this case might be a fair data point for Barry Friedman's thesis about the SCt's majoritarian tendencies, since the Court here basically entrenched as constitutionally required a practice that has been espoused as obligated under professional norms and is already a feature of many states' plea bargaining processes. See n. 15 of the opinion, providing cites to over 20 states' laws requiring courts to inform defendants of possibly adverse immigration consequences. While 23 is not 26 or 40, perhaps it's worth noting that Cal, NY, Tex and Fl were among those states cited, so it's likely a majority of the population lives in the states where this happens--probably a better way of representing national majorities than counting states' noses themselves. (Oops: further study shows at least 28 states already adopted the rule in question.) And while I'm thinking about Friedman, I'd be remiss if I didn't also link to Why Law Should Lead, a very interesting and critical take on Friedman's book by newbie UTex prawf Justin Driver in the New Republic.
Third, after reading the dissent by Scalia and Thomas, I was not persuaded by their claim that no principle justifies the extension of Strickland to this situation. This argument of theirs relies on the formality associated with the criminal prosecution and the collateral consequences arising from conviction, such as deportation. Scalia and Thomas rejected formalist distinctions between sentencing fact vs criminal elements in the context of Apprendi-land, culminating in their participation in the majorities for Blakely and Booker (merits). It's not clear why their realism must break here.
Specifically, the dissent in Padilla is wrong to think there's no principle involved here that would justify the requirement of the majority. When punishing someone like Padilla, the state is speaking in a form of communicative retributivism. There's no way of reasonably disclaiming that the deportation is also not part of the communication of condemnation associated with punishment. Absent the conviction, the deportation doesn't occur, and there's no way of justifying the deportation penalty in a manner that is simply a matter of "risk regulation." (The case for risk management would ironically be stronger on the other hand if there were only conduct, not a conviction, that served as the basis for deportation.) Thus as long as the gov't is speaking in that register of condemnation, it is on the hook for justifying that burden as part of its punitive arsenal and it must also provide appropriate levels of procedural safeguards to ensure fairness in the imposition of these sanctions.
Posted by Dan Markel on April 11, 2010 at 02:30 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink
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Wednesday, March 17, 2010
Taxing Punitive Damages, coming soon
My colleague Gregg Polsky and I have a piece called Taxing Punitive Damages that we're pretty excited about, which we've just uploaded finally to SSRN. It's a draft and so we welcome comments and feedback. I may take the liberty of sharing some more of the paper in some coming posts, but in case I don't get to that soon, here's the link to the whole thing, and the abstract appears below:
There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believed they deserved to pay.
To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our view, however, such a blanket nondeductibility rule would, notwithstanding its theoretical elegance, be ineffective in solving the under-punishment problem. In particular, defendants could easily circumvent the nondeductibility rule by disguising punitive damages as compensatory damages in pre-trial settlements.
Instead, the under-punishment problem is best addressed at the state level by making juries “tax aware.” Tax-aware juries would adjust the amount of punitive damages to impose the desired after-tax cost to the defendant. As we explain, the effect of tax awareness cannot be circumvented by defendants through pre-trial settlements. For this and a number of other reasons, tax awareness would best solve the under-punishment problem even though it does come at the cost of enlarging plaintiff windfalls. Given the defendant-focused features of current punitive damages doctrine, this cost is not particularly troubling. Nonetheless, a related paper of ours furnishes a strategy for overcoming this tradeoff through some basic reforms to punitive damages law.
Posted by Dan Markel on March 17, 2010 at 04:58 PM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory, Retributive Damages | Permalink
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Monday, March 01, 2010
Some Critics Weigh In on Privilege or Punish (Version 1: NCLR)
Over at SSRN, I've just posted a bundle of essays that comprise the New Criminal Law Review's symposium on my recent book with Jennifer Collins and Ethan Leib, Privilege or Punish. We are grateful to Professors Doug Berman (OSU, sentencing guru); Naomi Cahn (GW, family guru); and Jack Chin (UArizona, general guru) for their insightful and sharp reactions to our book. The exchange also offers our reactions to these critical challenges in a reply essay. Many thanks to Lindsay Farmer and Mark Penrose and the other good folks at the New Criminal Law Review for hosting this symposium in their pages of the Winter 2010 issue of Volume 13.
The abstract appears after the jump, along with the titles of the essays.
This symposium includes three review essays by Professors Doug Berman, Naomi Cahn, and Jack Chin. The review essays are focused on a recent book by Professors Dan Markel, Jennifer M. Collins and Ethan J. Leib entitled *Privilege or Punish: Criminal Justice and the Challenge of Family Ties* (Oxford 2009). In addition to the three review essays, the collection includes an essay by the book's authors that serves as a reply to this set of critiques. Collectively, we are grateful to the New Criminal Law Review, which is hosting this collection in an upcoming issue.
The essays are titled, respectively:
DIGGING DEEPER INTO, AND THINKING BETTER ABOUT, THE INTERPLAY OF FAMILIES AND CRIMINAL JUSTICE
PROTECT AND PRESERVE?
MANDATORY, CONTINGENT, AND DISCRETIONARY POLICY ARGUMENTS
Collins, Leib & Markel:
(WHEN) SHOULD FAMILY STATUS MATTER IN THE CRIMINAL JUSTICE SYSTEM?
Posted by Dan Markel on March 1, 2010 at 11:39 AM in Article Spotlight, Books, Criminal Law, Dan Markel, Ethan Leib, Legal Theory, Privilege or Punish | Permalink
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Saturday, January 30, 2010
Charity Challenge for Haiti
Update: The Charity Challenge time is almost over but so far Slate's Dahlia Lithwick and some other profs (including Orin Kerr and some of our own permaprawfs) and students have responded to the challenge. Please give generously.
It's not always possible that this blog will jump on major news events, but I'm a bit sorry we haven't had more discussion on the devastation in Haiti or what to do, if anything.
For what it's worth, Wendi, Benjamin, and I want to make some effort to alleviate the suffering and at least right now, we intend to do so financially. With this post, we're issuing a challenge. For now, our family will match contributions until they sum up to total of $1200. So please make a donation between now and the end of January to one of the organizations below and send me some kind of confirmation from the entity via email (markel at law.fsu.edu) and we'll match it.
Feel free to issue your own charity challenge in the comments with information on how people can reach you, and whether you'll adopt the same charities or different ones.
Below the fold are the charities we've selected; feel free to give to any of those 3 for our charity challenge. Of course, you can find and select others for your own challenge up on the NYT site.
AMERICAN RED CROSS
Text “HAITI” to “90999″ to make a $10 donation.
2025 E Street, NW
Washington, D.C. 20006
(800) REDCROSS (733-2767)
AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE
JDC Haiti Earthquake Relief
P.O. Box 530
132 East 43rd Street
New York, NY 10017
PARTNERS IN HEALTH
P.O. Box 845578
Boston, MA 02284-5578
Posted by Dan Markel on January 30, 2010 at 02:35 PM in Current Affairs, Dan Markel | Permalink
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Monday, November 30, 2009
A "disgusting" case of mistaken identity...
The other day Larry Solum registered his reaction to Andy Koppelman's newest piece, Why Jack Balkin is Disgusting (forthcoming in Con Comm): "The title is over the top and in my opinion unprofessional. The reading of Balkin and his critics is surprisingly shallow." As I perused the piece today to see if I'd agree with Larry's assessment, I found that I was listed as one of Balkin's critics. I had one reaction: Huh? How did I get mixed up in this?
Well, according to the text accompanying FN 30 of the piece, I apparently wrote that Balkin “attempts to eliminate the rhetorical power of originalist arguments by making essentially everything an originalist argument.” Did I actually write that? Not quite. It doesn't sound that terrible but I didn't recall writing that. Turns out it was someone else, a person purporting to be named Orin Kerr. Easy mistake, right? And at least someone's citing, if not reading, my posts. But based on that gentle post, if anyone now cares, it's probably more accurate to label me as an anti-anti-Balkinite. Not a big deal, but fwiw I'd prefer in the future not to be quickly lumped with Ed Whelan and Matthew Franck, both of whom attacked critiqued Balkin in the National Review Online. I will do or say a lot in the name of intellectual pluralism, but I won't go *that* gently.
One last thought on L'affaire Koppelman: Balkin's got a great sense of humor (see, e.g., this), and a pre-existing relationship with AK (see, e.g., AK's citation of an email with JB making a (Straussian?) reference to the esoteric teachings of and connections between early and late Balkin), so my guess is that Koppelman got pre-approval from JB on the title. Based on his comments, I guess Larry thinks consent is no defense here. But, as a matter of "professionalism," would that be true, ie., assuming JB gave consent?
update: Sorry, Ed, didn't mean to suggest the exchange was less than cordial.
Posted by Dan Markel on November 30, 2009 at 12:07 AM in Constitutional thoughts, Dan Markel, Legal Theory | Permalink
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Should anyone really care about "ex parte blogging" or editorializing?
Over on Balkinization, Eugene Fidell has a post expressing sympathy with the idea that newspapers and others should forbear from trying to influence the Supreme Court on the same day that the Court is going to hear oral arguments in a case. Fidell seems to be persuaded by the gist of this student note in the Stanford Law Review, which raises ethical concerns with "ex parte blogging."
With no disrepect to the competent job in the student Note, I find myself boggled at the suggestion that newspapers or other writers (including legal bloggers) should abjure from weighing in on matters before the Court. After the jump, I excerpt the guts of Fidell's argument and some reactions.
Still, the spate of day-of-argument editorials stand out: because of their timing they are most clearly addressed to the Justices themselves, rather than to ordinary readers. It is as if the editorial board were submitting an amicus brief--shorter than the real thing, of course, but much later in time--indeed, so late (long after briefing has concluded) that the parties cannot respond unless perchance the editorial's perspective happened to come up in the course of the argument or in the rare case of post-argument supplemental briefing...
Does it matter that The Times and other newspapers engage in same-day editorializing on pending cases? To the extent that members of the bar are not involved, no legal ethics issue is presented. Even if a lawyer were involved, as Comment  to Rule 3.6 of the ABA Model Rules of Professional conduct notes, "the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small. . . ." But even without lawyer participation, the practice implies that the newspaper has influence over the disposition of particular cases and not merely in the court of public opinion. This implication, however subtle and whether or not justified, does not foster public confidence in the administration of justice...
As a friendly observer, my vote would be that newspapers resist the temptation to editorialize on pending appeals on the very day of argument. If a newspaper or other news outlet wishes to influence the outcome, let it do so the old-fashioned way: by hiring counsel and filing a brief like a true amicus curiae. And if it disagrees with the outcome of a case, let it editorialize about the need for corrective legislation or the importance of selecting Justices of a particular bent. But let's allow the Justices a modest and journalistically self-imposed cone of editorial silence on argument days. Journalism and public understanding won't be harmed a bit, and we'll have taken a small step toward underscoring the integrity of the adversary system and what distinguishes the judicial process from other important forms of public decision making in our society.
I'm singularly unpersuaded by the arguments here, but I'm having trouble articulating why--feel free to weigh in with other reasons in the comments. It might be that I don't really accept the gist of limits on ex parte communications... but it is more likely the fact that a blog post (of the sort written or linked to via Scotusblog) or an editorial is a cheap way to get informed commentary out there and that the costs of regulation are likely to exceed any of its benefits. Indeed, informed observers (say, the musings on blogs by legal academics) are not necessarily going to be inclined to file an amicus brief in all cases where such expertise or information would be valuable. It might also be the case that the wealthy and powerful are more likely going to succeed in gathering amicus support than the poor and less powerful; thus if there is a perspective to be shared that might end up being helpful to supporting the "downtrodden" or less popular, I wonder if that's a reason to prefer fewer restrictions (whether based on legal norms, or just social ones).
In any event, less boggling is that Fidell wrote this blog post about the student note. As the Note reports, it was Fidell who passed on to his wife, Linda Greenhouse, former Scotus reporter for the Times, the tip from a blogger that the Court muffed its survey of American law in the Kennedy v. Louisiana case.
P.S. Out of disclosure, I should add that I've met Fidell and Greenhouse a couple times through DC lawyer and social circles, but I doubt they could pick me out of a lineup...
Posted by Dan Markel on November 30, 2009 at 12:03 AM in Article Spotlight, Blogging, Current Affairs, Dan Markel | Permalink
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Friday, November 20, 2009
Best Practices for Appointments Committees
Though it's been a few years since I had to go on the meat market, I'm still pretty keen to make the process for newbies as relatively painless as possible, and this blog has been one way to try to facilitate that goal. I know a number of my perma-prawf colleagues are either veterans of or currently sitting on their schools' appointments committees (appcomm); the same is true for many guest writers and readers of the blog. To that end, I'd like to draw on the collective wisdom of folks here to compile a set of best practices for appointments committees for law school hiring, and to get the ball rolling, I've offered some thoughts below.
In no particular order, I can think of 12, some of which are drawn from the queries/complaints in the job market threads we've been running on the blog. They can be found below, after the jump.
1. Once you have asked a lateral candidate to see if they are interested in being considered, ask the person which three pieces represent their best work that they'd like the appcomm to read. Also ask which pieces signal which direction the work of the person is likely to take in the future. If the candidate is a rookie, ask the same thing if they have multiple pieces, and ask for a research agenda too.
2. If you bring a lateral or rookie candidate in for a job talk, follow-up with an email or call to a) thank the person for traveling and doing the job talk, and b) let the person know when they can expect to hear any news. Set a default rule: if you don't hear from us within X weeks or Y months, you can assume we've moved on to other candidates.
3. Backgrounding: This is something I'd like to solicit feedback on. Some schools probably check only the references provided by the candidate. Other schools are more aggressive (or perform more due diligence?), and many people (both on the committee and off it) will make phone calls to people who know the candidate. These reports are then shared informally or formally at the faculty meeting, leading to discussions of personality (or background--are they likely to come? do they have family or friends in the area?) that may go beyond whether the person would be a good colleague. How much backgrounding is enough or too much? How much prodding should people perform to see if the candidate? Are there good proxies to assess collegiality for laterals, e.g., the number of times they are thanked for reading other people's drafts? the number of times they've taught classes for sick colleagues?
4. If you are inviting a rookie, let them know that you'll reimburse the rookie for all expenses associated with the travel to visit the school, including meals, parking, and other normal incidentals, (including internet at the hotel?).
5. Before the meat market, Appcomm should ask all rookies they are interested in to send them a job talk paper to review before deciding whether to interview them at the meat market. Appcomm should be focused on whether the job talk paper is likely to impress their colleagues prior to deciding to spend 30 minutes of time with them in DC. Making sure the Appcomm only interviews people with papers prior to the meat market will also help Appcomm sift who is likely to be ready from day 1, at least from a scholarship and fire in the belly perspective. The offset to this point is that it assumes the transition rookies are making is from a place where they were able to prioritize writing. This is not true for all candidates obviously. But part of being a successful legal academic (qua scholar) is showing a passion for writing and ideas, and so if you're not in a position where you can write and read scholarship, it helps for you to find that time at the beginning of the day, or evenings, or weekends, etc. You'll often hear that successful scholars are the ones who are thinking of writing and articles in the shower or buying groceries...
6. Give people a reasonable amount of time to decide to accept the offer, but explain to them if you are budget-constrained or timing-constrained because you need to do a lot of hiring and can't necessarily wait for them. Consider the following strategy: Your offer (and proposed course package) is good for a month. However, if you can't accept within that period, check back with us later on, as we might still be interested, though if we are, it's possible your teaching package might have to be altered somewhat.
7. If your school is open to lateral hiring, it's probably better to assign the Appcomm responsibilities from Feb/March to Feb/March rather than July/August to July/August. This allows Appcomm to do a good job of setting hiring priorities before the spring semester is finished and allowing them to scout for laterals (or perhaps misplaced rookies) to bring in for late August, September and October. If the scouting has been done by June for laterals, it still allows appcomm to go through the sheets in August and select which rookies to meet with in DC.
8. If you're not in an intensely geographically desirable location for non-prawf spouses, consider hiring more couples (or trios, etc) on the market.
9. This is primarily relevant to point number one. If you are looking at a lateral candidate, it is probably best to first reach out and ask if they are interested in being considered by your school (in terms of subsequent reading of the person's scholarship), rather than appcomm reading first and then contacting, when the person might not have been interested in being contacted.
10. Related to 1 and 9: lateral prospects will be less offended about being declined pre-campus visit than post-campus visit. Equally important, it is far better for your colleagues to be spared the cost and time of bringing someone to campus if the committee is not already enthusiastic about the work before the on-campus visit is scheduled. In other words, if a lateral is being invited, it should be because the committee fully expects to support that candidate based on their own views of the work and/or teaching evals, etc--and not wait to form those views based on "temperature reads" after the on-campus visit. If the committee doesn't do its homework up front, it costs the school a substantial amount of time and money. My sense is that each on-campus interview requires at least 125 person-hours for a faculty of 30-40 people, including committee time, candidate time, time at the faculty lunch, time preparing to read the person's work, informal post-visit chats, formal post-visit deliberations. The committee, which is already heavily taxed in terms of its own time, should be leery of bringing in people with any unknowns that are knowable; that is, the committee should recognize that the patience of the faculty is thin and the currency of persuasion with the faculty is subject to depletion.
11. Related to 9 and 10: If you're contemplating looking at junior laterals, be clear up front about what your tenure clock rules are at your school and at the candidate's school. If your school requires time in rank before tenure of 5 years and you can't give more than 2 year's credit to the tenure clock, don't bother looking at people who are in year 3 or 4 at other schools. The odds are very high that they won't be interested in sitting at your school for an extra year or two, but chances are they won't want to broach this subject up front; perhaps they'll discuss it with your dean at the on-campus visit, but at that point, you've already potentially wasted 125 person hours...
12. If slots are few in number, it might make sense to have just one large faculty meeting after all the relevant callbacks have been performed, and then have some kind of cumulative voting scheme in place to measure faculty intensity and preferences (something Ethan mentioned the other day in a post) and to rank the candidates in order. If there are more than 4 slots available, chances are it will be fine to have several waves of offers and meetings should be more frequent.
Ok, I'll stop here. Tell me gently if you think I'm wrong, and please add others in the comments.
Posted by Dan Markel on November 20, 2009 at 10:36 AM in Dan Markel, Getting a Job on the Law Teaching Market | Permalink
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Tuesday, October 20, 2009
The Social Costs of Juries
Over at NPR, there's an interesting story about how the rough economy has made the jury system buckle a bit (more). It's called: Recession Hits the Jury Box. Some excerpts and reactions after the jump.
As the recession continues across the country, an increasing number of court officials are hearing people say financial hardship will not allow them to take a seat in the jury box. No one is keeping national statistics on how hardship excuses are affecting courts. But to get a sense of the problem, the Center for Jury Studies — which provides assistance to state courts on jury trial management — conducted an informal poll of jury administrators earlier this year. Responses varied — some locales said it wasn't a problem, others, like one county in Nevada, said they were hearing more desperation in the voices and letters of potential jurors. Paula Hannaford-Agor, director of the Center for Jury Studies, says the impact on juries depends on how hard the recession has hit a given community, how long courts require citizens to serve, and the actual jury fee. "The national average, I think, is $22 a day, and there are still a number of states where the payment is $10 a day," Hannaford-Agor says. "It's certainly adding insult to injury with people who are feeling emotionally frazzled by the economic situation now."
... "As a trial attorney, you never want people on your jury that don't want to be there" says David S. Kestenbaum, a criminal defense lawyer. Kestenbaum says that in recent months, the issue has caused both prosecutors and defense attorneys in L.A. County to stipulate that a juror be removed when a judge has already denied their financial hardship excuse. "We've had to, because especially in serious long cases, you want people that are paying attention to the testimony and the evidence presented in court — not feeling they really need to provide for their family and would like to be somewhere else," Kestenbaum says.
I confess I am always a bit surprised that more states haven't retreated from the provision of the jury trial. What do you think explains the persistence of the jury institution outside the constitutional realms when it appears that so few people enjoy the prospect of service on it, and so few voters, ex ante, suspect they'll be desirous of a jury of their peers someday? Indeed, why wouldn't there be more constitutional fomentation to reduce jury service incidence? Though I have expressed normative concerns with juries in other contexts, this post is purely motivated by a desire for an explanatory theory. Is there, for example, a public choice account that explains the persistence of juries?
Posted by Dan Markel on October 20, 2009 at 11:39 AM in Criminal Law, Current Affairs, Dan Markel | Permalink
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Tuesday, October 06, 2009
Some quick thoughts on Sullivan and Graham, and an FSU face-off...
In discussing SCOTUS' upcoming consideration of the juvie life without parole cases, Jess Bravin in the WSJ yesterday gave a deserved shout-out to my clinical colleagues at FSU's Public Interest Law Center. Prof. Paolo Annino and his comrades did the important empirical survey related to this issue, and uncovered about 111 cases of juvenile offenders who were sentenced to life without parole for crimes committed while a minor. Of those 111, 77 are in Florida. Yay, sunshine state!
More seriously, I hope to dig into the briefs over the next month and offer some further analysis on this important 8th Amendment issue; in the meantime, you might want to check out Doug Berman's SLP archive of posts here. In the realm of untutored blog posts, however, let me offer a couple quick off-the-cuff remarks, drawing a bit on my recent paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment (ER).
In the ER paper, I tried to explain how the SCT in Panetti adopted a view of punishment that is basically a form of communicative retributivism. The Court ruled, per that view, that executions of the presently incompetent are unconstitutional because a commitment to communicative retribution would preclude punishing people who are not fit interlocutors for state punishment.
Given the Court's Panetti-based interest in achieving the goals of communicative retribution, which requires interlocutors fit for the communicative message of state retribution, it seems that my visiting colleague, Scott Makar, the solicitor general of Florida who's arguing the juvie cases next month, should have to square the rationale of Panetti with the idea of LWOP for juvies. The latter, it seems to me, are empirically not very good interlocutors for communicative punishment. That rationale seems implicit in Roper v. Simmons too. Of course, Makar might say, well, Panetti and Roper were about the death penalty, and "death is different." But in truth, that answer has no legs in this context, a point I develop at length in my ER piece, where I try to explain what the implications of the communicative retributive point of view are for non-capital punishment. Being a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed. Even Scalia saw, in his dissent in Roper v. Simmons, that it would be hard to see a stopping point to the rationale . It'll be interesting to see if Scalia is prepared to follow, per precedent, this line of analysis or say otherwise. Any bets?
That said, I don't want to suggest it's an open and shut case from a constitutional perspective looking at other issues of legal interpretation, or from a policy perspective. While I was in South Florida last week for Yom Kippur, I had the chance to chat about this issue a bit with a family friend who's a state trial court judge. He's a pretty humane fellow, but didn't seem to think there were better alternatives when it comes to 17 year olds who have rap sheets a book long, with a heinous underlying offense. Graham and Sullivan, of course, were 13.
Last related point: Bravin was right to focus on AMK in his piece. Kennedy was the swing vote in Panetti and Roper, and the key will be for other conservatives to appeal to his conscience. In this vein, check out Bravin's reference to the Alan Simpson (R-Wy.) amicus brief:
"It's too cruel to be constitutional," says Republican former Sen. Alan Simpson of Wyoming, who joined six other former juvenile offenders in a friend of the court brief supporting Messrs. Sullivan and Graham. "For me, it was very important to have some second chances." Mr. Simpson says he was "a monster" who repeatedly got into trouble with his pals, although his offenses -- torching an abandoned building, shooting up mailboxes and killing a cow -- don't approach those of Messrs. Sullivan and Graham.
Posted by Dan Markel on October 6, 2009 at 05:59 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel | Permalink
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Thursday, August 20, 2009
Risinger vs Allen-Laudan
As three or four of you may remember, almost a year ago exactly I posted here about a terrifically interesting set of articles on the relationship between criminal justice and epistemology by philosopher Larry Laudan. One of those pieces was co-written with NW's Ron Allen, entitled "Deadly Dilemmas," and it appeared recently in a symposium in Texas Tech L. Rev. and is available here. (A follow up of Laudan's work with Allen appears here, dealing with Bail and Crime.)
I registered some of my disagreements with the first Deadly Dilemmas piece here on Prawfs, but was overall quite impressed with much of the article, and Laudan's more general program to rethink the relationship between error rates and the obligations of a liberal state. In any event, though it reflects some of the same ideas I floated here, there is a far more sophisticated and extensive response to the Allen and Laudan piece (and its agenda) now available in draft on SSRN by Seton Hall's Michael Risinger, which I highly commend.
I had the chance to read it quickly a few weeks ago, pre-BamBam, and thought it was very interesting. Indeed, had Risinger's draft been available earlier this year, it would have affected the way I drafted some aspects of my pieces on punitive damages as well as the piece on Panetti and the 8th Amendment. Unfortunately I don't have time to say much more than that I found Risinger's piece a very helpful addition to the discussion prompted by Allen and Laudan. I will add one more note: I'm grateful Risinger has done more intellectual history homework than I did, and thereby focused some attention on whether the so-called Laplace-Nozick thesis regarding risk-tradeoffs really merits being called the Laplace-Nozick thesis. Perhaps it's better called the Allen-Laudan tradeoff analysis. Regardless of what we call it, I'm still convinced that some substantial degree of attention to the questions and values underlying the analysis is necessary for serious scholars of criminal justice institutional design. Risinger's piece, along with Allen-Laudan's, are good places to begin that thinking.
Posted by Dan Markel on August 20, 2009 at 08:38 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink
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Friday, August 14, 2009
Is Silence the Better Part of Valor?
In my ever-expanding series of musings about the ethical practice of legal scholarship, I thought I'd alert readers to this interesting response to Jack Balkin by William van Alstyne. It appears on Balkinization:
A few days ago, Jack Balkin posted an SSRN reference to a forthcoming piece of mine titled "The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court." He courteously sent me an email, providing an attached copy, with an expression of hope that he had not "mischaracterized" what I wrote. I thought that he had done so in a variety of ways, and at once wrote him back to say so, with a few paragraphs as merely a start to a longer reply.
After reflecting on the matter over the weekend, however, I decided against the idea. Frankly, it is too reminiscent of the endless exchanges Raoul Berger got into whenever anyone wrote something less than flattering of something he had offered in print. (It was all too much like pleadings at common law, i.e., complaint, answer, rejoinder, surrejoinder, rebuttal, surrebuttal. If nothing else, it could rightly be said of Raoul Berger that he was "indefatigable," i.e., Raoul let no critic go unanswered, determined always to have the last word, no matter what).
On reflection, it seems far better to thank Jack for drawing attention to my SSRN-posted essay, with the suggestion to the many readers of his blog just to read what I wrote, judge the matter for themselves, and leave it at that. To the extent they find it wanting, well, that's quite all right. Still, at the end of the day, it will be quite nice that it may thus achieve a wider audience than I had any reason to expect.
It's kind of a gracious reply--except for the none too subtle digs at Raoul Berger. I guess the thought is that if you're at Harvard or dead (or, better, both), the principles of generosity or charity don't much apply, even or especially to those who might simply be really committed to "getting the arguments right" (one of our mottos here, inspired by Walzer)...In any event, I would think most people who write a critique of another person's work would welcome (or if they have integrity and curiosity, should welcome) the feedback of the object of the critique. That said, I suspect that for some of these objects of critique, the task of replying to those who engage you seems tedious because it requires you to look back on your work when you might prefer to look forward, or perhaps forget you even wrote those words.
Alas, I'm reminded that I have a few things I'm supposed to respond to...but I think I hear the more urgent call to go change a diaper or six. Have a good weekend.
Posted by Dan Markel on August 14, 2009 at 04:24 PM in Dan Markel | Permalink
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Thursday, August 06, 2009
Cubby Markel's Got a Name! Or two... or three.
The following is the text of some remarks shared at today's "Brisening" for Baby Boy Markel.
Beloved family and friends, Rabbi Asa, thank you for joining us from far and near on this auspicious day! We extend to you our warmest greetings and heartfelt blessings.
Wow! We are so grateful and thrilled to share this moment with you. One week ago, our worlds were immeasurably enriched and at the same time turned upside down by the arrival of our beautiful son. Today, on the Eighth Day of his precious life, he has, just prior to this Baby Naming, entered into our people’s covenant with God, a covenant that began with our forebears, Abraham and Sarah.
We want to take this opportunity to say a little about the people whose memory we honor through the naming of our son. Our son’s name in English is Benjamin Amichai Markel. His Hebrew name is Lev Amichai Markel. Each of these three names is rich in significance and merits elaboration.
The Hebrew name Lev, means heart in Hebrew, and it honors the memory of Wendi’s beloved maternal grandmother Lorraine Jacobs, Donna Sue’s mom. Grandma Lorraine and Wendi had an exquisitely close relationship, and it was always a profound regret that Grandma passed away five years before Wendi and Danny began dating. There is so much to say about her that we could spend literally hours sharing stories. Suffice it to say, Grandma Lorraine occupies a magical and persistent presence in Wendi’s heart. And for that reason, and the unstinting love she showered upon her family, and especially Wendi, we have chosen to name our son with the Hebrew name, Lev. We know that if Grandma were here today in person, she would be beaming with pride and joy for all that her grand-daughter has done and become. We also know that right now, Grandma Lorraine is dancing with delight in the heavens above, and we take great comfort in sharing her sense of vitality and good humor with our son.
Lev’s middle name is Amichai, both in Hebrew and in English. The name in English is spelled A-m-i-c-h-a-i, and its Hebrew spelling is eiyin, mem, yud, khet, yud. The name is powerfully special to us for several reasons. First, as many of you may know, Danny’s Bubbie Helen, his grandmother, died just this past spring, after a rich and numinous life of 95 years. Bubbie Helen’s Yiddish name was Khashkie, which was a diminutive of her Hebrew name, Khasia. That name Khasia means “Protected by the Lord”, which is sometimes rendered as a sanctuary, a sacred place of calm and serenity. The name Amichai itself means “my people lives,” and, like the name Khasia, it also includes the letter Khet. Knowing the unwavering commitment Bubbie Helen had to the Jewish people and the Jewish tradition, we think she would take great sanctuary, that is, great calm and serenity in knowing that her people, that is, our people, live on in the name Amichai. Secondly, the English rendering of the name Amichai begins with the letter A, which we use to recall Wendi’s Papa Aaron, Harvey’s beloved father, who died while Wendi was just a sophomore in high school.
Next, we want to share some thoughts about our son’s first English name, Benjamin. The name Benjamin commemorates the grandmothers of both Wendi and Danny. Wendi’s grandmother, Betty Lacow Adelson, was her beloved father Harvey’s mother. Betty was a great mother to Harvey, her only child, and she cared for him with a loving and mighty heart.
Danny’s Bubbie, or grandmother, was Bella Schoenfeld Markel (the mother of his father, Phil). Bubbie Bella died when Danny was a sophomore in college, but he fondly thinks of the many times he spent time with his paternal grandparents in Montreal, and especially the happy times in Bubbie Bella and Zaidy Max’s kitchen, where he delighted himself with her yummy and distinctive chocolate chip cookies, her incomparable chicken soup, and most of all, her sweet and caring disposition.
The name Benjamin also happens to be the name of Danny’s paternal great-uncle Benjamin, whose daughter Tzipi, and whose grandchildren, Shlomi, Zvika, and Elad, are cousins in Israel and the US to whom Danny maintains an extraordinary close relationship. Because Uncle Benjamin dies many years ago, Danny was deprived of a relationship with him. But in his recent trip to Jerusalem in May, Danny had the chance to hear Tzipi share many heartfelt recollections of her wonderful father, who by all accounts, was an extraordinarily gentle and kind person devoted to family and friends, the kind of person we hope our son Benjamin Amichai will emulate as he progresses toward a life of good thoughts and good deeds.
Last, we want to return one last time to Cubby’s middle name, Amichai. As many of you know, the Hebrew name Amichai was the last name of the great Israeli poet, Yehuda Amichai, who died almost a decade ago. During the transformative year that Danny lived in Israel after college, Danny had the chance to meet with Yehuda several times informally, at parties, in Yemin Moshe, or on the bus, when they would serendipitously meet up en route to buy vegetables at the market. Amichai wrote poetry with an arch spareness, joyful affection for the human condition, and a deep and dry sense of humor. His poems and his personality are not only remembered but lived today, and with great fondness. We’d like to close by sharing a little bit from a poem called “Tourists,” which evokes both Wendi and Danny’s, and Amichai’s love of the present moment, a love that helps us escape the dangers of being too contained and constrained by the dark memories of our people’s often difficult and tragic past, a love that guides us toward the future with aspirations of connection and triumph.
Once again, the poem is called Tourists.
Visits of condolence is all we get from them.
They put on grave faces at the Wailing Wall
And they laugh behind heavy curtains
In their hotels.
They have their pictures taken
Together with our famous dead…
They weep over our sweet boys
And lust after our tough girls
And hang up their underwear
To dry quickly
In cool, blue bathrooms
Once I sat on the steps by a gate at David's Tower,
I placed my two heavy baskets at my side. A group of tourists
was standing around their guide and I became their target marker. "You see
that man with the baskets? Just right of his head there's an arch
from the Roman period. Just right of his head."
"But he's moving, he's moving!"I said to myself:
redemption will come only if their guide tells them,
"You see that arch from the Roman period? It's not important: but next to it,
left and down a bit, there sits a man who's bought fruit and vegetables for his family."
Thank you again for joining us on this rousing and awe-inspiring day. We hope to share only continued future simchas and joyous occasions with you and our now burgeoning family that includes Lev Amichai, or Benjamin Amichai, Markel.
Feel free to call him any variation of these names, or alternatively, the nicknames we have so far deployed: Cubby (since he's joining a family of Bear and LadyBear), Bam-Bam (as his initials suggest), or Mr. Buggles, b/c he's a snuggle-buggle...there are a lot of choices, but we're pretty sure he's likely to ignore any one of these names for the foreseeable future!
Thanks again for being here. We love you.
Snapshot from today's earlier excitement.
 Tzipi’s mother died at an early age and Uncle Benjamin cared unceasingly to raise his daughter to become the warm and gracious matriarch who welcomed Wendi and Danny into her home during the trip to Israel in which Danny later proposed to Wendi . Danny and Wendi also have several close friends named Ben or Benjamin; their love for these fine persons is also connected to this choice of name. E.g., Ben Depoorter, who famously remarked upon taking the Markels around Belgium, You can take Wendi and Danny absolutely anywhere—but just once!
Cubby, earlier this morning, says: Ok, Rabbi Asa, bring it!
Posted by Dan Markel on August 6, 2009 at 03:10 PM in Dan Markel | Permalink
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Wednesday, August 05, 2009
Final Version of Executing Retributivism is Now Available
Just a quick note that the final paginated version of "Executing Retributivism: Panetti and the Future of the Eighth Amendment," my recent Eighth Amendment piece, is now available on SSRN, and soon in a Northwestern U. L. Rev. near you (103 Nw U LR 1163 (2009)). Oddly, the Nw U LR has a policy of not using/permitting abstracts, which I found befuddling, since I think abstracts are pretty important, and they didn't have a really good reason for not permitting abstracts, other than consistency with the past and not wanting to irritate other authors who had asked and been denied earlier -- talk about the costs of transition rules! That said, my experience with the NW editing team was truly outstanding, and I commend their EIC Dave Baltmanis and all the other excellent editors who helped me whip this into shape, even as some were prepping for the bar...
Here's the abstract, which I took from an earlier draft. Again, the final version is available here
In Panetti v. Quarterman, a 2007 Supreme Court case about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. Although the Court's explanation for this new "rational understanding" requirement was somewhat inchoate, this Article argues that the new requirement only makes sense if there is a commitment to the view that state punishment operates primarily as a communicative retributive encounter between the state and the offender. That view of punishment, in other words, is Panetti's ratio decidendi, the implicit rationale which best explains the case's holding.
Once properly explicated, this rationale entails two profound and insufficiently appreciated consequences. First, the rationale, properly extended, would decisively erode the constitutional justification for the continued use of the death penalty. Second, this rationale would upend the Court's past Eighth Amendment cases that have required neutrality among sentencing purposes selected by the states. Instead, the rationale would elevate "negative retributivism" to a place of primary importance in constitutional criminal law. Under a commitment to negative retributivism, the Court would need to substantially revise at least three areas of law affecting: the practice of warehousing mentally ill persons in prisons; the treatment of claims of actual innocence; and assessments of noncapital sentencing proportionality. In short, once the foundations for the decision are properly understood, Panetti, a seemingly sleepy case about a doctrinally narrow issue, can change virtually everything we know about the Eighth Amendment.
Posted by Dan Markel on August 5, 2009 at 02:02 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink
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Friday, July 31, 2009
baby boy markel
(Updated with pic below.) Wendi and I welcomed a little and delicious 7 lb 5 oz baby boy into the
world last night (Wed) at 1058 PM. Everyone is flourishing. The baby naming
ceremony and bris will take place next week on Thursday in the Hassee. More
details to follow but I'm using Facebook Mobile to pepper the world with inanities and new pics so, if you're interested, follow Bam-Bam's life journey there.
With gratitude and blessings,
Wendi Adelson and Danny Markel
Here's a pic of the little guy, dreaming of whitefish salad and other smoked delicacies to come.
Posted by Dan Markel on July 31, 2009 at 02:27 PM in Dan Markel | Permalink
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Sunday, July 26, 2009
Taxing Punitive Damages, etc.
Update 8/16: We've now got a first shitty draft available for private circulation; if there are tax or torts mavens who wish to read it, please email me asap. Thanks.
It's about four days until my wife is "due." During this pre-baby period, one of my projects has been an effort with my friend and co-author, Gregg Polsky, to finish our "shitty first draft" of Taxing Punitive Damages. I'm happy to say we're almost there. This paper is actually the fourth paper on punitive damages I've been involved with the last few years. The first two came out this past spring (here and here) and I was initially planning on turning to work further on and submit the third one, Punitive Damages and Complex Litigation, later this summer. But for a cluster of reasons, that piece is now on the back burner and has swapped places with the fourth piece -- the one with Gregg on the intersection of taxation and punitive damages.
Unlike the earlier co-authoring work
I did (and am doing still) with Ethan and Jennifer, where we had overlapping areas of expertise as well as separate ones, this piece with Gregg presents a collaboration where there's really no overlap of expertise. He's the tax guy and I'm, well, the guy who does whatever it is that I do. While I'm definitely not the tax guy -- I never took tax in law school, to my regret, so I've been trying to learn a few things while writing this paper up -- I confess I've had fun learning about all this new legal mumbo jumbo. Tax is fun. Yeah, I said it
Over the next week or so and in the course of a few posts, I'll try to share some parts of the paper's main ideas. There's a rough stab at an abstract after the jump. But keep in mind that all this is tentative, so if you think we're off-base, please let us know. By the way, we expect to have a circulable draft in the next week or two. If you're a tax person and/or interested in federalism (Brian G? Rick H?), we hope you'll be among the first to read it.
Taxing Punitive Damages
In this article,
we address the important but astonishingly under-examined issues associated
with the taxation law and policy related to punitive damages. For the most part, the
tax consequences of punitive damages are not on anyone’s minds, and as a result
of this blind spot, plaintiffs and their lawyers are likely leaving enormous
amounts of money on the table in every case involving punitive damages against
defendants whose torts occurred in the context of business operations. Of
course, even if we assumed that decision-makers regarding punitive damages were
aware of the relevant tax effects, there are still a number of other important
issues affecting whether a jurisdiction should make punitive damages a)
deductible from defendants’ gross income or non-deductible, and b) taxable
gains to the plaintiff. This Article examines
those issues, and by doing so, spotlights the policy difficulties associated
with trying to use tax law to help achieve the goals of current punitive
damages law. Contrary to a number of scholars who have flatly
endorsed the move to a non-deductibility rule to simply increase the putative “sting”
of punitive damages, we explain what that change in taxation would augur for a
broad array of policy concerns including federalism, settlement incentives,
collusion against third parties, and administrative oversight. Because we
think a lot of the difficulties associated with the taxation of punitive
damages cannot be readily fixed simply by tweaking tax law, we sketch out a vision for what a more attractive punitive
damages regime would look like, and how the tax rules would correspond
*Btw, I associated the "Yeah, I said it" line with Chris Rock and his famous joke about who can and cannot be First Lady, but it seems Wanda Sykes may have laid claim to it more prominently by her book title.
Posted by Dan Markel on July 26, 2009 at 02:00 PM in Article Spotlight, Dan Markel, Retributive Damages, Torts | Permalink
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Friday, July 17, 2009
Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers
Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump.
The Duty to Rescue and the Registry for Caregivers: A Guest PostBy STEPHEN J. DUBNER
We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.
The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel
In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.
Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.
The Law and Its Rationale
Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.
Hmmm. Only parents and spouses. Why not grandparents, cousins, siblings? We think the answer has something to do with the fact that parental and spousal relations are the two familial relationships that persons enter into with some degree of real voluntariness. I can’t choose to have a grandfather or a sister. But I can avoid marriage — notwithstanding the subtle pressures or inducements from Jewish mothers or the government’s social policies. Similarly, obligations to one’s child might be legitimate in part because it’s largely a choice to have a child — at least in an age and polity where contraception, abortion, and the chance to terminate one’s parental rights exist.
Thus, despite the general common law rule in favor of maximizing personal autonomy, the government’s imposition of an obligation to rescue spouses and children is not so illiberal; it reflects the fact that the underlying conduct of having a spouse or child is such that it can be avoided without much difficulty.
What are the rationales offered for penalizing a failure to rescue between spouses? Usually, they are 1) saving human lives in danger and 2) affirming the significance of marital obligations.
The problem with the first interest is that the means used here — spousal obligations to rescue each other, policed through the criminal law — is woefully underinclusive, so much so that it’s hard to take seriously the idea that this is what’s motivating the use of this family-ties burden.
The second objective, by contrast, makes relatively more sense. Although the obligation to undertake easy rescues is not specifically articulated in many wedding vows, it reasonably falls under the language that is often used in those vows.
The problem with relying principally on wedding vows in these contexts is that the state ends up drawing weird and inexplicable lines. For example, why do the partners of a newly married heterosexual couple have duties to rescue each other but not those in the long-term homosexual couples living in states that won’t recognize their unions? If the key feature of the spousal relationship (for purposes of assigning omissions liability) is the voluntary assumption of caregiving responsibilities, then we don’t see why the breach of other voluntarily assumed caregiving obligations are not similarly subject to criminal law sanction.
As we argue in greater detail in our book, any potential prosecution of a person for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot or choose not to enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly give the family members of homosexual couples the comfort of knowing that omissions liability is parceled out in a non-discriminatory fashion.
One way to see this discrimination is through analogy: if omissions liability were distributed on the basis of race, such that whites had a duty to rescue their spouses but blacks did not unless they separately contracted for that duty, what message would that send? Our sense is that it exhibits a lack of respect of the value of the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm while a gay man in a similarly meaningful and voluntary partnership does not? In both instances, imposing liability serves the same valuable functions: increasing safety and promoting an ethos of caregiving relations triggered by voluntary choices. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly underinclusive; it leaves out those who cannot get married because of a plainly troubling moral choice made by the state.
For the most part, we do not have much problem with marriage being an overinclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we think several options should be explored.
Some Options For Designing Policy
One solution would be to decouple omissions liability from marriage altogether, and instead ask parties to any relationship to register with a state registry. This would treat all persons the same and without favor. But a no-duty-to-rescue rule in marriage could act like a penalty default rule. On the one hand, it would probably encourage more people outside of marriage to think about whom they wish to rescue. On the other hand, it might also add needless costs associated with persons who by virtue of marriage would already be willing to undertake a duty to rescue.
A better solution, based on reducing the social costs of the scheme, would be to require duties to rescue in marriages and to create a registry for all others who want to participate in a “compact of care” such that they have a duty to perform easy rescues. Marriages would simply have the implicit term of duty to rescue built into them and others outside marriage (including those in polyamourous relationships) could opt into it. This would also allow persons to insist on seeing evidence of opt-in by another person before they decide to jointly acquire property, cohabit, or perform caregiving tasks for one another.
Some might raise concerns that we are too focused on spouses and parents as paradigmatic relationships here. The concern here would be that we are insisting that the sexual family or marriage be the normative ideal for adult interactions with each other. We respectfully disagree. Indeed, the point of our registry system is to obviate this concern entirely. People who are not married but “act” as though they are do not have to register, but they may choose to do so; or just one may decide to do so for the other since the registry is a place of declaring one’s assumption of obligation — it is not predicated on norms of reciprocity, nor does it require contractual formalities. To be sure, our slight preference for assigning duties to rescue in the context of marriage and custodial parenting is responsive to what we think of as the specific features of caregiving written into the “scripts” of marriage, but no one should be forced into those roles.
What’s more, people should be free to and encouraged to assume these obligations outside the scripts of marriage. The registry we endorse permits siblings or cousins or roommates or friends to enter into compacts of care, but the idea is not to require it through the criminal law outside voluntary choices or the specific circumstances of the parent-child or spousal relationships. Indeed, we would resist any state’s attempt to impose a legally enforceable relationship of caregiving or a duty to rescue on those persons outside the parent-child or spousal context because we simply cannot say these relationships have been entered into voluntarily.
In the context of platonic roommates, imposing a duty of care through the criminal law would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of caregiving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them.
It is, of course, possible that very few individuals will choose to register; why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability. If, on the other hand, some individuals do choose to undertake an obligation to rescue, the benefits that decision conveys in terms of promoting safety and promoting an ethos of care and compassion certainly seem worth the effort.
We can also imagine the state incentivizing such registrations through small tax breaks; alternatively, perhaps norm entrepreneurs (private employers or faith groups) will start “opt-in days” to foster solidarity among members of their communities. Of course, because peoples’ relationships ebb and flow, the registry would have to permit people to withdraw from these compacts of caregiving if notice is given to the affected parties. Crazy? Feel free to let us know (gently) in the comments. Thanks again to our wonderful hosts for letting us share our freaky, if not quite freakonomical, ideas.
Posted by Dan Markel on July 17, 2009 at 11:59 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Privilege or Punish | Permalink
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Thursday, July 16, 2009
Should Parents Get Sentencing Discounts? Our Third Freaky Post
Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT's Freakonomics Blog, following our two earlier posts about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.
Sentencing Discounts for Parents? A Guest PostBy STEPHEN J. DUBNER
We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.
Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel
Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”
Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.
A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.
Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.
What About the Children?
It can be argued that depriving children of parents in order to incarcerate the parents for the purpose of punishment is itself a criminogenic (crime-creating) policy. Second, notwithstanding the culpability of the offenders and the harm suffered by the victims of their crimes, it can be argued that the harm is already done; the state should not inflict its own harms on the offender’s children or other persons benefiting from the offender’s care-giving. Indeed, if we urge offenders to bear responsibility for the reasonably foreseeable consequences of their actions, so must the social planners who create institutions of punishment bear such responsibility.
By that logic, our compassion and concern should properly extend to the harm imposed on innocent third parties by the state’s punishments of the care-giving offender. We are therefore willing to agree that compelling circumstances arise when an offender is the sole and irreplaceable caregiver for minors or for aged or ailing persons with whom the defendant has an established relationship of care-giving. Here, however, we reject the suggestion that the law should only value the traditional familial relationship in the context of any accommodations made to “irreplaceable caregivers.” What matters from our vantage point is that the defendant is actually serving a critical social role. We recognize our approach may incur slightly higher “information costs” by abandoning the simple proxy of family status, but this approach in practice is not apt to be more costly than the extant costs of verifying the reality of familial care-giving responsibilities.
Ordinarily, however, we think that harms to innocent third parties should be ameliorated through the institutions of distributive justice, not criminal justice. In an attractive polity, a child without a parent should receive state and communal aid regardless of whether the parent is not around due to sickness, death, or imprisonment. But where the state has failed its obligations of distributive justice, it would not be unreasonable to allow courts to tailor the punishment of caregiver offenders in a way that mitigates third-party harms without simultaneously elevating the offender’s status in violation of the principle of equal justice under law.
For that reason, and assuming the crime was severe enough that some form of incarceration is deemed necessary, it may be appropriate for legislatures to authorize greater use of time-delayed sentencing to offenders with irreplaceable caregiving responsibilities. Under this proposal, then, if an offender is the irreplaceable caregiver for children, the offender in a time-delayed sentencing scheme would defer his incarceration until after the children reach the age of majority or until alternative and feasible care can be arranged. In the case of caring for aging parents or ill spouses, the incarceration may be delayed until the person receiving the care is deceased, improves in health, or is able to obtain care from another person or entity.
During the period that the incarceration is deferred, the offender would still be punished through the imposition of supervised release conditions. For example, the defendant’s freedom of movement would be dramatically limited so that only work and necessary chores (i.e., taking one’s child to the doctor) would be permitted. Electronic bracelets or other tracking devices could be used to ensure compliance. Additionally, during the time of deferral, the state could attach extensive community service obligations or other release conditions, such as drug testing. Failure to abide by the conditions would lead to more severe punishment than would be experienced absent the deferral of the sentence to minimize possible exploitation by the defendant.
Of course, as we alluded to earlier in our two previous posts, we are also worried about the ways in which the criminal law unreflectively reinforces biases in favor of heterosexual and repro-normative family units. Our view is that if it is made available, then time-deferred incarceration should not be restricted to only those giving care to those with a blood relationship or recognized marriage. That would deny the dignity of thick care-giving relationships in a number of contexts (gay families, for instance) that also warrant the liberal state’s equal respect and concern. Thus, in our view, if the offender has been in a voluntary and established relationship of caregiving, then that should be the critical issue.
As you can see, there are many issues when it comes to finally implementing the mottoes of those who wish to promote families. In the criminal justice sphere especially, privileges and burdens are distributed without a whole lot of careful thinking. Our book is an effort to start thinking about what we are doing when we too quickly use family status in our criminal justice system.
Posted by Dan Markel on July 16, 2009 at 12:49 PM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Privilege or Punish | Permalink
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Monday, July 13, 2009
Our Second Freaky Post: Fugitives, Family Status and Criminal Justice,
Today, Ethan, Jennifer Collins and I have a second post up on the NYT's Freakonomics Blog, following our earlier post the other day about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.
Last week we featured the first of three guest posts by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.
Here is their second post.
Harboring Fugitive Family Members
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel
Following up on our earlier introductory post about our book on criminal justice and the family, we thought we’d start here with an examination of the same topic that initially sparked our interest in the intersection of criminal justice and the family — namely, how the law treats persons who refuse to cooperate (or actively interfere) with law enforcement on account of trying to protect a family member.
From an article in The Flint Journal:
Kelley Thomas’s 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad’s doorstep on E. Lorado Avenue in Flint, Michigan. Now, Thomas has been charged with harboring a felon. What’s a parent to do? It’s a difficult question, even to Genesee County ProsecutorDavid Leyton. “The fact that he’s the father was discussed by my staff, and we will take that into consideration as the case progresses,” Leyton said. “It’s hard to turn your back on your own flesh and blood.”
The stories of Kelley Thomas and David Kaczynski, the man who helped police apprehend his brother, the Unabomber, are just two of the better-known examples of family members grappling with the dilemma of whether to turn a family member over to the authorities.
In California, a police sergeant was suspended for helping his son evade arrest after committing a series of bank robberies. In Louisiana, a sheriff’s deputy helped his son flee the jurisdiction after alerting him that warrants had been issued for his arrest on child pornography charges. In Minnesota, a mother arrived home just after her son had shot and killed an acquaintance in her kitchen. Instead of calling the police, the mother helped dump the body in an alley and clean up the bloody crime scene. These demonstrations of family loyalty trigger significant media interest, perhaps in part because those who cooperate with law enforcement are often called “snitches” and might be regarded as people who violate “the taboo against turning on one’s family.”
Remarkably, in 14 states, the prosecution of family members for harboring fugitives is not an option, regardless of the nature of the crime or the extent of the family member’s involvement. These states typically exempt spouses, parents, grandparents, children, grandchildren, and siblings from prosecution for providing assistance to an offender after the commission of a crime “with the intent that the offender avoids or escapes detection, arrest, trial, or punishment.” (For those wondering, there is no federal law that provides a family member with an exemption from prosecution.)
In addition to these 14 state exemptions, an additional four states reduce liability for an immediate family member but do not exempt them from prosecution entirely.
Florida’s statutory exemption for family members is an interesting example. It forbids prosecution of spouses, parents, grandparents, children, or grandchildren for helping an “offender avoid or escape detection, arrest, trial, or punishment,” with one important exception; the exemption does not apply if the primary offender is alleged to have committed child abuse or murder of a child under the age of 18, “unless the court finds that the person [claiming the exemption] is a victim of domestic violence.”
Rationales in Defense of the Exemptions
What might be said on behalf of these statutes? First, legislators might think it “is unrealistic to expect persons to be deterred [by the possibility of criminal prosecution] from giving aid to their close relatives.” Under traditional Benthamite sentencing considerations, criminal punishment would therefore be unwarranted as a deterrent because it would be deemed ineffective in any event. Second, perhaps such statutes are “an acknowledgement of human frailty.” Under this view, legislatures have simply recognized that the bonds of familial love will inevitably trump any perceived obligation to the state. A third rationale is the one expressed by a Florida court: “society’s interest in safeguarding the family unit from unnecessary fractional pressures.”
Our View (Against the Exemptions)
Once we analyze these statutes under the framework defended in our book, however, we can see why these rationales are unpersuasive. In short, they fail to account for four important, and to our mind, supervening considerations.
First, the exemptions obviously contribute to a fundamental oddity, indeed an unwarranted disparity: close friends who provide assistance face prosecution, while family members do not. Perhaps even more troubling, the statutes sweep with too broad a brush in another regard as well: they protect those family members who might never have previously enjoyed a meaningful relationship with the primary offender but simply came to the aid of a relative when asked for assistance after the commission of a crime. Moreover, the laws are written only to protect those in traditional state-sanctioned familial organizations.
Further, these exemptions have patriarchal origins. Historically, the focus of these exemptions at common law was to exempt wives from liability for following their “duty” by shielding their husbands. Today these statutes have been drafted largely in gender-neutral terms by extending their protection to other immediate family members, so perhaps they should not be invalidated on the basis of their patriarchal roots alone. But if not crafted carefully, these exemptions may serve to shield from prosecution those who commit crimes in the home against other family members
Our strongest reservations, however, have to do with how these exemptions impede the core functions of the criminal justice system: the imposition of accurate and adequate punishment and the protection of the public from crime. In terms of accuracy, these exemptions do a different kind of mischief than threatening our ability to sort the guilty from the innocent; they facilitate a fugitive’s escape from punishment entirely. Allowing an individual to obstruct justice by hiding a family member obviously frustrates the critical task of capturing guilty offenders. Moreover, this immunity is granted without regard to the heinousness of the underlying crime: the exemption is generally granted whether the fugitive is a forger or a murderer.
While the government’s decision to prosecute someone for harboring a family member fugitive might pose significant stresses upon the defendant’s family, the responsibility for that burden would seem to lie squarely on the shoulders of the family member who commits a crime or decides to enlist his relatives to assist him in escaping adjudication or punishment for his illegal activities. Moreover, while we understand that citizens might agree that it is a difficult choice to turn away family members at a moment of need, we need to recognize that the fugitive might have already wronged, or might pose a future threat to, other persons and other families. Their interests, and the public’s interest, in having fair punishment accurately imposed should be respected too.
Finally, these statutory exemptions create perverse and dangerous incentives that Freakanomics blog readers should appreciate. In a state with a family exemption, there is no reason for a defendant to commit a crime unilaterally; he has every incentive to corral close family members to help him conceal evidence and hide from the authorities because those family members face no criminal consequences for their actions. Why should we create an incentive for a defendant to recruit accomplices and thereby increase the chances of success for his criminal venture? As the Supreme Court recognized 40 years ago, “concerted [criminal] action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”
For these reasons, we think these exemptions based on family status are bad policy. Are we right? Feel free to weigh in on the matter.
Posted by Dan Markel on July 13, 2009 at 04:39 PM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib, Privilege or Punish | Permalink
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Friday, July 10, 2009
Sheila B. Scheuerman on Markel's "Retributive Damages"
Somewhat randomly, I just stumbled across this new essay on the Legal Workshop by Professor Sheila Scheuerman that takes my "Retributive Damages" piece in Cornell to task for a) conjuring a scheme that does not resemble punitive damages, and at the same time b) ostensibly suffers from due process questions arising from the SCT's punitive damages jurisprudence. Hmmm.
After the jump, I've reprinted her critique. I'll try to work up a response and share it next week. Though I guess the title of her response suggests something like I'm Alice in Wonderland, I'm nonetheless very grateful to Prof. Scheuerman for the attention she's paid to my work. I hope it withstands her scrutiny, at least when viewed in conjunction with the second piece in the series, How Should Punitive Damages Work?, which came out in final form a couple months ago. If you've read my piece(s), feel free to weigh in on the matter in the comments. Have a good weekend!
Through the Looking Glass: A Response to Professor Dan Markel’s Retributive Damages
In Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, Professor Dan Markel “reimagine[s]” the law and proposes an interesting theory of punitive damages. Unlike work by other scholars, Professor Markel intentionally situates his theory of “retributive damages” outside the historical framework and doctrinal limits of punitive damages. Instead, Professor Markel argues that states should replace the current punitive damages framework with a new statutory scheme akin to the federal sentencing guidelines. Though satisfying on a purely theoretical level, Professor Markel’s paradigm raises two initial questions. First, can the “retributive damages” model properly be considered punitive damages? Second, do “retributive damages” avoid the doctrinal problems that have plagued punitive damages for decades? In my view, the answer to both questions is “no.”
It’s Not “Punitive Damages”
In this first article in a planned quartet, Professor Markel proposes using public retributive justice theory to frame a new system of punitive damages. Under his proposal, state legislatures would define the conduct subject to retributive damages by statute. Plaintiffs who were harmed by a defendant’s violation of the retributive damages statute could seek retributive damages as a remedy in a traditional tort action. However, if the plaintiff chose to forgo retributive damages or if the statutory violation did not cause any harm, private attorneys general could bring an action for retributive damages alone. In either case, the jury would use a set of legislative guidelines to determine a reprehensibility “score” for the defendant’s conduct. In a structure similar to the criminal sentencing guidelines, the judge would then take the jury’s reprehensibility score and apply it to a statutorily defined table setting the amount of damages based on the defendant’s wealth. Next, courts would evaluate the profitability of the defendant’s conduct. If the reprehensibility-based damages combined with compensatory damages did not eliminate the profit from the defendant’s wrongdoing, courts also would impose a gain-elimination penalty. The reprehensibility penalty and the gain-elimination penalty would both be paid to the state and could be credited against future criminal sanctions. To encourage suits under this scheme, the defendant would be required to pay a fixed $10,000 award to the named plaintiff as well as the plaintiff’s attorney’s fees. Finally, a plaintiff could not settle a retributive damages claim without state approval.
Putting aside the merits of Professor Markel’s retributive damages scheme as a type of damages, one thing is clear: it is not punitive damages. Like Professor Markel’s “retributive damages,” punitive damages are “extra-compensatory” in that both types of awards exceed the plaintiff’s actual harm. But that’s where the similarities end. Unlike the statutory scheme envisioned by Professor Markel, punitive damages are a type of common law damages available in a civil tort suit by a private plaintiff. In most states, juries are instructed to calculate the amount of punitive damages based on a variety of factors. Those factors include the reprehensibility of the defendant’s conduct, but they also include numerous other factors. Moreover, in most states, plaintiffs keep the bulk of a punitive damages award.
Professor Markel would change so many of these characteristics that it is impossible to consider his proposal a form of “punitive damages.” Consider just a few of the differences. Retributive damages can be pursued by uninjured third parties or the state itself; punitive damages can be pursued only by the tort victim. Retributive damages are awarded wholly to the state; punitive damages are awarded to the private plaintiff. Retributive damages are calculated according to a statutorily defined table; punitive damages are calculated by a jury according to common law principles. Retributive damages cannot be settled without the approval of the state; punitive damages can be settled at the will of the parties.
To be sure, scholars have criticized many of these features of punitive damages. And it is true that judicial opinions largely have failed to articulate a coherent rationale for punitive damages. Nevertheless, despite the ongoing debate about the theoretical justifications for punitive damages, nearly all fifty states and federal courts have accepted the doctrine of punitive damages. Indeed, punitive damages have a long historical pedigree dating back to the Hammurabi Code in 2000 B.C.
A Few Due Process Problems with “Retributive Damages”
The question then becomes whether “retributive damages” would be better than the current system of punitive damages. Because Professor Markel’s article is only the first of a planned series, much is left unanswered at this stage, which makes a complete assessment of “retributive damages” difficult. I’d like to consider a couple of threshold due process issues.
As an initial matter, tying the amount of the retributive damages award to the defendant’s wealth, as Professor Markel’s model would do, raises facial due process concerns. Under Philip Morris v. Williams, the Court held that “the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon non-parties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.” In addition, under State Farm v. Campbell, “[a] State cannot punish a defendant for conduct that may have been lawful where it occurred.” Nor can a state punish the defendant for unlawful conduct outside its jurisdiction. Basing a retributive damages award on a defendant’s wealth, however, risks punishing a defendant for harm to non-parties in violation of Philip Morris, and further risks punishing a defendant for lawful conduct and out-of-state conduct in violation of State Farm.
Moreover, anchoring the amount of a penalty to the defendant’s wealth does not take into account the second BMW guidepost: the ratio between the extra-compensatory award and “the actual harm inflicted on the plaintiff.” Although Professor Markel correctly notes that “harm” is not per se limited to compensatory damages alone, his retributive damages scheme does not provide room for the jury—or judge on post-verdict review—to evaluate the reasonable relationship requirement. In response, Professor Markel points to the legislative foundation of his new system and argues that the statutory nature of retributive damages justifies greater deference by courts. Thus, he suggests that the reasonable relationship requirement would not apply to “retributive damages.” As I previously have argued, however, legislative penalties are not immune from constitutional scrutiny. Rather, the Supreme Court has applied the same constitutional excessiveness standards, including the reasonable relationship requirement, to jury awards of punitive damages as well as criminal fines and sentences. Thus, this constitutional requirement cannot be ignored.
Finally, allowing a private attorney general to sue based on harm to a non-party violates the black letter of Philip Morris. Professor Markel acknowledges this issue, but he argues that the retributive damages scheme survives constitutional scrutiny because the private attorney general “is not suing to recover for harm to the victim, but rather to initiate an intermediate sanction for the defendant’s wrongful conduct.” This argument misses the mark. The Supreme Court stated unambiguously that the amount of a punitive damages award must be tied to the harm to the individual plaintiff: a punitive damages award cannot be used “to punish a defendant directly on account of harms it is alleged to have visited on nonparties.” Moreover, allowing a retributive damages award to be based on harm to non-parties would prevent the defendant from raising all possible defenses. In Philip Morris, for example, the Court noted that other allegedly injured smokers might have known smoking was dangerous or might not have relied upon the defendant’s statements. Professor Markel’s retributive damages scheme raises similar concerns.
In short, Professor Markel does not suggest a new theory of punitive damages that harmonizes the rather confused law in this area. Rather, he offers a new statutory civil penalty system, and it remains unclear whether this system will survive due process scrutiny. Beyond these questions, I wonder about the inevitable issues that would arise from a system that combines aspects of the harshly criticized sentencing guidelines with the complexity of qui tam law added on top of existing punitive damages jurisprudence. I look forward to seeing how Professor Markel addresses these and other underlying issues in his subsequent pieces.
Copyright © 2009 Cornell Law Review.
Sheila B. Scheuerman is Associate Professor of Law at Charleston School of Law.
Special thanks to Keith N. Hylton, Anthony J. Sebok, Christopher J. Robinette, and Benjamin C. Zipursky for comments.
This Editorial is a response to the following Legal Workshop Editorial: Dan Markel, Retributive Damages as Intermediate Public Sanctions: A Synopsis, LEGAL WORKSHOP (May 12, 2009), based on A Theory of Punitive Damages as Intermediate Sanction, 94 CORNELL L. REV. 239 (2009).
Click Here for the Markel Legal Workshop Editorial.
Click Here for the full Markel Article.
Posted by Dan Markel on July 10, 2009 at 02:59 PM in Article Spotlight, Criminal Law, Dan Markel, Retributive Damages, Torts | Permalink
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Friday, July 03, 2009
Haberman et al on Madoff
Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor... :-)
The piece appears after the jump. Feel free to weigh in with your tempered views in the comments on Madoff's sentence--or his wife's non-sentence...
July 3, 2009
Is 150 Years Appropriate, or Just Silly?
By CLYDE HABERMAN
Sholam Weiss, a son of Brooklyn, was a crook. By all accounts, he was also a rather unpleasant man, hardly the sort to inspire compassion. A federal judge in Florida certainly had no sympathy for him after he was found guilty of a fraud that drained hundreds of millions of dollars from an insurance company and caused its collapse.
In February 2000, the judge piled up dozens of criminal counts against Mr. Weiss, one on top of another. Thus did she create what is thought to be the longest federal prison sentence ever imposed: 845 years. Mr. Weiss’s projected release date is Nov. 23, 2754. This is only a guess, but he is not likely to make it.
So did the judge, Patricia C. Fawsett, show admirable toughness with a notorious offender? Or was an 845-year sentence simply silly, inviting disrespect for the legal system?
For that matter, what about a sentence of 150 years? It, too, can never be fully served. The reference, of course, is to the century and a half in prison to which Bernard L. Madoff was condemned this week by a federal judge in Manhattan, Denny Chin.
James A. Cohen, a Fordham University law professor, is among those who have a problem with sentences that are on their face impossible. “It prompts in some people a lack of respect for the system,” Professor Cohen said. “Somebody has to be asking, ‘What is that about? What are we really thinking?’ ”
“It’s putting out something that is obviously false and fake to everybody,” he added, “and why are we doing that?”
Obviously, his is not a universally shared opinion. A more popular view is probably that 150 years in prison is too good for the likes of Mr. Madoff. That is reflected in victims’ comments and in the “boil him in oil” tone of much of the news coverage.
But at some point the Madoff case may be examined with more dispassion. Any analysis would have to include the reasonableness of the sentence ordered by Judge Chin, a widely admired jurist. Acknowledging the symbolic nature of those 150 years, the judge cited a need for deterrence, retribution and justice for the victims.
Deterrence, however, is often an elusive goal. It is mentioned by some as a reason, for example, to preserve capital punishment. Yet the Death Penalty Information Center in Washington, analyzing federal crime statistics, has found that the 10 states with the highest murder rates all have capital punishment on their books. Among the 10 states with the lowest murder rates, 6 get by without the death penalty.
With financial crime, are we to take as a given that a grifter will be deterred by sentences that, besides being unrealistic, seem to wander all over the lot? Mr. Weiss got 845 years for ripping off a few hundred million dollars. Mr. Madoff got a mere 150 years for a swindle put at $65 billion. What gives?
The dollar value is “a dangerous factor to focus on in many cases,” said Dan Markel, a law professor at Florida State University. “It introduces a variable that is highly contingent on luck and fortuity to drive sentences,” he said, and it may steer the courts away from “considered assessments” of blame and punishment.
RETRIBUTION? Mr. Madoff is 71. The odds are against his making it to 100. A 30-year sentence would have provided the same degree of retribution as one of 150 years.
As for the victims’ desires, there can be a fine line between justice and pandering. Douglas A. Berman, an expert on sentencing law at Ohio State University, expressed concern about “a tone and culture that says, ‘Hey, if the victims are really ticked, let’s give them their due.’ ”
That said, Professor Berman saw good reason to throw not just the book at Mr. Madoff but the entire library. “This is a blood lust,” he said, “but it’s a setting in which if ever a blood lust was justified, this was it.” He added, “This truly is, for lack of a better term, the Adolf Hitler of white-collar crime.”
Stephen Gillers, who teaches legal ethics at New York University, also puts Mr. Madoff in a criminal class of his own, one that justifies a maximum sentence. With those 150 years, Mr. Madoff is not merely being punished, Professor Gillers said. He is being banished, even in death.
To Professor Gillers, it’s no longer about Bernard Madoff, or even concepts like retribution and deterrence. “We’re making a statement to ourselves about the kind of people we are,” he said, “and what we will not accept.”
Posted by Dan Markel on July 3, 2009 at 02:22 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink
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