PrawfsBlawg

Can the Rule of Law Exist in Virtual Worlds?

I'm heading to Washington, D.C. in a few minutes, and will likely have little time to blog over the next three days. I thought I would fill the void with some shameless self-promotion about an article I recently published examining the rule of law in virtual worlds.

The abstract is below, and the article is here.

This article, which follows a presentation at the West Virginia Law Review Digital Entrepreneurship Symposium, is the first to consider whether virtual worlds provide a rule of law that sets expectations for virtual business. Many consider the rule of law a catalyst for economic development, and there is reason to believe that it will be equally important in virtual economies, despite differences from the real world. As more people turn to virtual worlds to earn a livelihood, the rule of law will become prominent in encouraging investments in virtual business. The article finds – unsurprisingly – that virtual worlds now lack many of the elements of the rule of law. Which aspects fail is more surprising, however. Provider agreements and computer software, the sources of regulation that are most often criticized as “anti-user,” provide the best theoretical hope for achieving the rule of law, even if they currently fail in practice. On the contrary, widely proposed “reforms,” such as community norms, self-regulation, and importation of real-world law face both theoretical and practical barriers to implementation of the rule of law in virtual worlds. Part I of the article describes virtual worlds and their connection to business. Part II defines a framework to measure the rule of law in virtual worlds. Part III discusses the various types of regulation in virtual worlds, and Part IV critically analyzes how these regulations measure up against rule of law requirements. The article concludes with some suggestions about how providers might enhance legal rule in virtual worlds.

System Externalities

Traditional welfarist analysis considers whether a given change in law is optimal by considering the incentives and disincentives it will have on affected actors. Take cap and trade for example. If we give carbon emission credits to domestic industries and allow them to buy and sell them, we can limit emissions, efficiently distribute the production of those emissions, and generate revenue for low-pollution industries—apparently a Pareto-optimal move.

Similarly, if there are couples out there who want babies but can’t conceive, and women who want money and have a womb to spare, we can simply allow those women to rent out their uteruses (uteri?) to the couples, and bingo—Pareto-optimality again, right? Well, not so much it turns out. A large and very interesting literature questions whether markets in surrogacy (and organs, and living babies, and many other things) should be permitted.

There are many different angles to the critique of taboo markets, so I’ll focus instead on one classic objection to them that leads in a slightly different direction. Some work (e.g., Margaret Radin’s “Market-Inalienability”) suggests that even when the parties to a transaction are made better off by exchange, the fact of the law’s ratifying that transaction can itself have dynamic, and possibly deleterious, effects on society. A legal regime that permits women to rent out their wombs for profit might begin to regard uteruseses, or women, or bodies in general, as indistinguishable from other objects in trade, and these distributed social costs may overwhelm the localized welfare gains of permitting the transactions.

This is just one example of what I’ve come to think of as “system externalities”: situations where the law’s approbation of conduct or transactions may send messages or have other negative effects on our worldview that cut back against the immediate welfare gains created by the conduct or transaction. I give several other examples of system externalities, and raise some other questions about them, below the fold.

Some examples

System externalities are most familiar from the forbidden markets literature, but they arise in many other legal contexts. Last week I wrote a post about Doug Lichtman’s interesting IP Colloquium conversation about the Shepard Fairey case. During that conversation, Mark Lemley (Fairey’s counsel) raised a concern that requiring artists like Fairey to get permission in advance of creating appropriation art could lead to a “permission culture” that is “corrosive”. Bracketing for now the question whether Lemley’s assertion is accurate, this is a classic system externality argument. I understand Lemley to be suggesting that even if it would have been Pareto-optimal for Fairey to have obtained permission from the owner of the Obama photo in order to use it, the law would be entrenching a problematic norm by requiring artists to always seek permission before use. Such a norm could chill the increasingly robust remix culture emergent on the internet, for example.

System externalities appear in work of various ideological and methodological stripes. A classic work in this vein is one of my favorite classic law articles, Richard Epstein’s “Blackmail, Inc.” This article addresses the blackmail puzzle: why does law make blackmail illegal when it makes both parties better off? Epstein’s answer is that by countenancing blackmail, the law would incentivize the creation of industries that profited off blackmail, the effect of which would overwhelm any welfare gains produced by permitting that conduct.

Objections to certain kinds of stem cell research may also fall into the system-externality category. If the materials used for such research exact no costs on living humans, and using these materials for medical research may produce important health gains, it seems hard to understand why the government should stand in the way of this research, at least from a purely utilitarian point of view. Among the objections to stem cell research are that permitting it may cause us to think of human life as less precious and more cheap, and if this perception became widespread it could make all of us worse off.

General thoughts

Since blogs are the water coolers of legal academia (albeit “bugged” water coolers, as Kate Litvak pointed out), I wrote this post to see what others might make of this. Here are a few more specific inquiries.

First, does “system externalities” seem a promising or interesting way to slice across various subject matter and substantive areas of law, as I’ve suggested it is? Or do all these examples seem disparate in some way? On the other hand, maybe someone out there has already sliced things this way, rendering this all redundant. (I freely admit that I’ve done no preemption checking on this so far, though I worry that this is just a re-tread of the law-and-norms and/or expressivist literature that was in vogue during the early 2000s.)

Second, do judges ever invoke system externalities explicitly in cases, or do they implicitly rely on this idea when making decisions? Here’s a possible example from property law: spite fences. These are structures built on one owner’s property that are eyesores designed to antagonize a neighbor, and courts typically bend over backwards to enjoin them (even in the absence of a clear positive-law basis for doing so). Perhaps system externalities provide an explanation: even if the value the owner derives from building the spite fence is greater than the costs suffered by his neighbor, it might still be a good idea to enjoin the owner because we don’t want to live in a world littered with spite fences.

Third, how can we fit system externalities into a welfarist decision-making calculus? System externalities are often dismissed as purely expressive or aesthetic arguments, but I don’t think this tells the whole story. They are often (though not always) expressive arguments, but they have real-world impacts; the idea is even law’s most localized decisions construct the world in particular ways that can have long-term, distributed negative impacts. But even if you buy the theory, it’s hard to say just how these kinds of delayed, systemic effects should be folded into a decision-making process involving two transacting parties.

Living Outside the Paradigms

Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines.  (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it.)  I was explaining this yesterday to my father-in-law, who is visiting us here in Michigan.  He's a really bright guy (a lawyer), and loves ideas, but he's not a scholar by any means, and so I'm obliged to use plain English.  It went like this.  If you are constructing a thesis that borrows from many disciplines, how much of an expert in each discipline do you need to be?  Moreover, if it's really original work, who is going to be able to judge whether the work constructively pushes the inquiry along, or is simply bullshit?*  In other words, if you are going to write in law and phrenology, do you have to have the equivalent of a professional certification (whatever that is) in both disciplines?  And if you do, have you been sufficiently co-opted by both disciplines so as to kill off whatever inclination you may have had to do "out of the box" thinking?  That's the dilemma, and I don't think it's any more resolvable by way of a silver bullet than most other long-standing irresolvable debates (like "Tastes Great" or "Less Filling").

At the recommendation of frequent commenter, A.J. Sutter, I recently started a book by Hamline University philosopher of science, Stephen Kellert, entitled Borrowed Knowledge:  Chaos Theory and the Challenge of Learning Across Disciplines.  At the same time, Brian Leiter linked the other day to my friend Rob Kar's recent review (in the Notre Dame Philosophical Reviews) of Brian's Naturalizing Jurisprudence.  The fun in reading something like Brian's work, or Rob's review of it, is the deep dive into a long-standing dialogue; in this case, the jurisprudential debates over the last century or so over the possibility of explaining, philosophically, scientifically, sociologically, or psychologically, how judges go about making law, and more fundamentally, what law is.  Nevertheless, if your intuition happens to be that looking at what judges do is like looking backwards through a telescope (i.e., not wrong, but focused on a very particular instance of how humans manage to order their affairs in the whole scheme of life, law, norms, and business), then you keep bouncing out of it with something of a "so what?"  The "so what?" is likely the reaction of most normal people to most of what philosophers, historians, literary critics, and other sojourners in the humanities do anyway, but I'm a lawyer-practitioner who somehow plopped into the academy, for God's sake, and like Guy Noir, trying to find answers to life's persistent questions.  I thus feel compelled to figure out what might bridge us from the relatively pure jurisprudence of a Leiter or Hart or Raz to what I spent more than a quarter century doing in the real world, which was legal work, but most of the time not involving judges.

More below the fold on the opposite of the deep dive - borrowing from one field to another.

A couple of years ago, I got hung up on Gödel's Theorem, which is one of the groundbreaking instances of pure thought in the last century.  For the uninitiated, Bertrand Russell and Alfred North Whitehead purported to reduce all of mathematics to a set of foundational axioms and rules of inference, focusing primarily on sets and numbers (cardinal, ordinal, real).  Kurt Gödel, a member of the Vienna Circle, constructed a lengthy proof, the purpose of which was to show that any complete complex system of formal logic, like arithmetic (particularly as encapsuled by Whitehead & North's Principia Mathematica), contained propositions that were formally undecidable within the system (i.e., that they could not be proved either true or false using the axioms and rules of inference).  In other words, the system could be either wholly consistent or complete, but not both.  The proof method involves a formal version of the Liar's Paradox, in which the following phrase translates into numbers:  "[Is not provable] is not provable."  In other words,  we get to the point where the system loops on itself, and tells us in formal terms, that the  proposition "is not provable" we've postulated within the system, and then working only from the system's basic axioms and rules of inference, and thus appearing to be provable, is not provable.  That's what makes it a theorem.

This is a mind-bending thing to contemplate, and Douglas Hofstadter's Gödel, Escher, Bach is perhaps the most famous attempt to derive metaphors from it.  But is it an effective metaphor for reducibility or limitations on knowledge, or other epistemological or metaphysical insights?  Gödel himself, like many mathematicians, was something of a Platonist. 

When I was fiddling around with this (and there's a lot of fiddling in this area - do a Lexis or Westlaw search in law reviews on "Gödel"), Larry Solum, ever wise, voiced the cautionary message:  the formal logicians are very skeptical of attempts to extend metaphors from formal logic into other areas.  But are the logicians entitled to define the extension of the metaphor?  That's what Kellert's book is about, but more generally as to all disciplines (including a discussion of the question "what's a good metaphor?").  In particular, he looks at metaphors to chaos theory, something HE knows about, in economics, law, and literature.

Well, I'm just diving into this, so more to come later.

* I may have a special interest in this.  I have a book proposal under review with a major university press.  The following comment from one of the anonymous reviewers is one that I kind of cherish:  "It is clear the author has a special range of interest and expertise, and this book weaves the author’s unique range of interests together with purpose.  The problem is that not many people share the author’s range of interests."

Puzzles and Prescriptions

When I was first preparing to go on the teaching market, a wise elder told me that all law papers had to answer the question “what should I do”? In other words, she said, the sine qua non of a legal academic paper is that it must conclude by stating some normative prescription. This comes as a surprise to no one, I suspect. After all, the point of our writing (I think most lawprofs would say) is to identify some problem in the law, and then to make some claim about how it can be made fairer, or more efficient. And I’d wager that the strong majority of law papers conclude with some kind of prescription about how the world should be. There are so many examples that I don’t feel it’s necessary to provide one.

Later, though, I spent a couple years as a fellow at an august institution in a cold, gray part of the Midwest, and noticed that many of the faculty there took a very different approach to what law papers should be. The idea was to start with some puzzle in the law, and then find a novel and convincing explanation for it. Why does a strong state like the U.S. enter into binding international agreements rather than opting for negotiation regimes? Why do laypeople continue to believe that property rights are nearly absolute when lawyers and law scholars have emphasized the limited nature of ownership since (at least) the advent of legal realism? Why are we bothered by non-negotiable boilerplate provisions when so many other aspects of sold products are hidden or otherwise stacked against consumers? The solutions to these puzzles may lie in game theory, or law and economics, or behavioralism, but regardless of the particular answer, the goal remains the same: to develop a convincing and parsimonious explanation that shows how these seeming contradictions can be resolved.

I find both puzzle and prescription papers valuable and interesting, and each of them has a place in my past and current writing agenda. My sense, though, is that the puzzle paper gets short shrift in the mainstream legal academy, where the normative prescription is king. Below the fold, I say a few words in praise of the puzzle paper, and (perhaps more provocatively) why answering the question “what should I do?” need not be the sine qua non of legal scholarship.

First, while the puzzle paper is the exception rather than the rule in legal academia, it’s more the norm in many (perhaps even most) other fields. I recently chatted with a friend who did graduate study in physics and her take was that there are really only two kinds of papers in science: those that seek to propound a theory explaining some phenomenon, and follow-on papers seeking to amass evidence proving or disproving that theory (e.g., Einstein’s theory of relativity and the body of work following that showed its validity). In an elemental sense, this is the goal of scientists: to explain how the world (or their chosen slice of it) works. And this puts into perspective the function of puzzle papers in our field: they seek to help us more fully understand why the legal world is the way it is.

Moreover, puzzle papers often seek not only to resolve the particular dilemma they identify, but to do so by showing how a particular theory about the law does the best job of providing an explanation. By showing that [choose one: L&E, behavioralism, Foucauldian power theory] best resolves a given contradiction in the law, you have provided some evidence that the operative theory is a good one because it has lots of explanatory leverage. I often think that this is often the major punch of puzzle papers; they exist not only to help us understand an otherwise unexplained phenomenon, but more so as an object lesson in why the writer's chosen worldview is the best way to understand the domain of law.

Colleagues who have expressed skepticism about the relevance puzzle papers typically suggest that they are academic exercises in the worst sense of the phrase: they seek merely to propound an answer to a question that lacks any meaningful practical implications. After all, one of the main draws of legal scholarship is that it’s not mere navel-gazing; the insights of a given paper may trickle down to actual lawyers, judges, or policymakers, and affect the way they interpret or apply the law. This is certainly possible, and indeed happens all the time, but on the other hand, the downside of prescriptive papers is that they invariably rely on contested visions of the good life that may render their outcomes hopelessly indeterminate. You don’t have to buy Pierre Schlag’s extreme version of this argument to be skeptical that prescriptions are invariably based on so many debatable empirical assertions and methodological predispositions that the answer to “what should I do?” often seems to rest on foundations too shaky to be universally convincing.

Related to the above, it may be that the title of this post may set up a bit of a false dichotomy. Puzzles and prescriptions may not be entirely mutually exclusive. Take Douglas Baird’s “The Boilerplate Puzzle”, for example. It starts off as an attempt to explain why non-negotiable form warranties bother legal scholars when other non-negotiable features of consumer purchases do not, but ends up making a number of practical suggestions for better ways to approach the concerns raised by boilerplate agreements (e.g,. addressing underlying anticompetitive conduct by sellers, or considering substantive policies about what kinds of transactions require knowing waivers) than categorically not enforcing adhesory contracts. This is just one example of how resolving puzzles may lead to prescriptive suggestions.

Finally, I realize that not all law papers fall into the puzzle or prescription categories. There are purely descriptive papers that seek to empirically test factual propositions about the world (though many of these papers produce normative prescriptions about how law should work based on their findings). Some work also simply tries to answer questions about how law’s categories should be constructed. One of my favorite such debates concerns the meaning of property, with advocates of a narrower, exclusion-oriented vision of property (Merrill & Smith, Penner) pitted against those who prefer a more capacious understanding of the term (Munzer, Singer).

As I mentioned above, I find both puzzles and prescriptions interesting and useful, albeit for different reasons, and they each have a place in my overall writing agenda. My sense (based only on casual empiricism) is that the puzzle paper tends to be underappreciated, and sometimes unfairly maligned, among law profs. The point of this post has not been to suggest that the puzzle paper is a superior kind of work, but merely to say a few words in defense of why I think it should be given equal dignity with the prescriptive paper in the legal academy.

Limiting Online Provider Immunity

My last post argued that Section 230 should be reinterpreted to immunize only content that comes from third parties via the interactive service offered by providers.  This would clear up many of the conflicts in the law, though providers would still be immune from some reprehensible conduct of its users.

Some types of conduct, however, should not be immunized even without reinterpreting the statute.  This final post in the series will tackle a couple of examples: marketing statements and celebrity impersonation.

Marketing Statements

As Eric Goldman points out, there is apparently some confusion about marketing statements made by companies that are rendered false by users. Two examples - First, an auction site might claim that its auctions are safe when in fact users commit fraud (court held no immunity).  Second, an adult web site might claim that its users are 18 when in fact some are minors who lie about their age (court held immunity because it was a "regurgitation" of user content).

The answer lies in a straightforward reading of the statute: providers shall not be held liable as speakers of third party content.  The statute says nothing about providers who make their own representations about what the third party content.  Providers who say "our users are polite" cannot be immune if the users are impolite.  Thus, neither the auction site nor the adult web site above would be immune.

This reading of the statute makes policy sense as well. While we want to encourage third party content and open contributions, we do not want to encourage false representations about such content. True, it is costly for providers to verify that their factual assertions are accurate, but not nearly as costly as trying to fact check each and every piece of content as it comes in.  We want providers who make representations about their quality of service to ensure that those representations are true, and letting a web site say "our users do ____" without actually enforcing a policy to make that fact true is bad policy.

Note that this provider/third party distinction would still immunize aggregation of third party content.  In Gentry, for example, eBay was immune even though it re-packaged the content in a variety of ways and aggregated user feedback. The difference is that eBay's interactive service managed the content, and eBay never represented that any of the information was true, verified, or otherwise accurate.

Celebrity Impersonation

Bill McGeveran discusses the problem of celebrity impersonation in online services such as Twitter. As he points out, lawsuits against the provider "would all be blocked, quite routinely, by section 230." But there is no reason why this must be so. 

First, celebrity impersonation is a violation of a right of publicity, which could be considered an intellectual property right (albeit a state right), which is exempted from Section 230's immunity.  As the comments to Prof. McGeveran's post make clear, there is a split (and more confusion) about whether rights of publicity are exempted.

Prof. McGeveran wonders whether it is good policy to give "more" protection to celebrities in this context when we give them less protection in other contexts, such as defamation. My answer is that ship has sailed.  We already give more protection to celebrities off-line, so doing so online, where you cannot actually see the celebrity's face or hear her voice makes distinguishing truth from fiction even more difficult. I also think that more harm than good befalls readers of celebrity impersonation (unless parody is clear), so the protection helps more than just the celebrity.

Even without considering a carve-out for rights of publicity, a straightforward statutory interpretation might still limit immunity for impersonating another person.  The statute immunizes a provider for content provided by a third party. This certainly doesn't immunize advertisements that a celebrity uses a service (see marketing representations, above), and it arguably does not immunize a provider's allowing user to impersonate another.  Yes, the provider would be immune from any of the content posted about the third party, but not necessarily for providing a system that does not, for example, check identity.  Identity is arguably not content.  This, I realize, is a much more controversial reading of the statute, but it arguably could apply even to non-celebrities.  That said, I think the policy implications of such a reading are troublesome, as the cost of verifying identity of all users - both in verification and in loss of anonymity - is not one we want providers to bear.

In any event, loss of immunity does not mean that the provider is necessarily liable.  I suspect that a common law notice and takedown procedure would work just fine for celebrity impersonations.  It is relatively easy to prove that a user is not in fact a celebrity, and the complainer is, in fact, a celebrity.

Section 230 is a powerful ally for online providers and a good thing for the internet generally.  These last two posts, however, show that courts should more closely read and follow the language of the statute, and that they can do so in a way that prevents at least some of the harms that come with unwanted user content without sacrificing the good that Section 230 provides.

This is not only my last post in this series, but my last post in this guest blogging stint.  Thanks for having me; I had a great time, and hope to be back soon!

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

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

More on the hedgehog below the fold.

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

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

The Vacuous Private Law of Homeowners' Associations (Below the Fold) After Vacuous Reflections About My Vacuous Life

Here we are, back for the fourth summer stint on PrawfsBlawg.  It's hard to believe, when Dan first invited me to do this, in July, 2006, I was an outsider to the legal academy looking in (per Bob Uecker, "gosh, they're having fun in there.")  Also, Twitter was unknown.  Twitter has done a lot to focus my blogging, because, call me an old whatever, but I can't believe anybody gives two hoots about the mundane details of my life, whether by blog entry or tweet, something I wasn't considering back in 2006 while in a New Orleans carwash watching what looked like melted rainbow sherbet ooze all over my car.  Steve Bainbridge seems to be able to get away with food and wine, but he seems to know what he's talking about.  I try to maintain a connection to something legal (or, if not legal, funny). 

If I were inclined to vacuous reflections about life, however, I would extol the pleasures of not of litigating, but of home brewing beer, a subject touched upon in these parts recently.  My son, Matthew, and I are on our  third batch of the summer, having invested $100 in the basic tools of the trade.  Our first 43 bottles were an Irish stout recipe, which we named "Max and Annie's Jewish Stout," after our two dogs.  We've since moved on to "Max and Annie's Michigan Porcupine Pale Ale" (a Sierra Nevada Pale Ale recipe), and "Charlevoix Steam Beer," which is presently fermenting in the crawl space where it is cool.  Our plan is to lay down a carboy full of mead for a full year in a few weeks.  This is a stretch but the legal connection is that I can't post the labels, because I am positive at least the second two violate a whole raft of copyright and trademark rights.

But enough of me.  Let's go below the fold where YOU can hear me whine about the governance of homeowner's associations.

We spend the summers in Charlevoix, Michigan, where we bought a lot sixteen years ago, and built a house twelve years ago.  In Michigan, there is something called a "site condominium," which is basically another way of imposing regulations in a subdivision of free-standing homes, and that's what we have.  There are thirty-six lots, and common elements, which consist of two roads and landscaping, and a beach lot with a removable "Brock Dock" through which residents not on the lakeshore itself have access to the lake.  You own your own lot and house in fee simple absolute, but the lot is established pursuant to a master condominium deed, which contains the property rules, and which incorporates a set of recorded bylaws, which establish the five-person Board of Directors (classified board - two and three seat classes, elected for two years) and the architectual review board, empower the collection of assessments for the maintenance of the common elements, and set use restrictions such as no short-term leasing, no open garage doors, and no boats, trailers, RVs, etc. left in the driveways.

If you want to experience the thrills of corporate governance in a microcosm, do as I have done and be a member of the condominium association Board of Directors for going on fifteen years.  I would have resigned long ago, except that nobody is as anal about the record-keeping as I am, and so I've been the secretary (and now webmaster) for all these years.  The lesson I take from the experience, as a legal theorist, is the tenuous (vacuous?) relationship among (a) the actual private law of the association as reflected in its governing documents, (b) what people think their actual rights are, and (c) how, when it comes to asserting and defending one's interests as between the law and the lore (or custom), a foolish consistency is the hobgoblin of little minds (see Prawfs guest blogger Brian Tamanaha on Law as a Means to an End).   Take, for example, a matter of no small interest:  the ability to see the lake from your living room if you have a house that is not on the lakeshore.  There are local zoning rules that define setbacks, as well as an architectural review board within the condominium association, but it has been almost impossible to restrain the lakeshore residents from building setback to setback (i.e., very large homes on relatively small lots), so that the space between the houses is a mere sixty feet, filled with fast growing (and kind of ugly) white pines that the original developer planted at the lot lines to keep the place from looking like a landing strip.  But there is no legal right anywhere in the documentation that says you have a property right in your view of the lake.  The only way to control this is through community controls on landscaping (which doesn't help with the stuff that was here before) or an appreciation of the Prisoner's Dilemma we find ourselves living in, and the ensuing need to cooperate.  Nevertheless, I find myself educating a neighbor every year on the fact that there is no legal right to a "view corridor" as it has come to be known.  If there were, I would have already done something about the forest of scrubby white pines that block my view.

Then there is the question of the separation of ownership and management.  We just issued a rule to the effect that there were to be no permanent firepits built on the beach.  You can have fires, but you have to use a portable firepit (they exist), which means that you clean up after yourself, and there's no lingering hot embers for a kid to fall into.  My publication of this rule prompted the following "Berle and Means" response from a neighbor (otherwise, a very nice person - beware the pitfalls of the inference one draws from e-mail):  "Does the board act and make rules based on the good of the people that live here?"  

Well, I could go on, but there is shameless self-promotion yet to be written.

Reinterpreting Section 230

My last post identified several puzzling results of current Section 230 jurisprudence, such as immunity for articles written by freelancers, but not by employees.  A common suggestion to remedy this and other conflicts is to withdraw immunity for any and all publication decisions by provider.  Thus, providers are liable if they reprint an email - they decided to publish.  They are also liable for the freelance article - they hired a contractor to provide content.

This is arguably within the ambit of the statute.  The immunity only extends to "information provided by another information content provider."  An information content provider, in turn, is "any person or entity that is responsible, in whole or in part, for the creation or development of information."

Under this proposal, the decision to publish something (or hiring someone else to provide it) constitutes "responsibility...in part, for the creation or development."  This makes the provider a partial information content provider, and thus the published information is not solely from "another."  This is the theory used in the Roommates.com case to deny immunity where the information users provide is in response to a provider written survey that suggests particular answers.

There's only one problem with this proposal - it's directly contrary to the statute's goals and language. See why after the jump.

As I noted in my first post in this series, Section 230 was enacted to remedy the costs associated with potential liability for editing and publishing decisions. This is reflected in the statute a couple of ways.  First, 230(c)(2)(A) immunizes "any action voluntarily taken in good faith to restrict access to or availability of material..." so that the chooosing whether to publish or not to publish something is immunized.  Further, "access software providers" that have tools to "pick" and "choose" content are immunized.  230(f)(4)(B).  Finally, the core immunization states that no provider shall be treated as a "publisher," and choosing content is exactly what a publisher does.

As a policy matter, I like to use blog comments as an example.  Some blogs allow the provider to deleted comments after they have been posted.  Others hide comments until the provider approves the comment for posting.  The statutory interpretation discussed above would immunize providers that delete after the fact, but not providers that approve comments for publication.  Something seems intuitively wrong with that distinction.  Further, holding those that approve comments liable would impose tremendous investigation costs, the very costs that the statute was written to eliminate.

There is, however, a better way, and the answer lies in a mostly ignored portion of the statute: interactivity.  Only providers (and users) of an interactive computer service are immune.  An interactive computer service "provides or enables computer access by multiple users to a computer server..."  This is, of course, quite broad - the statute specifically includes internet service providers, for example.

However, it stands to reason that the information at issue must be provided pursuant to the interactivity of the service.  The statute does not make this explicit, but to find otherwise would lead to an absurd result.  Newspapers would be immune for things they print because they also have a website, for example. 

There is support in the statute for only immunizing information directly provided through the interactive service. 230(d), for example, requires interactive service providers to notify their users about content filtering tools (I wonder how many sites seeking immunity actually do so). This implies that the information being provided is through the interactive service.  230(a) and (b) describe the findings and policy of Congress, which describe interactive services as new ways for users to control information and for free exchange of ideas.

Focusing on interactivity of the service clears up the conflicts discussed in my last post while still allowing free discourse on the internet. Blog comments are immunized regardless of filtering.  Freelance articles are not immunized, but user provided articles are.  AOL could have been liable for Drudge's statements, but information aggregators that gather news from a variety of sources automatically would be immune. Email listservs would be protected, but selecting a single email (not sent to an automated system) to republish would not be.  ISP's would still be protected for everything, as the "interactivity" of their service is simply providing the access.

I believe that this is how the statute was intended to work, and this is how I think it should work. The cost minimization policy makes great sense when you focus on the purposes of the statute. Providers who choose to republish content outside the auspices of the functioning of their service can do so cheaply - at least as cheaply as offline publishers.  Those who republish content as part of their service, however, are not required to shoulder the additional costs of policing all of the potential contributors to content.

In my next, and last, post in this series, I'll tackle a couple more policy issues that a slightly different interpretation of Section 230 would clear up.

A Good Idea Gone Awry

In my last post, I introduced Section 230 of the CDA, which immunizes online providers against suits based on the content of materials posted by another content provider.  While I argued that the underlying policy behind the section is sound, I believe that there are some fundamental flaws with the way it has been applied in certain cases.

This post will discuss those flaws, but only from an intuitive point of view.  My next post will tie my intuitions to the statute and argue for a different way to interpret the law.

The problem starts with an early case against America Online.  AOL had paid Matt Drudge for the right to post the Drudge Report on AOL.  Drudge published an allegedly defamatory statement, and the target of that statement sued Drudge (who would be on the hook as the "speaker" of the information) and AOL as a re-publisher.

In a relatively straightforward reading of the statute, the court ruled that a) AOL is an online provider, and b) Drudge was another content provider who provided the content over the internet. Thus, AOL was immune.

This ruling forms the basis for some strange conflicts.  The first is the employee/contractor conflict.  If the NY Times publishes a story written by an employee, it is liable.  If it publishes a story by a freelancer (e.g. contractor), then it is not liable.

The second conflict is the online/paper conflict.  If the Times prints the freelance article on paper, it is liable, but if it prints it online, it is not.

The third conflict is the republishing conflict.  If a user sends an email to an online provider, and the provider chooses to publish the email (even an edited version of it), the provider is immune. This immunity may hold, even if the provider goes out and finds the content on the internet (for example, quoting a portion of someone else's blog posting). With respect email, the Ninth Circuit has held that it is the provider's reasonable belief that the email was intended for publication, rather than the sender's subjective intent.

The fourth conflict is the paper/online receipt conflict.  If, instead of sending an email, the provider publishes something received in paper form, liability may attach, whereas the same content received over the internet is immune.

The fifth conflict is the editing/development conflict.  If a provider edits the content, it is still immune, but if the provider provides a "form" that guides the user to particular content, it can be liable as a co-developer of the information.

Some scholars, such as Eric Goldman, are just fine with these conflicts, and chalk it up to the important policy of encouraging internet based discourse.

I, however, think that Congress could not have intended some of these conflicts.  Most troubling to me is immunity for paid non-employee content.  Intuitively, it seems like liability for solicited content should not turn on the employment status of the person paid to provide that content.

I realize that this list of conflicts does not include "cyber-harassment" and other privacy/intimidation content immunized by 230.  I stand by my view that it would simply be too costly to require providers to review, fact-check, and determine the "privacy/harassment/intimidation" status of every piece of user content on its site.  That's not to say that providers shouldn't try - they should.  That's also not to say that a notice and takedown rule for content that is easily categorizable shouldn't be implemented. However, I fear that such policies would not be good for the internet.

As noted above, my next post will propose a way to read the statute that eliminates the conflicts identified above, even if it doesn't rid the world of sites like JuicyCampus.

I Do What I Want!

One of my favorite refrains from South Park is Eric Cartman's declaration that "I do what I want!" on the Maury Povich show. The phrase reminds me a bit of Section 230 of the Communications Decency Act, which immunizes web sites and "interactive computer service" from liability stemming from content provided by "another information content provider." At its best, 230 encourages wide collaboration of ideas (like this blog!) and encourages the airing of unpopular viewpoints - free expression in pure form.  At its worst, 230 allows a downward spiral of garbage, harassment, and anonymous defamation (think Juicy Campus).

Section 230 is one of my favorite topics that's not on my research agenda, so I plan to explore some of the issues in a couple of blog posts instead. Something seems wrong with how it has been applied, but I think it is difficult to put a finger on what and why, because the underlying policy makes sense.

In this first post, I plan to discuss the policy basis for Section 230 as well as the soundness of that policy.

Section 230 was enacted to cure a curious whipsaw in the common law.  The general rule of defamation liability is that publishers are liable for false statements and distributors are not unless they have notice.  This makes sense intuitively - Random House is liable for statements of its authors in books, but Barnes & Noble isn't liable for selling the book unless it learns of the false statement.

A couple of cases in the 1990's applied these rules to the internet - if you run a networked service (these were pre-internet - Compuserve and Prodigy) with user provided content, then you were not liable if you leave all user content untouched, because you are a distributor.  If, however, you edited a single posting, then you became a publisher, and were liable.

The costs of such a rule are tremendous - providers could either leave the site untouched, leading to no control over unabated user content (and we've seen how bad that can be) or providers would have to closely scrutinize every single posting made by a user, an extraordinarily expensive proposition.  The result in either case is a disincentive to provide online services for user content.

In steps the Communications Decency Act, which immunizes providers for all content provided by others, whether or not some of the provider polices that content.  The statute turns the common law rule on its head - it doesn't matter that there is direct notice of the falsity, a fact that most practicing attorneys I talk to have a hard time getting their arms around.  The statute has been extended to cover defamation, stock fraud, and all sorts of other wrongs, when such wrongs are perpetrated by users.
It can be a rough rule, as some have learned when they try to sue providers for the terrible things their users do. 

Why the CDA, though?  You would think an act dedicated to limiting online indecency would not allow for this kind of free-for-all.  The argument is simple enough.  Under the common law rule, people had a disincentive to do any kind of filtering of indecent or offensive content, lest they be held liable for the borderline stuff.  So, the CDA immunizes providers even if they do filtering (and even has a section that expressly immunizes it), so that providers have an incentive to weed out the worst, even if some slips through.

When approached from this angle, the policy behind immunity is sound.  After all, those who want garbage on their site would choose not to filter anyway, and would have always been immune under the common law.  This way, those sites that want to do some clean-up now have an incentive to do so because they, too, are immune.

Of course, the policy could have gone the other way, holding people liable even if they did not filtering, but attaching liability for passiveness would force all providers to closely scrutinize (and fact check!) every single piece of content provided by a user. The costs of such a system would be astronomical, and would dissuade all sorts of web sites that we know and love today - blogs, facebook, linked-in, youtube, and any other site that allows user content.

The middle ground is a notice and takedown system, but this too is problematic, as people would ask sites to take down all sorts of content is properly posted.  Those who follow the DMCA can attest to the overuse of takedown notices for content that is legally posted. Here, at least, the question is closer based on costs and benefits, but I still lean toward free discourse.  I'm willing to be persuaded to the contrary, and a lot of scholars are looking at ways to align incentives properly.

So, that's a basic introduction to the immunization provided by 230. While I think the policy behind the rule is fundamentally sound, the courts have mucked up the statute a bit, and in ways that blur the reason why we have the statute in the first place.  I'll address these points in my next post on this subject.

Facebook and More Network Economics

After years of protests, I finally joined Facebook last week.  Much to my surprise, I'm really digging it.  I realize that I'm the last person on the planet to figure out how great Facebook is (except my wife, who is still a holdout), but that's kind of the point of this post.

As I noted in my last post, network benefits accrue when the value of something goes up as more people use it.  Facebook is the poster child for network benefits.  The really shocking thing (to me) is that just about everyone I ever met, from brief professional acquaintances to high school friends I haven't seen or talked to in years are already members. I'm on LinkedIn and Plaxo, but neither of these two come close.

The twist here is the competing economic and privacy interests to get the most out of the site.

I'm sure a bunch of people have written about this, but that's why I'm blogging about it rather than writing a law review article.

It seems that the primary membership draw is that as more people join, the cheaper it gets to connect with them.  I am a heavy (and I mean heavy) user of email. For example, my voicemail comes to my email box, and then I email the caller a response.  Email cannot come close to competing with Facebook for easy distribution of information, whether mostly useless status updates to "Hey this is interesting" posts.  It also allows for cheap sifting through those posts without having to read through a bunch of email. The upside is huge - I'm keeping up with happenings of people I care about, and letting them know what I'm up to.  This is stuff that wouldn't merit a phone call, but that we all might want to know about anyway.  Great stuff.

But there's a countervailing privacy cost.  As it gets cheaper to give and get information, it gets harder to control who gets it.  I might not want everyone to see family photos or career thoughts.  The default sharing on Facebook is pretty broad (a fact that has received much criticism), and as such it has cost me time and effort to figure out how to narrow who gets information. 

For example, because the default "share" status updates and "links" apps don't have a filter to limit who gets information (through the very nifty friends lists, which are also costly to keep updated), I have posted some updates using the "notes" app, which allows more limited distribution.  It works fine, but it's a few extra steps for me and for the reader, who has to click on the note to read the whole thing.

The upshot is that there is a tradeoff (for me at least) between too little and too much connection. Perhaps a couple tweaks to the Facebook interface (like allowing limited sharing and links) might help, but not completely - the privacy settings are so numerous and complex (a good thing from a privacy point of view) that I'll always have to check them and update them periodically. I guess you have to take the bad with the good.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Four Reasons Empiricism Won’t Fade Away This Time

Although no one has “talked me down” from my bull market hypothesis about the historic trends in empirical movements in law, I believe that this third period of interest will be far larger and more enduring than either of the previous two even if the economy takes a very long time to recover from its current malaise.  My arguments in no particular order include the following: Phd-ification of the professoriate; the coming of empirical lawyering; business law; and multiculturalism.

At the outset, I should emphasize that I mean empirical legal studies in a far broader sense than is meant by the journal or the association that bears those names, and includes not only the qualitative social science types that are still feeling marginalized in those venues, but also scholarship influenced by the humanities and cultural studies.  In short, empirical on my account is not a question simply of methods but of the location of legal knowledge outside the boundaries of formal law and its institutional practices.

Phd-ification
Readers of this blog with long memories will recall that I’m not a proponent of making the Phd an entry requirement for law teaching.  One of the things that makes contemporary law schools so interesting in my view is that the standards for what counts as a legal scholar have never been more heterogeneous.  However, there are innumerable good reasons why a Phd provides advantages to people seeking law school teaching jobs and their numbers have been growing steadily for several decades.  What is essential is not that these Phd-eed scholars will define non-empirical work as outside the canon, but that their intellectual interests and sensibilities create an enduring base for empirical scholarship inside the legal academy.  In contrast, the Realists lacked not only Phd’s (as did many of their social science colleagues) but that they lacked any real training or skill in social science (or the humanities for that matter).  The “law and society” scholars of the 1960s, did have Phd’s (in many cases) and solid social science tool kits, but they were largely based outside of law schools and only penetrated in a few distinct schools (Wisconsin, Berkeley, Buffalo, Denver, Miami, perhaps a few others).

Empirical Lawyering
As I argued in a UC Davis Law Review article on the 40th anniversary of Katz v. United States last year, for the first time we are approaching a time when empirical skills and knowledge are sufficiently available to lawyers themselves that the business of law outside the law schools is becoming strikingly more empirical.  The Warren Court’s doctrines invited all kinds of empirical lawyering, but the supply side was not there.  Today it is (beginning) to be.

Business
Both the Realists and the Law & Society movement had a decidedly left and social justice orientation.  This was scholarship and advocacy with a mission to improve law’s relevance to the poor, the marginalized, and those generally who find themselves “against” the law in all too many circumstances.  Today, there is little doubt that the center of gravity in empirical law is coming to be the business curriculum.  While it is easy to drop or marginalize social justice scholarship and pedagogy (especially during economic downturns), the same is not true at all for the business curriculum.

Multiculturalism
Throughout the 20th century, law became steadily more doctrinally porous to consideration of social circumstances and contexts (think of the steady march of “manslaughter” doctrine from its common law set of fixed forms of mitigated killing to a generalized consideration of emotional disturbance).  This could be done with little actual presentation of empirical evidence about those circumstances through the sleight of hand worked by the magical word “reasonable.”  So long as judges could get away with consulting their own lived experience to decide what was “reasonable” (an empirical study with an “n” of 1), there was no real opening for empirical advocacy.  This magic trick was supported by the continued cultural hierarchy that place white Protestants from northern European backgrounds at the top of virtually all social and economic ladders in America (as true in the 1960s as it had been in the 1920s).  As the multicultural make-up of the US (and other peer societies) becomes undeniable and irreversible, tolerance for allowing judges to use their own cultural assumptions as a knowledge base about social context is collapsing.  The well-equipped lawyer of the near future will need not simply to be able to consult social science but to bring a sociological imagination to their lawyering (whether litigation or transactional).

What we don't see

One of my favorite blogs (law or otherwise) is Mirror of Justice. Over there, Rick Garnett recently linked to a column by Spengler in the AsiaTimes. The column essentially begins with then Cardinal Ratzinger's notion that "the development of economic systems which concentrate on the common good depends on a determinate ethical system, which in turn can be born and sustained only by strong religious convictions." 

Putting aside, at least for now, the notion that such systems must be based on "strong religious convictions" (which I don't think is necessarily so, but may turn out to largely the case), I think that this observation is indisputably true. I agree with some of my interlocutors in our previous discussions of the implications of and potential responses to, the financial crisis that markets require both rules and trust which is ultimately rooted in whether participants act in good faith. I am, as I have said, skeptical of the idea that the rules can displace the need for good faith and suspect that the attempt to bend them to that end will create more harm than good.

But the Spengler column brings to mind a few things that don't get enough attention in our public debates

As lawyers - and particularly as legal academics - we tend to pay a great deal of attention to legal superstructure. As a profession that has come to be heavily influenced by economics, we emphasize individual incentives. And so our debate about episodes like the financial meltdown tend to focus on those superstructures. Did we tax too much or too little? Did we overregulate or underregulate the market?

Spengler suggests that the cause of the crisis was as follows: "[T]he bulge of workers in the US and Europe approaching retirement age is the ultimate cause of the financial crisis. Too much capital chased too few investment opportunities, and the financial industry met the demand by selling sow's ears with the credit rating of silk purposes."

This may not fit comfortably with anyone's ideological predispositions, but it rings true to me. Maybe its because I was born on the downward slope of the baby boom and my classmates and I lived chasing after the jobs that our older brothers and sisters had filled and trying to buy real estate at the inflated prices that they had created.

I have always thought that the impending retirement of the first wave of boomers would depress stock values and housing prices. While I tend to think of it in terms of too many sellers at the same time, I fear that the underlying lack of demand caused by demographic unevenness brought us to the point of too much demand chasing too little supply sooner that I thought it would.

There's much more to be said about this, but the larger point is that demographics can swamp our attempts to structure society.

Spengler's second point is that this demographic misfit is caused by a lack of character, i.e., a hedonism that resulted in a baby bust. I don''t intend to get into that, but it does remind me of another point that we often lose sight of. Democracies and free markets do, I think, presuppose persons of a certain moral character. In my view, this breaks down the sharp divide that those on the left and the right often want to draw between social and economic issues.

But that's another post. Or book.

. 

Retribution: an emerging consensus?

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

Now my question: does anybody disagree?

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

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

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

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

Retribution: duty, or good?

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

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

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

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

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

Creeping consequentialism, part IV

My stint as a blogger is drawing to a close, so I ask readers' indulgence as I inflict one further set of thoughts concerning the danger of unreflective consequentialist (especially utilitarian) thinking, in both morality and law.

3.  Even when consequences matter, maximizing the net value of consequences is not always the best moral or legal approach.

From the obvious fact that we often do and often should consider the negative and positive consequences of a possible course of action, it is easy to conclude that maximizing the positive consequences relative to the negative ones is what actors typically do, and should do.  Both conclusions are false.  Raz gives the example of someone deciding whether to move to a new location for an attractive new job, even though this will make it more difficult to keep up old friendships.  It is tempting to analyze this as: "The actor puts a price on friendship, and at a certain price, he will give up the friendship for personal gain.  He will and should maximize the net value of personal gain and friendship."  But that need not be the way the actor thinks about the balance of considerations, and it certainly is not a morally attractive way to analyze the tradeoff.  For example, the actor might owe his friends some minimum of concern, even if this causes him enormous inconvenience.

In many legal contexts, "maximizing good consequences" is an especially dubious criterion.  Even if prosecuting victims of sexual assault for dressing provocatively would be an effective way to prevent such assaults, principles of just deserts, and of liberty of movement and expression, militate strongly against this solution.

4.  The supposed comparative advantage of consequentialism over nonconsequentialism is sometimes based on the false assumption that all nonconsequentialists are absolutists who never balance one set of considerations against another.

True, some retributivists, corrective justice advocates, and other nonconsequentialists offer absolutist views and deny that consequences ever matter.  Some even deny that countervailing reasons counter the absolutist force of their principles.  (Kant might have held such a view of criminal punishment, and Ernest Weinrib seems to hold such a view of corrective justice.)  But there are many, many counterexamples.

5.  The supposed "empirical" advantages of consequentialist approaches--that they are more empirically grounded and more testable than nonconsequentialist approaches--are often overstated.

True, the consequentialist is more likely than the nonconsequentialist to make testable predictions about whether a moral or legal rule is "better" than an alternative.  But we often forget that these predictions are testable only after the theory has make a controversial value judgment about which consequences matter, and how much they matter.  In criminal law, is it more important to prevent armed robbery than to prevent a rape that does not involve the use of force?  More important to prevent three premeditated murders than to prevent four negligent accidental killings?  (Or to prevent ten premature deaths by providing better health care?)

Also, nonconsequentialists do care about the empirical world, in two ways.

(a) Often they do care about consequences; but they decline to give consequences an exclusive role in justifyiing or prohibiting a course of action.

(b) The necessary conditions of a nonconsequentialist theory do consider empirical facts.  A liberal retributivist believes that criminal defendants are less to blame if they faced social conditions that made it especially difficult to avoid crime.  Most retributivists believe that some mental disorders render defendants substantially incapable of moral responsibility.

I do admit, though, that nonconsequentialists too often defend relatively abstract principles, as if the empirical facts about human psychology, genetics, and social circumstances have no bearing on moral and legal obligations.  Fortunately, some of the new work in neuroethics and in empirical law and philosophy is beginning to remedy this problem.

Creeping consequentialism and insidious economics, part III

Thanks again to commentators for offering thoughtful responses to my last post.  Some reactions:

1. JP doubts the coherence of the distinction between consequentialism and nonconsequentialism.  And Aaron Williams suggests that calling something intrinsically wrong is "just dogma."

These are familiar and understandable concerns.  To skeptics, nonconsequentialist arguments are either ipsi dixit, and less rigorous or less fully justified than consequentialist arguments; or else disguised consequentialist arguments. 

For example, when a court says that it is unfair for a negligent victim to obtain full tort recovery, doesn’t it really mean that the negative social consequences of allowing full recovery here outweigh the positive ones?

Not necessarily.  The court might share my doubts that a legal rule limiting the recovery of negligent victims will affect their future behavior. (A jaywalking pedestrian is already ignoring a risk of self-injury; will her incentive to take care really be greater if she now also knows that, if she is run over by a tortious driver with substantial insurance, the damages she would obtain will be less?)  Yet the court might believe that it is unjust to require the injurer to pay full damages.

But doesn't "injustice" here translate into "creates (net) bad consequences"?  I don't see how it does.  To be sure, the court cares about "consequences" in a minimal sense: a legal rule permitting negligent victims full recovery is a "consequence" that the court wishes to avoid.  But that is a trivial type of consequence for our purposes: the real question is whether the justification for a rule of diminished recovery is based on consequentialist reasoning (such as utilitarian or economic analysis), or instead on other grounds.

True, specifying what is "unfair" about a victim's obtaining full recovery, or about an injurer creating unreasonable risks to others without having to pay for them, is a complex matter.  But that does not mean that the underlying justification really must be consequentialist. 

(Here is one useful overview of nonconsequentialist, and specifically deontological, analysis, clarifying how it differs from consequentialism.  And here is a useful overview of consequentialism, indicating some ways that it might accommodate deontological objections.)

But there is a wrinkle in this example, and in all cases where we evaluate whether a person's conduct is unreasonably risky.  It is especially easy to fall into the trap of assuming that any evaluation of risky conduct must be consequentialist in the deep sense, simply because we must consider the expected harms and benefits that might flow as a consequence of taking the risk.  But that assumption is unwarranted.  Shooting a gun in the direction of another person is often unjustified conduct because of the risk that it might kill, or wound, or frighten the victim.  But the reason it is unjustified could be because it is socially inefficient behavior (warranting legal sanction on a consequentialist account) or because it shows flagrant disrespect for the rights of the victim (perhaps warranting punishment, on a just deserts or retributive account; or warranting a duty to compensate if harm results, on a corrective justice or fairness account).

Put differently, the fact that possible or probable consequences of one's action are morally and legally relevant to its permissibility does not mean that permissibility is just a question of maximizing good consequences.  Another example: most agree that a right of self-defense depends on the actor's believing that an aggressor is confronting him with some threshold level of risk of harm (i.e., some probability of a bad consequence), and yet most accounts of why we have a right to self-defense are not consequentialist in the deep sense.  E.g., a nonconsequentialist account could rely on the defender's right of autonomy, or the attacker's forfeiture of his right to life.  (I have given a fuller account of this argument here.)

2.  JSD points out that "reasons" can refer either to the agent's actual motivating reasons for action, or to the normative reasons that, we might say, should have motivated the actor.  JSD says that only normative reasons explain the permissibility of an action.  Maybe.  On the other hand, among criminal law theorists there is a raging debate over whether subjective reasons affect permissibility.  If A shoots B, not knowing that B was about to attack him, is A's conduct justifiable?  Or is it only justifiable if he was subjectively acting for the right reason (self-defense) or at least with an honest belief (that B was about to attack him)?  T.M. Scanlon's new book also explores this issue from the perspective of moral philosophy.  (E.g., does the permissibility of a bombing raid that kills civilians depend on the purposes of the bomber, or of the person who planned the bombing?  Or does permissibility turn only on the objective reasons supporting the raid?)

3.  Thanks to Patrick O'Donnell for his reminder of how widely these debates over how to justify moral and legal norms extend--not only to tort law and criminal law, but also to health law, and indeed, I would say, to every moral and legal issue.  And I share his admiration for the work of Robert Goodin, who endorses a nuanced form of consequentialism for public policy decisions.

4. Is a sadistic pleasure (from driving into a crowd, say) really irrelevant to permissibility, or is it simply outweighed by other reasons?  A good question.  But many utilitarians are willing to "launder" or exclude sadistic, malicious, racist, and some other preferences, giving them no weight in their calculus.  Usually it will not matter whether we launder such preferences; for they will normally be outweighed by the bad consequences they are associated with.  But on the margin, such preferences, if not laundered, could make a difference to permissibility.  We do not permit teenage thrill-seekers to drive faster on public roads than other drivers who get no special thrill from driving fast; but shouldn't a thorough (nonlaundering) utilitarian permit the teenager to drive a bit faster, assuming that all other factors in the utilitarian calculus are the same for both sets of drivers?  To be sure, it would be impossible to accurately detect who genuinely obtained that special thrill; but quite apart from this practical problem, I believe that in principle we should, in this context, judge the thrill of speeding irrelevant to permissibility.

4.  Ohwilleke comments: If juries are given a Learned Hand instruction, in a form that asks them to apply expected costs and benefits in a utilitarian way, they are likely to ignore the instruction, and rely on their gut.  This does not surprise me.  Part of the reason for this is that most ordinary people are not straightforward utilitarians.  Their "gut" feelings of fairness often reflect nonconsequentialist principles of justice.  (But it is also true that their "gut" sometimes reflects unconscious psychological framing effects, hindsight bias, or an unrealistic assumption that if an activity or product is risky, the risk must be unjustifiable.)

Creeping consequentialism and insidious economics, part II

Thanks to those who posted thoughtful comments on my earlier post.  There are many reasons why the methodology that I critiqued, a comprehensive balancing of positive and negative consequences, is problematic.  And the comments pick up on a number of these.

First, not all consequences should matter (either on the question of the permissibility of primary conduct or on the question of the desirability of a legal rule).  Second, not all reasons should matter.  Third, even when consequences or reasons matter, maximizing the net value of consequences or reasons is not always the best moral or legal approach.  Fourth, the supposed comparative advantage of consequentialism over nonconsequentialism is sometimes based on the false assumption that nonconsequentialists are absolutists who never balance one set of considerations against another.  Fifth, the supposed "empirical" advantages of consequentialist approaches--that they are more empirically grounded and more testable than nonconsequentialist approaches--are sometimes overstated.

That's quite a list!  But let me get started...

1.  Not all consequences should matter.  Any plausible consequentialist approach must make value judgments.

Obviously it is not permissible for Joe to drive home at 90 m.p.h. in order to obtain the gun he needs for a bank robbery.  Bringing about an independently immoral consequence is never (or almost never?) a permissible reason for creating a risk.

Nor may Sarah drive that fast just because she wants to see the start of Obama's inauguration live on TV.  Here, though, I would not say that the consequence should not matter at all.  That beneficial consequence could justify her driving home at a safe speed rather than walking home, even though safe driving creates much greater risks than walking.  The important point: what consequences matter, and how much they matter, is itself a contestable question.  Sarah's very strong preference to see the inauguration might have very little social value.  Utilitarians differ greatly in how they define utility (as preference satisfaction, objective good, etc.), and consequentialists differ in how they define and value the relevant consequences (states of affairs? levels of welfare? promotion or nonviolation of rights, too?).  Thus, one supposed comparative advantage of consequentialism over nonconsequentialism, that it does not require difficult value choices, is, at the very least, exaggerated.

Consequences are sometimes irrelevant, and always need normative specification, not just when determining the permissibility of primary conduct, but also when determining what legal rule is desirable.

Of course, even if we embrace a thoroughly consequentialist framework, it does not follow that the legal rule should exactly mimic the utilitarian standard of primary conduct.  For example, even if the law should try to induce actors to engage in primary conduct that satisfies a utilitarian standard ("take a risk only if this maximizes the expected benefits over the expected costs"), legal liability for negligence (defined this way) sometimes will not be worth it--in light of the administrative and error costs of implementing the legal rule.  Strict liability and no liability are sometimes better means to the end.

But the deeper problems with looking only at, and at all, consequences, recur at the level of desirable legal rule, too.  For example: a rule reducing or eliminating recovery for personal injuries when victims act negligently might have no beneficial incentive effects on victims.  Yet there is a plausible nonconsequentialist reason for limiting their recovery: it is unfair to require injurers to pay full damages when victims are also at fault and causally contribute to their own harm.   And: we might conclude that certain consequences matter very little to the desirability of legal rules.  If we are trying to decide whether to require therapists to warn potential victims of serious threats made by their patients, perhaps we should ignore the harm that this rule will do to the prestige of the profession of therapy, while we should weigh heavily the risk that the rule will discourage violent patients from seeking help.

2.  Not all reasons should matter.

I agree with John Oberdiek's comment: the "just balance the competing consequences" approach seems attractive in part because this approach is easily confused with a far more compelling "just balancing the competing considerations or reasons" approach.  Why the confusion?  Perhaps the ambiguous notion of the "purpose" or "point" of a standard or rule is to blame.  Every moral standard or legal rule indeed must have a justifiable rationale.  But this does not mean that the "point" or rationale must be to bring about good consequences.  For example, some conduct might be intrinsically wrong, and some legal rules have an expressive "point".  (Why should South Carolina not fly the Confederate flag at the statehouse?  Because the state should not associate itself with its racist past.)  When we ask what the "purpose" of a moral standard or legal rule is, sometimes we fall into the unwarranted assumption that "bringing about good consequences" is the only eligible answer.

Nevertheless, not all reasons (even reasons other than achieving good consequences) should matter.  Perhaps the (actual) reason D speeds near a crowd of pedestrians is that he derives great enjoyment from seeing their horrified and fearful reactions.  That reason should be irrelevant to the moral and legal permissibility of his risky conduct.

(Some might call this reason a "consequence" of D's risky conduct, but this seems to collapse the distinction between consequentialist and nonconsequentialist approaches.  It need not be the case that D instrumentally selected speeding as an effective means to produce sadistic pleasure; rather, D might simply have been motivated by sadism, a motive that is part of why his risky conduct is impermissible.)

Put differently: everything depends on what counts as "a reason" or "a good reason" for an action.  Clearly the actor's actual reasons don't always have as much weight as she thinks they should.   Sometimes they should not count at all.  (To be continued...)

Creeping consequentialism and insidious economics, part I

OK, the title is hyperbolic.  But here is what troubles me.

You are teaching or analyzing legal rule A.  Suppose rule A seems to express an underlying standard of undesirable or impermissible conduct C.  For example, the legal rule is: "D must pay compensatory damages to P when D's unreasonably risky conduct harms P."  The underlined phrase expresses a norm of impermissible conduct.

Unthinking consequentialism can creep in at both levels of this analysis--in your analysis of what counts as creating an unreasonable risk to others, and in your analysis of whether a legal rule expressing this standard of conduct is normatively desirable.  This danger is especially pronounced in analyzing tort doctrine, but it arises elsewhere, too.

Consider first the standard of conduct.  How do we decide what risks are unreasonable?  (For example, whether it is unreasonable for D to speed to the hospital to obtain care for his sick child.)  Here is an answer, and one that appears so self-evidently correct that any alternative analysis seems irrational.

1.  Consider all the bad consequences of D's taking the risk.

2.  Consider all the good consequences of D's taking the risk.

3.  If the good outweighs the bad, it is permissible to take the risk.  If not, not.

(The famous Learned Hand test is often viewed as expressing this approach: you are negligent if but only if the burden of taking a precaution against the risk is less than the benefits of taking the precaution, in the form of reduced risks of harm to those exposed to the risk.)

If you don't like this approach, what is wrong with you?  Don't you care about consequences? Don't you prefer good to bad?  (Or, under marginal versions of this approach, don't you prefer more good to less good, and less bad to more bad?)  Are you fanatically opposed to balancing?  Even though, in your own life, you routinely balance the advantages and disadvantages when deciding between option A and option B?

Consider next the desirability of the corresponding legal rule: if an actor fails to act as specified by this standard of reasonable conduct, he must pay compensatory damages to the victim.  How do we decide the desirability of this rule?  Why, in exactly the same manner.  This is a matter of basic rationality, after all.

1.  Consider all the bad consequences of enforcing this legal rule of negligence liability.

2.  Consider all the good consequences of enforcing the rule.

3.  If the good outweighs the bad, this is a desirable legal rule.  If not, not.

Again, the logic appears to be inexorable.

This approach is enormously attractive for a number of reasons.  It appears to be thorough, empirically grounded, pragmatic, rational, and focused on human welfare.  It gives us a rigorous method, quite unlike the fuzzy soft-headed intuitions of those who defend rights-based and other nonconsequentialist approaches.  (A colleague in the philosophy department recently remarked to me that many of her undergraduates, when first introduced to philosophy, are seduced by the simplicity and apparent inevitability of utilitarian thinking.)

I do believe that economic and utilitarian analysis have value, both descriptively and normatively.  But the account I have just given greatly understates the difficulties with these forms of analysis, and overstates their ability to describe the world accurately and to prescribe norms that we should live by.  (To be continued...)

Bounded Rationality and The Price is Right

I just read a really great paper by Jonathan Berk and Eric Hughson called "Can Boundedly Rational Agents Make Optimal Decisions? A Natural Experiment."  The Berk and Hughson examine a sample of games on the game show The Price is Right to see whether contestants make optimal bidding decisions. 

The two games they consider are Contestants' Row (where you bid on the price of the prizes - whoever gets closest to the price without going over wins).  The second is the Wheel Spin - whoever gets closest to 100 wins.   You must win on Contestants' Row to get to the Wheel Spin.

Their results are interesting - they find that a large percentage (nearly 50%) of relevant bidders on Contestants' Row bid suboptimally - in other words, they don't bid $1 over one of the other bidders.  This result is interesting, because that strategy is pretty easy to figure out.  At the same time, about 95% of Wheel Spinners spun optimally, despite the fact that the Wheel Spin decision is a much more complex decision.  In otherwords, a large portion of contestants were irrational in the easy game and highly rational in the difficult game.

Some comments on the implications and on the reasons follow the jump.

The implications of the study are important for  the study of behavioral economics (or law & economics).  If bounded rationality is divorced from the difficulty of the decision, it makes it much more difficult to model behavior in any predictable manner.  I suppose that the non-economist answer to that is "Duh!"

Berk and Hughson discuss possible reasons for the phenomenon they observe, such as learned behavior (both in the course of the game and from watching on television) and irrational focus on the prize value in the bidding game.

I have a couple of comments that they don't address.  First, while the discuss the Wheel Spin bonus if you hit exactly 100 and dismiss it as something that doesn't affect optimal behavior, they don't discuss the $500 bonus one wins if he or she bids the exact prize value on Contestants' Row.  In other words, it may be optimal to bid more than $1 over the next closest bidder when shooting for the bonus.

This leads to a second possible explanation, though I'm not sure how I would categorize it.  Contestant's Row is a guessing game that involves human estimation skills.  As a result, participants (at least some of them) may have faith in their estimation prowess in hitting the exact number.  As a result, they may not view these suboptimal decisions as irrational; instead, they believe they can find the right answer.

The Wheel Spin, however is all random and everyone knows it.  Contestants have no illusion that their special spinning skills will somehow get them to 100.  I suspect that if any modicum of skill were involved in the Wheel Spin, we would see a lot more suboptimal behavior in people trying to go for the bonus.

In any event, this is an interesting short article worth a look.

H/T: Legal Theory Blog

The Judicial Process, um, Movement(?)

One of the things that seems critical to establishing oneself as a scholar is becoming a part of a broader community of scholars.  Six-plus years into my academic career, I feel only partially successful in this regard.  Here's why: When people ask me what I write about, I usually say "the judicial process."  It's an accurate answer.  Nearly all of my scholarship has to do with judging, including the processes of appellate review, the functions of judicial opinions, and a concept I've called "judicial inactivism."  I find it all fascinating and important, and expect it will keep me busy for the rest of my career.

But as I scan the schedule for the upcoming AALS meeting, I feel as though I lack a home.  It's not that there isn't plenty of stuff written dealing with the judicial process. Nearly every day Larry Solum brings my attention to at least one article that falls into the judicial process category. But the authors seem to have primary allegiances elsewhere - they are Civ Pro people, or Con Law people, or Empirical Legal Studies people, or what have you.  Nor is there a recognized Judicial Process component of the curriculum.  (I'm in the early stages of trying to change that.  More on that in a subsequent post.)

This strikes me as odd.  And so I wonder: Should there be a judicial process community in some formal sense?  After all, if I may understate the matter somewhat, courts and judges play a central role in this enterprise of ours.  Given the constant chatter about judicial activism and the various threats to judicial independence and the explosion in the amount of empirical work being done on courts and the kerfuffles over unpublished opinions and on and on, oughtn't those of us who write about judging and courts at the very least get together from time to time to talk about what we're up to?  Am I alone in this?  If someone were to throw such a party, would anyone come?

Chicago Cubs and the Curse of Legal Formalism

On Saturday night, the Los Angeles Dodgers beat the Cubs 3-1, completely a dominating three-game sweep in the National League Division Series in which they outscored the Cubs 18-620-6. Thus will it be more than 100 years between world championships for the Cubs, who famously last won in 1908. This century of losing has been blamed on everything from billy goats to black cats to twenty-something fans in head phones to the refusal to install lights at Wrigley Field. I want to suggest a new source: legal formalism.

In addition to being the centennial of the Cubs' last championship, 1908 also was the centennial of one of the game's most infamous gaffes, by Fred "Bonehead' Merkle. Some detailed history. On September 23 of that year, the Giants and Cubs, tied for first place, played at New York's Polo Grounds. Tied 1-1 with two outs and runners at first (Merkle, then a rookie first-baseman) and third, the Giants' Al Bridwell singled, scoring the runner from third, and apparently winning the game.Giant fans immediately ran onto the field, a common practice in those days, both to celebrate and to head to the stadium exit in right field that was closest to the trains and streetcars home. To get out of the crowd, Merkle turned right and headed for the clubhouse, which was located behind centerfield (the Polo Grounds remains my favorite of the now-deceased ballparks), without touching second base. That left the force at second base in effect. Amid the chaos, Cubs second baseman Johnny Evers got a ball (no one knows for sure whether it was the actual ball that had been hit on the play and that fact never has been established; some stories have a Giants player throwing the actual batted ball into the stands) and tagged second base and umpire Hank O'Day called Merkle out on the force, which nullified the run and ended the inning. The game then was called because of darkness and declared a tie. The teams finished the season tied, so the tie game was replayed; the Cubs won 4-2, winning the pennant and then the World Series--their last.

And here we have legal formalism at work. O'Day's call was correct under MLB rules. A run does not score if a trailing runner is forced out at another base for the third out of the inning. And there seems no dispute that Merkle did not touch second. On the other hand, the crowd had stormed the field, so Merkle's decision to get off the field as quickly as possible is understandable. It was common in those days for fans to come onto the field and for players to head for safety, even without touching the base. The rule was not well-known and was not regularly, if ever, enforced in end-of-game situations. And, of course, we do not know whether the ball that Evers had when he tagged the base was the right ball. On the other hand, some accounts have Evers trying the same move a few weeks earlier on the same umpire--it did not work then because the umpire had not watched to see whether the runner touched second. But O'Day was on notice when it counted.

So how does karma work? One way would be to deny the Cubs the benefit of the "tainted" victory by having them lose the World Series. Another way would be to give the Cubs the benefit of the Series that year--and never letting them have it again. So, if you are an 8-year-old Chicagoan in 1908, which do your choose?

By the way, I have been looking at current Major League Baseball rules (Download 04_starting_ending_game.pdf) and it appears the result would be the same under current rules. Rule 4.09(a) addresses this situation and requires that all runners touch the next base. Rule 4.09(b) provides that in a walk-off situation (run scoring in the last half of the final inning), the runner on third must touch home and the batter must touch first, with no mention of any other runners. But that rule is limited only to plays with the bases full which force the runner on third to advance--not the situation in 1908, because the runner on third was not forced to come home. A comment creates an exception when fans rush the field and prevent either from touching the necessary base, with the bases awarded because of fan interference. But that comment is limited only to Rule 4.09(b), which, again, does not cover the 1908 situation. Am I reading the rule correctly?

Or maybe umpires impose flexibility as a matter of their own discretion. In 1976, the Yankees won the ALCS when Chris Chambliss hit a home run to lead-off the ninth inning. Thousands of fans descended on the field to celebrate, pull up grass, and (I have read) try to steal pieces of padding off the outfield fence) as Chambliss tried to get around the bases; he eventually gave up and ran for the safety of the clubhouse. Later, after the field had been cleared, the umpires pulled Chambliss out of the clubhouse and had him touch home plate. Formalist, to be sure. Call this a mix of formalism and pragmatism--make sure the batter touches the bases, but allow him to get out of the madness of the moment without penalty.

Are Students Legal Realists?

We are one month or so into classes and I'm worried that my 1Ls have concluded that judges' opinions are determined by what they had for breakfast.  (Bell Atlantic's re-reading of Conley v. Gibson first pushed them this way.)  Putting aside the concerns that this badly mischaracterizes legal realism, my sense is that this attitude towards judicial decisionmaking gives them an excuse to throw up their hands and refuse to wrestle with lines of cases.  I do think it is a good lesson that judging involves the exercise of "judgment" and that reasonable minds may differ on many litigated issues.  But I also think that it is at least plausible that judges' decisions are limited by institutional constraints, the constraints of having to construct a legal argument that is not laughable, and/or educational norms.  I think it also ignores differences among the courts (e.g., district court vs. the Supreme Court) and among subjects (e.g., constitutional law vs. almost anything else).  One of my colleagues responded by pointing to Bush v. Gore, which is difficult to argue with, but I still don't want my students to start there; this early notion of legal realism is too much like a free pass.

Executing Retributivism is up on SSRN

Just a quick note to point out that I've placed on SSRN a draft of a new paper I earlier discussed on the blog. The paper is called, at least for now, Executing Retributivism. Unlike most of my work, which is largely normative legal theory applied to discrete policy issues, this piece is quite a bit shorter (!) and more interpretative in nature: that is, it furnishes a close read of a relatively recent case of SCOTUS, Panetti v. Quarterman, and tries to situate that case's reasoning within the theoretical framework I've deployed before in the context of the death penalty. I argue that this decision has far greater consequences than previously realized if the decision is read properly and extended consistently. Here's the abstract:

In Panetti v. Quarterman, a Supreme Court case from last year about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. As this Essay explains, the Court’s “rational understanding” requirement only makes sense in light of a larger theory that understands state punishment primarily as a communicative and retributive encounter between the state and the offender. Once contextualized within that theoretical framework, the Court’s reasoning raises two profound and insufficiently appreciated consequences.

First, the Panetti decision upends the Court’s Eighth Amendment jurisprudence requiring neutrality among sentencing purposes selected by the states. Rightly read, the case elevates “negative retributivism” to a place of primary importance in constitutional criminal law. Thus, judicial consistency with Panetti necessitates substantial revision to the treatment of claims of actual innocence, to the warehousing of mentally ill persons in prisons, and to judicial assessments of sentencing proportionality. Second, Panetti’s reasoning quietly erodes the rationale for the continued use of the death penalty in the United States. In short, once properly construed, Panetti, a seemingly sleepy case about a doctrinally narrow issue, changes everything.

Human "dignity" and relationships

My fellow "Mirror of Justice" blogger, and legal-ethics scholar, Rob Vischer, had an interesting post the other day about David Luban's new-ish book, Legal Ethics and Human Dignity.  In particular, Rob focused on this passage:

"I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans -- between, so to speak, the dignifier and the dignified.  To put it another way, 'human dignity' designates a way of being human, not a property of being human."

Rob continued:

This reminded me of the following passage from Gaudium et spes:

"God did not create man as a solitary, for from the beginning 'male and female he created them.'  Their companionship produces the primary form of interpersonal communion.  For by his innermost nature man is a social being, and unless he relates himself to others he can neither live nor develop his potential."

For my own part, I was reminded by David's thoughts of two things:  Steven Pinker's recent essay, "The Stupidity of Dignity" and the concluding chapters of Nicholas Wolterstorff's latest book, "Justice:  Rights and Wrongs".

There's been plenty of commentary in the blogosphere about the Pinker essay, so I'll put that aside.  But Luban's focus on "relationships between humans" as the location (not the best word, I admit) for "human dignity" seems to connect interestingly with Wolterstorff's elaboration of his account of "human dignity adequate for grounding human rights".  (In his view, such an account is necessary and only a theistic account is possible.)  For Wolterstorff, the key is "bestowed worth" (think of "The Velveteen Rabbit"):  "What we need, for a theistic grounding of human rights", he writes," is some worth-imparting relation of human beings to God that does not in any way involve a reference to human capacities.  I will argue that being loved by God is such a relation; being loved by God gives a human being great worth."

Now, this is (obviously) not Luban's argument.  But is it like Luban's argument, in a way that might be instructive?  Any thoughts?

"Legal epistemology is ninety per cent quantitative. The other half is qualitative."

The last month I've been developing a bit of an SSRN-induced brain crush on epistemologist Larry Laudan, who I've not met before, but whose recent work (all posted on SSRN) ought to be pressing the criminal justice commentariat to re-think a lot of our assumptions when we talk about trial errors and risk-risk trade-offs between Type I errors and Type II errors.  Laudan's work seems to be mining the rich vein of material earlier espied by UVA's Darryl Brown in his important work on cost-benefit analysis in criminal law, a field that also incorporates the Sunstein-Vermeule death penalty paper.  Here's a very short introduction to Laudan's intellectual agenda that he just put up entitled "The elementary epistemic arithmetic of criminal justice." And here's a link to "Deadly Dilemmas," a sharp short essay he wrote with Ron Allen from Northwestern that was part of a symposium.

Laudan's concern is to show us what we're doing when we consider risk-risk tradeoffs. As he writes, "The recent spate of exoneration studies puts us in a position to say that the lifetime risk of being falsely convicted of a serious crime is less than one-tenth of one percent. By contrast, data from the BJS suggest that the lifetime risk of being a victim of a serious crime is about 83%. In short, the average American is at least 90,000% more likely to be seriously victimized than falsely convicted of a serious crime. (I should add that, because I have interpreted the figures very unfavorably with respect to my own hypothesis, the more likely ratio of these risks is about 8,000:1, in which case one is 800,000% more likely to be a crime victim than the victim of a false conviction.)"  His major point so far as I can tell is to carefully demonstrate how the risk of being a victim of a serious crime by a criminal who's been  falsely acquitted is far greater than the risk of being falsely accused convicted of a serious crime, and that the current "innocentristic" approach to death penalty reform and other criminal justice issues may be obscuring the normative importance of that fact.

Having read only a few papers by Laudan, my sense is  that there are two areas that need amplification.

First, Laudan's number-crunching doesn't seem especially sensitive to the distributive patterns of these competing risks. In light of the prevalence of intra-racial crime, I can imagine that there's some story that might justify this silence. After all, if it turns out that the average young black male of the inner-city faces far greater likelihood of being victimized of a serious crime than being falsely accused of a serious crime, he might have good reason to see various criminal procedure and evidence rules shift in the direction Laudan proposes. On the other hand, if that story is not true, and in fact it's the old white woman who faces much greater likelihood of being victimized instead of being falsely accused, but the numbers don't look as powerful for the young black male, I can imagine that something more needs to be said before we all embrace the direction of Laudan's prescriptions.

The other thing that Laudan's papers, at least the ones I read, seem to occlude is the nature of the risk associated with the kind of crimes one may be victimized by. To my mind, the analysis Laudan is providing is not quite sufficiently granular.  For example, Laudan argues that we can derive using some public stats,  a "plausible measure of the gravity of a false aquittal." Using his calculations, he notes that "for any given false acquittal for a serious crime, we can anticipate >4 violent crimes that would have been prevented [during the time the offender would otherwise have been incarcerated] had the legal system not decided to let the guilty felon out of its clutches, either by explicit acquittal or by a dropping or dismissal of charges against him. Of those four serious crimes, 0.1 will be a homicide, 0.2 will be rapes and 3.7 will be armed robbery or aggravated assault."  Laudan seemingly lumps these crimes together to create a "serious crime" category, which should be compared to the risk of being falsely convicted of one of these serious crimes.

The problem is that I can imagine many people who would sooner suffer a aggravated assault or armed robbery  than be  falsely convicted of those particular "serious" crimes.  Not because  those crimes are easy to bear generally, but because the losses from those crimes may be insured and because the experience of those crimes is, from a victim's perspective, likely to be short. One can go about one's life afterward, in many cases, relatively normally.  By contrast, a false conviction for assault or armed robbery will, depending on the sentence, probably be much more lasting in terms of duration, stigma or other hardships for the falsely convicted defendant. Looking at rape and murder, many would view being victimized of those crimes as devastating, even if not identical. Additionally, being falsely convicted of rape or murder would also be incredibly difficult to bear, though probably less difficult.  So my sense is that the conclusions Laudan draws would be more powerful if we could isolate the nature of the risks being compared in a more particularistic way.   What Laudan's CBA should look at is the relevant risks associated with each of those crimes if we are to be persuaded that the risks we are trading off are remotely commensurable and that we need to contemplate more procedural rule changes.

**Btw, the title for the post comes from Laudan via Yogi Berra.

On Subjectivity, Tax, and other Icky Things

This post started as a comment on Sarah Lawsky's post over at Concurring Opinions, but then it got too long, so now it's here.  A brief recap: Sarah thinks it's interesting that no one really likes oatmeal raisin cookies.  Also, she's written a cool paper about what it means when tax lawyers make statements of probability, such as the statement they must make (under IRS regs.) when providing tax advice that it is, say, more probable than not that a transaction will get favorable tax treatment.   Ok, here's what my comment said:

Hi, Sarah.  First of all, no one loves oatmeal raisin cookies because raisins look like bugs.  Ew. 

I've been thinking about your paper for a while, which for me is the sign of a really outstanding piece of writing.  I'm now fairly (say, 80%...) convinced that you're right in your claim that predicting tax outcomes involves uncertainty, not risk.  (And I went back and re-read Luce and Raifa, just to be sure.)  And your prescriptions based on that seem pretty reasonable.

What I'm wondering now is if the whole project of tying ethical or penalty-free lawyering to statements of probability is misguided.  And this could apply equally to tax penalties or Rule 11 more generally. 

The probability approach suggests that nose-counting can be a sufficient way to meet a standard based on likelihood of success (like the accuracy-related penalties or Rule 11).  That is, a proper method for a tax lawyer to go about her job could be to do a decisional study of every federal appeals judge, then calculate the odds of drawing an appellate panel with a particular group of judges, and so on.  If there are judges with truly outrageous views, and there is a non-trivial chance of drawing a voting majority of them on one's case, then no Rule 11.   

But what if society, or the lawyer herself, recognizes that the position with a non-trivial chance of winning is actually outrageously wrong and unreasonable?  Maybe the outlier judges are all 115 years old, and the equivalent of the mortifying old uncle of the federal bench. 

I think what rules like the accuracy-related penalties and Rule 11 are asking of lawyers is good-faith engagement in contemporarily-accepted, objective, legal analysis.  That is, it asks them to determine not is, but ought.  There's a strong analogy here to Mike Dorf's early work on injunctions and the "probability of success" standard -- probably worth a read.   

Anyway, my view is that the IRS's choice to describe the obligations of lawyers practicing before it in terms of probability is unfortunate and reductive, because it leads to the sort of pure positivism that I mention, and the theoretical black holes that you describe so well.  For instance, one step in that direction, as  I've mentioned, is to chuck the probabilistic regime altogether, and replace it with a standard that prohibits all tax-motivated planning not expressly authorized by Congress.      

More against the Judge-Umpire Analogy

Some recent discussion of the analogies between judges and umpires (or other sports officials) over the past few days at the Volokh Conspiracy (here, here, here, and here) and Erike Lilliquist at CoOp (here). Ilya Somin calls the analogy "a good shorthand way of emphasizing the judge's duty to set aside his policy preferences and be impartial between litigants."

I continue to believe that the analogy is worthless. First, Ilya defends it as shorthand for decisional neutrality and impartiality, responding to a particular use of the analogy by Fifth Circuit Judge Jerry E. Smith (Ilya's former judge) to explain why judges should not call balls and strikes based on which team is his favorite. But while true, we do not need the analogy for that--it seems obvious that no decisionmaker should reach conclusions based on the identity of the parties rather than the applicable rules.

Second, my disagreement with the metaphor is not that umpiring is simple and obvious while judging is complex and demands interpretation. As Ilya and Erik (in an very detailed post) both point out, there are all sorts of ways in which sports officials exercise a lot of discretion. This is especially true of choices between enforcing rules as written or in a more practical manner grounded in the game's realities and evolution and in applicable "unwritten" (Common Law?) rules that have become part of the rule set (Erik uses examples of the "neighborhood rule" on tag plays and double plays in baseball). So the analogy really becomes "a judge is like an umpire/referee because both must make difficult decisions, often requiring the exercise of discretion and the accumulation of different legal authorities, and must develop an interpretive methodology for doing so." But if that is it, then the analogy again does no work. Why are sports officials particularly illustrative of this principle, as opposed to any other decision maker? I could say the same thing about my decision whether to give my daughter a time-out.

Ultimately, the analogy (at least as used by Chief Justice Roberts in his confirmation hearings, the most recent and well-known use) is based on a (deliberate, I think) oversimplication of umpiring--the notion that an umpire "simply" calls balls and strikes and it is obvious which is which--and an effort to make judging look similarly simple and straightforward. Thus, the analogy is worthless precisely because judging and umpiring are both complex, interpretive endeavors. The analogy is accurate but it serves no meaningful illustrative or rhetorical function.

Socrates and Obediance to the Law

As Brian Tamanaha recently noted, it sometimes seems as if Plato anticipated most of the major issues in the philosophy of law.  One of these issues is the question of when, if ever, it is appropriate to disobey the law.  This issue is presented squarely in the Crito, where Socrates and Crito debate whether Socrates should flee into exile or should accept the jury’s sentence of death.  Crito has easily bribed his way into Socrates’ jail cell, observing to Socrates that he has done the warden “a good turn” (43a8).  The strong implication of the discussion in the Crito is that it would have been equally easy to bribe the warden to let Socrates escape to go into exile.  But Socrates ultimately refuses to go into exile, and accepts the death sentence.

Socrates’ argument in the Crito presents two related problems.  First, speaking through the personified Laws of Athens, Socrates appears to take the autocratic position that it is always unjust to disobey the command of the law.  This is problematic because it appears to remove all other moral considerations from the issue of obedience to the law.  Second, Socrates’ position in the Crito appears to be contrary to some of the positions that Socrates takes in the Apology.  In the Crito, Socrates argues that he must obey the death sentence imposed by the jury, but in the Apology he suggests that he will not obey a command from the jury to stop engaging in philosophy. 

These problems are well established in the literature on the Crito.  The typical way out of both is to argue that Socrates was being hyperbolic in the Crito, and that he would have disobeyed a law that required him to not engage in philosophy because obedience would have been inconsistent with Socrates’ commitment to his personal god.  In this post, I want to develop a different argument as to why Socrates blanket statements about obedience to the law should not be taken at face value.  I will suggest that there is another scenario where Socrates might also disobey the law:  when obedience would be contrary to obligations owed to family and children.

This argument is counterintuitive, because Socrates appears to strongly reject the relevance of obligations to his children to the issue of whether he should accept his sentence or flee.  Crito initially suggests to Socrates that he should flee in part because of his obligations to his sons:

What’s more I think you’re also betraying those sons of yours by going away and deserting them when you could bring them up and educate them.  So far as you’re concerned, they must take their chances in life; and the chance they’ll get, in all likelihood, is just the one that orphans usually get when they lose their parents.  No.  Either one shouldn’t have children at all, or one ought to see their upbringing and education to the end.

(45c-d).  In response, Socrates powerfully dismisses the relevance of concerns about his children:

As for those other considerations you raise about loss of money and people’s opinions and bringing up children – they, in truth, Crito, are appropriate considerations for people who readily put one to death and would as readily bring one back to life again if they could, without thinking; I mean the majority of people.

(48c).  As a result, it is easy to take Socrates at his word and come to the conclusion that he “clearly supposes that considerations about prestige or children are not relevant to the consideration of whether or not it is just for him to escape.” (Harte, Verity (2005), “Conflicting Values in Plato’s Crito”, in Plato’s Euthyphro, Apology, and Crito:  Critical Essays, Rachana Kamtekar, ed., 229-59, at p. 238.).

Socrates’ dismissive comments, however, are not the last word on this issue.  Towards the end of the dialogue, speaking as the Laws of Athens, Socrates returns to the impact that his decision to accept the sentence or flee will have on his children:

“Is it that you want to live for your children’s sake, then, to bring them up and educate them by taking them to Thessaly and making foreigners of them, so they can enjoy that privilege too?  If not, will they be better brought up and educated here without you, provided that you’re still alive?  ‘Of course,’ you may say, because your friends will take care of them.  Then will they take care of them if you go to Thessaly, but not take care of them if you go to Hades?  If those who call themselves your friends are worth anything at all, you surely can’t believe that.”

(54a).  In this passage, the Laws of Athens make the case that it is best for Socrates’ children if Socrates accepts his sentence of death.  If Socrates takes his children into exile, then they would become foreigners, which the Laws clearly see as an undesirable fate.  If Socrates leaves his children in Athens, then they will be raised by his able friends, including Crito, whether or not Socrates flees into exile or stays and is executed.

Immediately after this passage, the Laws go on to tell Socrates not to be concerned about his children, and to focus on what is just.  This admonition by the Laws, however, begs the question of what is the just course of conduct for Socrates to take.  In this particular instance, there was no conflict between Socrates’ obligations to his children and his obligations to the laws.  Socrates was devoted to Athens, and for his children life as a citizen in Athens would be preferable life as a foreigner in another city.  Socrates was also an old man.  It is not necessary to give full credit to Xenophon’s assertion that Socrates provoked the jury into sentencing him to death to avoid the pains of old age (Socrates’ Defense to the Jury, 6-7) to recognize that his time to be with his children would likely be limited.  Accepting his sentence therefore was plausibly the best outcome for his children.

What if it the factual scenario had been different?  Imagine that when he was convicted, Socrates was in his early 20s, and that another nearby city was nearly as attractive a society as Athens and offered citizenship to Socrates and his children.  In these circumstances, a serious conflict would arise between Socrates’ obligations to his children and his obligations to obey the laws.

Would Socrates, confronted with these circumstances, say that it was just to remain in Athens and accept his sentence of death?  It is impossible to say for certain, but if considerations about Socrates’ obligations to his children were truly irrelevant to the issue of justice, then there would have been no need for Socrates to return to the issue at the end of the Crito.  His contemptuous dismissal earlier in the dialogue would have been sufficient to address the issue.  Socrates did return to the issue, and established that there was no conflict between his obligations to his children and to the laws.

If Socrates’ broad language in the Crito is seen as being hyperbolic in his assertion that disobedience to the law is always unjust, then his language dismissing the relevance of his obligations to his children can also be seen as hyperbolic.  In this reading of the Crito, Socrates’ broad language is addressed to the correct course of conduct for Socrates in his particular circumstances, rather than the issue of just conduct more generally.  Because there was no conflict between Socrates’ obligations to the laws, the god, and his children, it was just for Socrates to obey the law and accept his sentence.  If circumstances had changed, however, the outcome may have been different, and it may have been just for Socrates to disobey the laws.

Translations from C.D.C. Reeve, The Trials of Socrates

Ben Barros

John McCain and Natural Born Citizenship

So it turns out John McCain was not a citizen at birth, and therefore is not a natural born citizen.  My analysis is in this essay, reported on by Adam Liptak in The New York Times.  The essay responds to the 0pinion of Professor Laurence Tribe and former Solicitor General Theodore Olson that Senator McCain was a natural born citizen, both 1) by statute, and 2) by birth under the allegiance and loyalty of the United States.   The second argument seems to have been an oversight of some kind.   People whose sole claim to citizenship is birth in the Canal Zone are regularly deported from the United States, so this argument is not consistent with existing law.  It was apparently not pressed when they spoke with Adam Liptak.

People born to U.S. citizens in the Canal Zone in 1936, as was Senator McCain, were not covered by Revised Statutes S. 1993, the only statute granting citizenship to persons born out of the territorial United States then in effect.  By its text S. 1993 applied only out of the "limits and jurisdiction" of the United States.  The Zone was out of the "limits" but in the "jurisdiction" of the United States.

In 1937, Congress passed a specific statute granting citizenship to those born in the Canal Zone since 1904 to U.S. citizen parents.  The New York Times article states: "The 1937 law, Mr. Olson said, was not a fix but a way to clarify what Congress had meant all along."  The legislative history does not support the view that the 1937 Act was a clarification of S. 1993.   Instead, House Report 75-1303 from the House Committee on Immigration and Naturalization explains that the law was necessary because under S. 1993, "[e]ven children born within the limits of the Zone which is under the jurisdiction of the United States are not citizens.  .  .  .  Children of American parents in the Canal Zone are not outside the jurisdiction of the United States, nor are they within the limits of the United States."

However, the Committee wanted to grant this class citizenship; as most were children of U.S. workers "they are citizens in every sense except as a matter of law."  (This was a crib from Secretary of Labor Frances Perkins).  As Rep. John Sparkman explained on the House  floor, "The Canal Zone is a 'no man's land.' Every place in the world except the Canal Zone has been covered by either the law of 1855 [S. 1993] , which applies to foreign countries, or by the fourteenth amendment."  81 Cong. Rec. 7769 (1937).  In the Senate, Senator Clark said that under the bill's terms, "existing law is changed."  The 1937 Canal Zone act was not confirmatory.

Professor Tribe was quoted as saying that "Reading the 'limits and jurisdiction' clause as Professor Chin does, Professor Tribe said, 'is to attribute a crazy design to Congress' that 'would create an irrational gap.'”  But this language in S. 1993 was unchanged from the original version of 1855,  before there was a Canal Zone or any other large overseas territory not incorporated into the United States.  Just as it would be plausible that an 1855 transportation statute might not cover Segways, it is not crazy or irrational that an 1855 citizenship statute failed to account for overseas land holdings that not only did not yet exist, but were not even imagined.   In addition, as the American Bar Association Journal reported in 1934, "Probably no branch of the law in this country is more open to criticism on the grounds of instability, inconsistency and irrationality than that governing nationality, or citizenship." 20 ABA J 780, 780.  Bad drafting was Congress's specialty.   

Professor Tribe and Mr. Olson, like many others, contend that "the Framers did not intend to exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States," so they must be natural born citizens.  But this idea is, again, not consistent with the actual actions of Congress.  The 1790 citizenship statute made overseas-born children of citizen fathers "natural born citizens."  The 1795 statute repealed the 1790 statute and made them "citizens", for some reason removing the natural born designation.  The 1802 statute repealed the 1795 statute and made them aliens.   As Montana v. Kennedy, 366 U.S. 308, 311 (1961), explains, under the 1802 law passed by the 7th Congress, which included several Framers,  "Foreign-born children of persons who became American citizens between April 14, 1802 and 1854, were aliens."  For the offspring of female U.S. citizens (including, e.g., U.S. Army and Navy nurses serving overseas in WW I) who had children with aliens, the no-citizenship policy remained in effect until 1934.  It is not merely that Congress did not want such children to be eligible to the presidency, Congress determined that they would not be citizens at all, not even if a parent was in the military or other government service.  The 1937 House vote to  grant citizenship to children of U.S. citizens in the Canal Zone was 146 aye-144 nay--the bill came within one vote of failing because of a tie.  That is, almost half of the House voted to leave John McCain and other children of U.S. citizens born in the Canal Zone without citizenship (knowing they could make individual application under the general naturalization laws).   These harsh provisions are inconsistent with what we might imagine a just Congress should have done, but in fairness to Congress, much of this legislation is entirely consistent with the suspicion of foreigners embodied in the natural born citizen clause.

Of course, it is silly that John McCain is caught up by bizarre technicalities of immigration policies afflicted with racial and religious biases; as I explain in the essay, fear of granting citizenship to "half-breeds" and "negroes" in the Canal Zone apparently delayed legislation that would have made him a citizen at birth.   The natural born citizen clause should be repealed, and people who become citizen after birth should be eligible to the presidency.  But the natural born citizen clause remains part of the Constitution that we have, and Senator McCain does not satisfy it.  I reject the idea that provisions of the Constitution can be ignored if one concludes that 1) they no longer make sense and 2) one can get away with violating them.

Umpires, Judges, and Interpretation

Like many commentators, I thought John Roberts' suggestion at his 2005 Senate confirmation hearing that judges are simply baseball umpires--calling balls and strikes and not making any value or policy judgments and exercising no discretion-was, at best, fatuous. It was, at worst, demeaning to judges and judging, which is a far more difficult task, demanding interpretation, discretion, and value judgment, than Roberts would acknowledge. And, it turns out, Roberts' comments may have been demeaning to umpires, who must do a lot more than simply call balls and strikes. Consider the following examples.

In June, in a Class-A minor league game, a switch-hitter faced an ambidextrous pitcher. When the batter stepped in to hit right-handed, the pitcher set up to pitch right-handed. The batter then switched to bat lefty, so the pitcher changed hands again. The batter switched one more time and so did the pitcher (watch the video--the fun starts at about the 2-minute mark). Finally, the umpires gathered to figure something out.There are rules in place for switch hitters and when they can switch sides during a single at-bat, usually in response to a pitching change. And there are rules for changing pitchers during an at-bat. But nothing that specifically covered one pitcher able to change hands multiple times. The umpires conferred and decided that both batter and pitcher were allowed one switch per at-bat after the first pitch, but that the hitter had to declare a side first.

To resolve this, the umpires had to do what we think of as judging. They applied a set of generally applicable rules to a unique, probably-unthought-of factual scenario. They necessarily made a value/policy judgment in giving the pitcher an advantage by making the batter declare a side first--which goes against the de facto usual situation of the pitcher declaring first (because typically everyone knows which hand he throws with). Why make hitter-first the default rule--some value or policy judgment must have been in play. By the way, the Professional Baseball Umpire Corporation last week announced specific rules for the situation, allowing one change for each side per at-bat, but requiring the pitcher to make the first move.

This past weekend at Yankee Stadium, a batter hit a long drive that the left-fielder had in his glove momentarily, then lost when he crashed into the fence; the ball popped in the air and landed on top of the fence, where it bounced a few times and came to rest (remember the putt at the end of Caddyshack?), before finally falling back onto the field, by which time the batter was standing on third.

Calvin Massey wonders what would have happened if the ball had remained atop the wall. The ball did not go "into the stands" or "over the fence," although it was not on the playing field. The ball sort of left the playing field, at least for the time it was atop the fence. Had it gotten there "on the fly," when it hit the fielder's glove first? Massey wonders how a Justice Thomas or Scalia would view the situation, given their interpretive approaches. But the important broader point is that we recognize the need for interpretation of text, intent, and context is indeed required even in baseball. The rules clearly account for what happens a) when ball goes over the wall (home run), b) where a ball hits the wall and comes back into play (no home run), and c) where the ball goes under or through the wall (ground-rule double). The rules do not mention a ball stopping atop the wall. Figuring out that situation requires the umpire to engage in an act of judging--what is this situation most like and how does it match the words of the rules? By the way, the umps said it remained a live ball and the batter had a triple. And I think that would have been the correct call even if the ball had remained atop the wall.

There is nothing rote or automatic about what umpires do. Nor is there anything rote or automatic about what judges do. And we do a public and political disservice when we pretend otherwise, especially when used as a dodge to avoid questions about the jurisprudential theory of a Supreme Court nominee.

Vining on Law and Religious Commitment

Apropos of Rick Hills' post on "theophobia" and the myriad comments that follows, Joseph Vining (Michigan) has posted Legal Commitments and Religious Commitments, a comment on Steven D. Smith's Law's Quandary (HT Larry Solum).  Here's the abstract:

Person, individual, purpose, value, authority: Can these be realities for law without making a commitment to law into a religious commitment? Can the affinities between the world of law and the world of religious life be as close as they are without leading one to conclude, empirically or introspectively, that these dimensions of experience are the same? In a comment on Steven Smith's Law's Quandary, this essay suggests law has an ontology of its own. As Smith argues, the language of everyday life does not fully reach what is real for law, and law's ontology is clearly not limited to the ontology of science and mathematics. But we can think law need not live in an "ontological gap" unless absorbed into religious life. What is real for law is connected to what is real in religious life, but a commitment to law and a religious commitment are not the same. As dimensions of human experience, law and religious life may be not separate but nonetheless not the same.

I've only skimmed this, but it addresses, it seems to me, the legitimate point of discussion somewhere in between the die-hard religionists and the die-hard atheists not only about the ontology of the law, but its apparent teleology.  That is, in Law's Quandary, Steven Smith ponders why, when we are all acknowledged legal realists, do we still speak a language of the law that implies there is some author?  The implication of Smith's final chapter is that the author really is the Author (God) - indeed, Justice Scalia (not surprisingly) wrote a review in First Things suggesting Professor Smith not beat around the bush.  Professor Vining, on the other hand, is looking for a way of explaining this sense of meaning or purpose without having to concede one needs to have a religious discussion in which to do it. 

Some commenters styled this kind of inquiry "thin" religion, a characterization that bothered me.  My wife and I were once considering changing synagogues (ours was in the midst of significant administrative turmoil).   We talked to the Reform rabbi of the temple we were considering leaving and to the Conservative rabbi (a former president of the world Conservative movement) who had married us.  To the latter I had expressed some concern about the movement's positions to which I objected.  Both acknowledged the far more difficult task of what the commenters call "thin" religion - if you are not orthodox or fundamentalist or a professional philosopher, religious institutions are where you engage with issues of meaning, purpose, good, and evil.  The Conservative rabbi went further to suggest that all differences among non-Orthodox Jews boiled down to whether you were what he called a "searcher" or not.

I'm not sure where in the continuum from Vining to Smith to thin religion to thick religion you draw the line and say we not searching any more.  I do think there's collateral damage to that entirely legitimate intellectual discussion from the theist-atheist wars Rick's post brought out.

Linguistic Communities, Intellectuals and Dilbert

Several weeks later, I am still pondering the "anti-intellectualism" debate Rick Hills stirred up, and some of the comments to my post on the subject.  What got me going this morning was reading the introduction to Stephen Finlay's Four Faces of Moral Realism, which Larry Solum was kind enough to spotlight today.  This is by no means a criticism of that article, which is a helpful summary, but a reflection of my own internal translation of the jargon (are moral principles real or unreal, natural or non-natural, reducible or irreducible?) into conversational English.  It's also not a criticism of the jargon (which I think I do understand), but an observation on the "insider/outsider" nature of it.

I've been the member of several linguistic communities, and I'm pretty sure that the only reason intellectual jargon gets this kind of attention from intellectuals is that intellectuals are the ones who think about it by the very nature of being an intellectual.  When business jargon gets this kind of attention, it results in Dilbert.  (There is, of course, the occasional cross-over, like this parody of the Harvard Economics Department Recruitment video.  The funnier "outtake" version I see has been removed from YouTube.)

For example, when I moved from the law firm to an in-house job at AlliedSignal, I kept a log of business jargon and acronyms in my Franklin Planner as a kind of curiosity.  The fact is, you almost couldn't understand what was going on without something like it, even though there was very little in the business that was otherwise not reducible to common parlance.  Some areas were more difficult than others.  To this day, I cannot deal with any discussion of derivative investments (hedges, options, puts, calls, straddles, swaps, swaptions, etc.) without slowly and methodically translating it back into plain English.  I've long since lost the Franklin Planner, and the list is gone, but here are a few:

The Deck:  (n) the stack of PowerPoint slides sitting in front of everybody at the meeting.

STRAP: (n) the Strategic Plan.  This was all-consuming for most executives of the company from about April through the end of July, culminating in a Deck that was about three inches thick, and which was the subject of week-long turgid meetings in which the managers of individual businesses explained EVERYTHING they knew about anything, usually in the hope that senior management would leave them alone.

Roll-out:  (n) the process by which a new initiative is introduced to the organization.  Initiatives rolled out by functional departments were generally despised by line management, once they cascaded down.  "The roll-out of the required STRAP financial templates will take place on April 5, 1998."

Cascade down:  (v) with respect to information, to flow from the higher to the lower rungs of the organization.  Generally, it is the opposite of bubble up.  This might, for example, include annual OP goals (i.e. the operating income necessary to create earnings to support a trailing P/E that would be attractive enough to cause the sell-side analysts to issue strong buy recommendations.   The information in a roll-out might also cascade down.

Bubble Up:  (v) with respect to information, to flow from the lower to higher rungs of the organization.  Generally, it is the opposite of cascade down.  After the annual OP goals set by senior management (also known as deliverables) cascaded down to the SBUs (strategic business units), and the SBUs realized they bore no resemblance to what they had said about the capabilities of their businesses in their STRAPs, questions or complaints might bubble up to senior management.  If sufficiently obnoxious, the comments might cause a manager to move from seasoned professional, or even hi-po (high potential) to manage-out in the next MRR (management resources review). 

Note the linguistic issues here.  Even Dilbert, who makes fun of this stuff, has to do it in plain English so that ordinary readers can understand it.  Indeed, is Dilbert to business what anti-intellectualism is to the academy?

Obscurity, the Golf Swing, and Wittgenstein's Poker - More Boring Commentary

I've been lurking with some interest behind Rick's post on obscure language and the extensive comments.  I have the power of the TypePad pen, so I'll offer up some thoughts, and try really hard not to be either obscure or boring.

I was thinking about one of the most popular unread books in recent history, Stephen Hawking's A Brief History of Time.  I know he was trying to explain quantum mechanics and string theory and the like to ordinary people, but I still got no more than the briefest glimpse even into what he was saying there.  Do you really understand the idea of "spin" in atomic sub-particles?  My scientist son just told me he understands it but can't explain it to me in ordinary language - he says it's a quantum property and "spin" is as close as you are going to get.  Knowing that it has something to do with angular momentum of the electron isn't helping me either.  On the other hand, I suspect neither most people nor I ever have to confront this in their daily lives, any more than they have to confront whether there is an objective reality, much less how Kant managed to derive it in the transcendental deduction.

But people do think about right and wrong.  And bear with me for a moment with a golf analogy.  There are thousands of words written on how to hit a golf ball.  Maybe even more words than have been written about right and wrong.  The funny thing is that the ONLY thing that really matters in a golf swing is having the club face square (i.e. perpendicular to the intended line of flight) when it strikes the ball.  How hard you hit it may affect how far it goes, but hitting it square means it will go straight, and without hook or slice spin.  All of the thousands of words, all the different techniques, in golf swing instruction circle back to finding a way to have the student, no matter how awful the swing, hit it square.

That and Wittgenstein's dictum "whereof one cannot speak, thereof one must be silent" are what struck me when I read commenter Matthew Cole's statement:  "What you'll find uniting basically all of the loose paradigm of "postmodernists" in political philosophy is that they argue that the normative claims about politics circulated by modernists are somehow contingent on a claim to absolute knowledge, when really all we have is contingent knowledge."  More on (moron?) this after the jump.

The dictum comes from the end of the Tractatus, early Wittgenstein, and is a statement of positivism.  Worrying about whether we have contingent or absolute knowledge is pointless, because there is no language in which to express what, for example, what a Kabbalahist means when she refers to God as "Ein Sof" (there is no end, something that actually means something to me, but it's shorthand for something else about which I cannot speak but which nevertheless seems true).  The famous "poker" exchange came much later, and it was provoked by a disagreement between Wittgenstein and Popper whether one could state any absolute moral imperatives.  (Popper response was yes, don't threaten visiting speakers with fireplace pokers.)

Despite Wittgenstein, we are not silent about what cannot be spoken.  Indeed, we are not silent about whether there are things about which we cannot speak.  No doubt Wittgenstein's frustration was the endless repetition of the same unresolvable issue.  Like a philosophical golf swing, the issue keeps coming back around to one thing:  can we know things, and particular what we ought to do, absolutely or not?  Everything else springs from that.  If absolutely, then how do we deal with reasonable disagreement?  If not, how can there be any standard at all?  (As in golf, the Wittgenstein answer is practice, practice, practice.)

Now unlike confronting sub-atomic particles, or even the objective reality of the physical universe, people, and not just philosophers, make moral choices every day, and even think about the process of making moral choices.  Most people either just swing the moral golf club and hope that the face will be square, or adopt one or two fundamentals (philosophical golf pros call those "swing heuristics").  Few people deal with, or want to deal with, the theory of the golf swing.  It's only fairly recently that religion dropped out of the intellectual tool box, and no golf pro worth his or her salt merely says "have faith in your swing."  Among the pros, there's a lexicon.  The lexicon is only a problem if you think knowing the lexicon has something to do with either with keeping the club face square in golf, or knowing the right thing to do in life. 

So I'm perfectly willing to concede superior knowledge to any physicist when it comes to understanding muons and quarks.  But I'm not willing to concede to Kant, Hume, Aristotle, Heidegger, Lacan, Derrida, Leiter, Buber, Rick Hills, Brian Leiter, or Dan Markel (well, maybe Dan) any greater insight than me into absolute or contingent knowledge or right and wrong.  Only the lexicon. 

Is and Ought's Excellent Adventure (Part 3): How Many Superdelegates Does It Take to Screw in a Lightbulb?

As my last entry in this series, I want to address the Hilary Putnam point Rick Hills has raised, and then, finally, I will move on to subjects that really matter, like Angelina Jolie's babies or the Red Wings' victory in the Stanley Cup Finals.  (The question is whether the Hume dictum on is and ought has since been called into question.)

This is really an issue of the philosophy of science, something I'm told is far more interesting to philosophers than scientists.   James Watson spoke to the issue briefly:  "In England,if not everywhere, most botanists and zoologists were a muddled lot.  Not even the possession of University Chairs gave many the assurance to do clean science; some actually wasted their efforts on useless polemics about the origin of life or how we know that a scientific fact is really correct."  The Double Helix, at 53 (my emphasis).

What I'm about to write may therefore be doubly a waste of time:  (a) it's about the issue Watson derides; and (b) I haven't read Putnam, but I've read an interpretation of Putnam on this issue.  But this is a blog post, so what the hell?  If I'm wrong, somebody will call me an ignorant cretin in the comments, and Dan Markel will have to step in to rescue me.

One of the great mysteries, still, as Daniel Goldberg noted in a comment to Rick's post, is the source of the scientist's hypothesis (see Hempel, Popper, and others, like Mark Turner and Mark Johnson, who write on categories, analogies, and metaphors).  [All unrepentant Humeans should stop here.]  You have to be able to imagine, by way of your reason, a different explanation of the relationship between objects to hypothesize, and the hypothesis is valid if it comports with experience.  What Putnam said, as I understand it (and here I'm quoting a 1993 law review article by Stephen Ball), “the so-called ‘objective facts’ of science are infused with ‘cognitive values’ (e.g., theoretical simplicity, coherence, etc.) pertaining to practical human interests in scientific theorizing, and others refer similarly to ‘pragmatic’ or ‘epistemic’ values or ‘virtues’ connecting to the explanatory, predictive, or problem-solving, etc., functions of science.”  Or to put it another way, analytic knowledge, like "that is a billiard ball" may be objective, but science is infused with theory, theory is infused with something that might not be objective and may well be value laden, so let's not hop on the dichotomy too quickly. (Ball: “Putnam’s most recent formulation of scientific ‘realism’ denies not that there is a theory-independent reality, but only that there is one uniquely correct theoretical ‘description’ or ‘version’ of it.”)

Let's look at physical science. Take DNA, but we could talk about relativity, for example, as well. When James Watson met Francis Crick, nobody knew how the genetic code was transmitted.  Some scientists thought genes were protein molecules.  But a bacteriologist named O.T. Avery did an experiment taking pure DNA from one bacterium to another, and in doing so transferred hereditary traits.  So most scientists thought DNA was the answer, but they didn't know why or how.  Maurice Wilkins and Rosalind Franklin had x-ray pictures of DNA, but Franklin didn't think they supported a helical structure.  The point is that the double helix structure with sugar-phosphate backbones and A, T, C, and G bases in the middle is a theory (and one that is now time and experiment tested) about the relation of physical objects to each other.  As Watson noted, their work began with "the belief that the truth, once found, would be simple as well as pretty."  Not only do we have anecdotal evidence that cognitive values infuse the theorizing, but we have the same infinite regress or recursive loop we noted in prior posts:  even our meta-theorizing is subject to those cognitive values, so where does it end?

I defer to others who know Putnam's work, but it strikes me that his critique is more of objectivity in "is" than subjectivity in the "ought."   Ball's point is that moral relativists would like to use Putnam’s point about the infusion of cognitive “values” to suggest there is no objectivity in physical science; a fortiori, how could there be objectivity in moral philosophy?  That latter point, it seems to me, is a corruption of the original debate - Kant and Hume agreed on the fact of an objectively real world, and despite the unresolvable questions at the far reaches of quantum physics, I don't plan on driving my car into a brick wall at sixty miles an hour to show they were wrong.   So the rest of that argument is lost on me.

But if the "objectivity" of synthetic propositions in physical science is infused by human values, how much more is this the case when we are dealing with social science?  Put aside the question whether there is an objective moral or legal "ought." (Leiter has a whole book of essays about it).   Social science itself (so styled) is less than two centuries old, and still figuring out how to distinguish the descriptive from the normative. Law, in particular, as social science is less than fifty years old, and even more schizophrenic.  We debate not only what contract law ought to do, but what it in fact does!   Here we come back to the question I raised in Part I of the series:  how many superdelegates does it take to screw in a lightbulb?   No, seriously, folks, how many delegates does it take to nominate a Democratic presidential candidate?  The following is clearly not an "ought" statement, but it's also not an analytic truth:  "It takes 2,118 votes at the Democratic National Convention to win the party's nomination."  Indeed, this is a synthetic a posteriori proposition of fact, and even with Senator Clinton ready to endorse Senator Obama, I suspect there's somebody in the Clinton camp who'd like to contest it.

The real problem in "is" and "ought" for lawyers or social scientists is that it is indeed really hard to untangle normative propositions from ones that are descriptive and synthetic.  Lawyers are trained to present evidence designed to support hypotheses about a possible past or future state of the world.  Sometimes the distinction is pretty easy.  I'm not quite sure how either normative or cognitive values impacted the objectivity of the theory and experimental evidence of DNA, nor how they might impact the proposition "the light was red when the defendant went through the intersection."  As Larry Solum points out in his discussion of the fact-value distinction, it gets murkier as we proceed to propositions like "merging Staples with Office Depot violates Section 7 of the Clayton Act" or "the directors of Yahoo violated their fiduciary duties to the shareholders in not agreeing to the Microsoft offer at $33 per share."  And it's only interesting to philosophers when we get to questions like "is the standard of living in Iraq better now than it was in 2000?" or "is Jeff an ignorant cretin?"

The is-ought and fact-value distinctions still have traction, and are pretty clear at the extremes of physical science theory and moral choice.  Most of law and legal scholarship (and, indeed, social science) sits in the middle of debatable synthetic propositions so it's a lot tougher.  Except when we assert "Jeff is an ignorant cretin," on which all right-thinking people can agree as a matter of fact and value.

Is and Ought's Excellent Adventure (Part 2): Kent Greenfield on Mukasey's BC Speech

A couple weeks ago, Kent Greenfield (Boston College, left) asked me to link his Huffington Post op-ed on Attorney General Michael Mukasey's commencement address at Boston College this year.  At the risk of inviting another "train wreck" - Rick's posts are the gift that keeps giving - it turns out that the gist of Kent's observation merits being included as Part 2 in this series.

Here's Kent's comment:

[The Attorney General] urged our graduates to learn to filter out their own moral and political views when they "do law," so they can "advise clients that the law permits them to take actions that you may find imprudent, or even wrong."

So the message of the Attorney General of the United States to the law graduates of today: be a technocrat. Once the law is articulated, your job is done.

Mukasey does a disservice when he implies that the law is a simple, straightforward, technical enterprise. Of course there are easy legal questions (which include, by the way, that waterboarding is torture). But as our students learn in the first week of law school, the most important questions are unlikely to have answers that spring fully formed from some text. What good lawyering requires is not just a mining of a range of authorities to determine the best reading of various texts (though even this bare minimum was apparently not done in the authoring of the torture memo). Also necessary is an honest acknowledgment that when gaps are to be filled, there is no neutral way to fill them that avoids the need for political, philosophical, or moral justification.

Once again, "is" butts up against "ought."The interesting twist here is that not to decide is to decide.  By acting, in Kent's words, as a technocrat, one effectively concludes that whatever "is" is, it's the same as "ought.  What follows the jump is far less down-to-earth than before, and like Rick, I welcome anybody who wants to check it for philosophical malpractice.

Let's return to recitation of the Hume dictum for a minute.  Hume's concern was not only a reading of the "is" into the "ought," but the other way around:  suggesting something was an empirical fact when it was simply the speaker's reasoned derivation, rather than observation in experience, of what ought to be. 

As moral good and evil belong only to the actions of the mind, and are deriv'd from our situation with regard to external objects, the relations, from which these moral distinctions arise, must lie only betwixt internal actions, and external objects, and must not be applicable either to internal actions, compared among themselves, or to external objects, when placed in opposition to other external objects.

Indeed, in Hume's view, not only is there no reasoned moral connection between external events, "there is no connexion of cause and effect, such as this is suppos'd to be, which is discoverable otherwise than by experience, and of which we can pretend to have any security by the simple consideration of the objects."

Kant reacted to Hume by claiming there was a priori synthetic truth, like causation, beyond mere experience, and that reason was capable of deriving moral imperatives, and particularly categorical imperatives, that were universal.  Those are "ought," not "is" statements, and they are not assertions of truth or falsity about objects.  Hume, on the other hand, rejected the notion that reason could derive moral ends (remember, it's just slave to the passions).  So he was making the point that whatever the source of the "ought" might be (to him, custom, not reason), it certainly did not constitute empirical fact.

The problem with Hume leads, in my mind, to Mukasey's thesis.  Hume makes it clear saying "it ought to be so" doesn't make it so.  He leaves us, however, wandering on the source of the "ought."  So the question is whether enough information about the "is" will lead us to the "ought."  Mukasey's approach, for lawyers at least, is to punt.  Don't worry about the "ought;" tell your clients what the law is (if that's possible, to Kent's point), and let them make the decision.  Personally, I'd never hire a lawyer to advise business clients who took that approach, but that's another matter.

I'm an old veteran of the data-intuition wars within the corporation.  After years of command-and-control, the quality movement had the insight that many decisions were not based on data, but on corporate executives' intuition, much of which proved to be wrong.  So the pendulum swung mightily between the mid-1980s and the turn of the millennium from what we might call corporate rationalism (making decisions on logic and reason) to corporate empiricism (making decisions based on fact).  (Whether that "fact" is really fact - Hilary Putnam's critique of the fact/value distinction which Rick refers to in the most recent post - will be the subject of Part III.)   I can remember many meetings with the Six Sigma and "operational excellence" gurus, and my suggesting to them that collecting data was all goodness, but inevitably we would get to a point where the question what we ought to do would again require a leap from what we established as the inductive rule within the data to a choice of action.

My friend and co-blogger Bill Henderson and I had an interesting public (albeit buried) exchange on this point a few weeks ago.  Bill found a talk given by Charles Munger (founder of the Munger, Tolles law firm and Vice Chairman of Berkshire Hathaway) entitled "The Causes of Human Misjudgment."  The substance was a summary of behavioral economic insights (notably those of Kahneman and Tversky) into what we might call "cognitive error."  True to his open-mindedness and hunger to learn, Bill said that he was interested in applied behavioral economics as a means of "honing [his] own decisionmaking processes to eliminate bias and susceptibility to manipulation."

It's a noble end, but I sounded a word of  caution in thinking that the process of understanding the empirical fact of one's biases would lead to better decisions.  It is far easier to do an assessment of somebody else's tendencies than your own. The problem, of course, in assessing your own bias and behavioral tendencies is the infinitive regress as well as the self-recursiveness of the exercise. In short, you assess your own behavior, and decide you have the tendency, and correct it. But was your assessment affected by the tendency (or another one)? And was your assessment of the assessment so affected? And so on.

The empirical dream is to unite "is" and "ought" with a complete understanding of the "is."  Kant didn't think that was possible.  Your reason wants to follow the infinite regress to the infinite end, and to see the world objectively. It is unrestrained by the empirical world. So reason is capable of positing (or playing) God - that Being that can be both subjective and wholly objective at the same time.

In short, Mukasey's view is unsatisfying to those of us who care about the "ought" beyond the positive law, because it simply leaves out any job for the lawyer other than, as Kent says, the technical job of relating what the law is or might be.  But it's equally illusory to think that merely a better understanding of the law, or indeed, any set of empirical data of the law is going to overcome the objective-subjective divide, and tell us how to choose among alternative actions.  The inspiring thing about Bill's vision (in contradistinction to Mukasey's) lies in a slight corruption of Robert Louis Stevenson's dictum that it is better to travel hopefully than to arrive. In this regard, it is impossible to arrive on data alone, but it's no reason not to travel hopefully nevertheless.

Is and Ought's Excellent Adventure (Part 1): Ontological Confessions of a Wishy-Washy Lawyer

Several days ago, Rick Hills criticized legal scholars who use David Hume's famous "is-ought" quotation in the same way they might add a string cite for summary judgment standards in a brief.  I don't want to quarrel with that criticism, but the rest of his post implied that point of the is-ought distinction itself was somehow passe, or another Enlightenment relic, and put to rest by Hilary Putnam's critique (or, at least, eaten up in the legal academy once the analytic philosophy predators invade the eco-system).  I don't agree with that implication, and rather than bore everyone to tears with philosophical musings (I'll do that later), I offer some anecdotes and some practical advice on the matter of "is" and "ought" in the life of a real lawyer, using Hillary Clinton's "fight or concede" dilemma as an example.

I'll start with the confession.  I was a wimp as a corporate lawyer, at least in the sense that scorched earth tactics in any setting just weren't my cup of tea.  When I was practicing in a law firm in Detroit, there was a very smart fellow at one of the other big firms who made his reputation by being simply the most unpleasant litigator in town.  Even if conventional general counsel wisdom said that we would do better by hiring people like that to handle our litigation (once I was a buyer rather than a seller), I had a hard time with it.  I hated the tipping point where we had to decide to escalate.

This was all capsuled in one short exchange I had while I was interviewing for the job of vice president and general counsel of AlliedSignal's automotive division in 1993 (AlliedSignal is now Honeywell).  I had left a law firm partnership the year before to become an AlliedSignal "senior counsel" on the prospect that this other job would be opening up.  But there were no guarantees.  Because the new position was at the divisional C-level, the last hurdles were interviews with Larry Bossidy, the CEO and chairman, and Alan Belzer, the about-to-retire president, and a crusty old veteran of the chemical industry (the "Allied" in the name came from Allied Chemical, founded in 1924 by among others, Eugene Meyer, Katherine Graham's father, and for years the New Year's ball in Times Square was atop the Allied Chemical building.)  Talking with Bossidy was like talking to the wisest grandfather in the world (somehow I managed to mention God, Torah, and Israel, the three foundations of Judaism, and did it smoothly enough to get the job).  Belzer, on the other hand, I think, enjoyed yanking the chain of this obviously too-young-and-inexperienced candidate, and our conversation follows the jump.

Alan congratulated me on a short essay I had written about why I thought I should get the job.  Then:

ALAN:  Okay, I'm going to ask you a question you may not like very much.

JEFF (smiling charmingly):  That's fine, Alan, hit me with your best shot.

ALAN:  I don't want to hit you.

JEFF:  I don't mind a tough question.

ALAN:  Okay, but there are rules.  You cannot answer "it depends."

JEFF:  I can't answer "it depends"?

ALAN:  You can't answer "it depends."

JEFF:  Okay.

ALAN:  Alright.  Here's the question.

JEFF:  Okay.

ALAN:  Fight or settle?

JEFF:  Fight or settle?

ALAN:  Yes, fight or settle.

JEFF:  And I can't say it "it depends"?

ALAN:  No.

JEFF:  Then you settle.

ALAN (coming out of his chair):  BUT WHAT IF THEY ARE BASTARDS?

JEFF:  Then you fight.

I didn't realize at the time this was really a discussion about the "is" and the "ought."   We are faced all the time with considering what really is the case, what we think ought to be the case in the best of all possible worlds, and what we ought to do about it if they are not the same.  Think about Hillary Clinton's dilemma over the last few days.  Fight or settle?  What is true and what is right?  Some things really are a matter of simple analytic truth, and unquestionably objective.*  Obama has X elected delegates and X superdelegate commitments.  Some things are a matter of a possible but unrealized state of the world, and one that might even be the best of all possible worlds.  She says "I ought to be the nominee because I am more electable."  Finally, there is the question of action - what ought we do?   This doesn't involve the question of "is" at all, except to the extent that the gap between what is and what ought to be impels us to action.  The dilemma of the wishy-washy corporate lawyer is just like Hillary's dilemma - one principle of what ought to be demands that I fight to the bitter end to change the "is;" another principle says that the party (or the company) is better off if we compromise or concede.

How do you decide?  Hume kind of shrugged his philosophical shoulders, observing, however, that you would undoubtedly employ your reason to get you to the result that made you happiest.  Kant acknowledged that was a problem, but thought you could reason your way to the right thing to do by figuring out what duty would require everyone in that situation to do.

People have been debating the is-ought issue forever, and I'm skeptical anybody, even Hilary Putnam, has the silver bullet as a philosophical matter.  I also don't think there's a silver bullet (as I will discuss in the next post) that resolves the dilemma of data versus intuition.  What seems pretty clear to me is that we have to engage the questions as lawyers all the time, even if not in academic lingo, and even if we avoid the ontological musings. 

* Synthetic truths, like the number of delegates it takes to secure the nomination, or the structure of DNA, are another matter, and that is where Hilary Putnam's critique comes in.  More on that to follow in my upcoming post "How Many Superdelegates Does It Take to Screw In a Lightbulb?"

Tribal Communities, Corporate Boards, and Lawyers

I'm working on a case book revision (joining the incumbent author in a new edition), and dealing with a chapter I never taught is like class prep, so any excuse to procrastinate suffices for me.  Today's inspiration is Eduardo's post about lawyers (or the lack thereof) on desert islands or space stations.  I have never seen Lost or Survivor (this is not a claim of some kind of intellectual superiority; I'm big into all sorts of weird mind-numbing channel surfing, like Modern Marvels on The History Channel, almost anything on Turner Classic Movies, and watching the Versus Channel's coverage of the Tour de France).  Nevertheless, as the Law & Society Association meeting has just wound up, it's appropriate to theorize why doctors and not lawyers show up in space stations and desert islands.

As Ferdinand Tönnies, one of the founders of modern sociology (and the handsome guy on the right), suggested, this is an issue of Gemeinschaft (community) and Gesellschaft (organization).  Gemeinschaft is best exemplified by the tribe, a community bound together by ties of family, mutual regard, common neighborhood - in short, a pre-modern rural society.  I like the Wikipedia author's description of Gesellschaft:  "groups that are sustained by it being instrumental for their members' individual aims and goals. . . . Gesellschaft relationships arose in an urban and capitalist setting, characterized by individualism and impersonal monetary connections between people. Social ties were often instrumental and superficial, with self-interest and exploitation increasingly the norm." 

What a fine description of modern law and lawyers, and why you wouldn't want too many of them in your ashram!  Healers, on the other hand, have always been around.  (Bones McCoy after curing the big rock:  "Jim, I'm a healer.")  Now that I think about it, I also waste time by watching old movies over and over again:  Gandhi had an ashram and he was a lawyer, but I think this just proves the distinction between theoretical sociology and applied sociology.  We never completely achieve  either in the real world.

Think about all the institutions we create in which reside remnants of tribal-like communities with tribal-like behavior (to Rick Hills' point, I won't say anything about Geertz and Balinese cock-fighting because I've never read it, but I will nominate it for the Hegel Award):  law firms, corporate boards, faculties, Congress, the AALS.   This is why I've always been skeptical of the capability of more and better Gesellschaft-rules to govern behavior of people within institutions.  You can fully constitute the institution through rules (like the rules of chess or football or Survivor), but you can never fully regulate tribal behavior (see Sarbanes-Oxley and the corporate governance debate) that way.

Why I Like Theory

If it's June, this must be PrawfsBlawg.  Here I am again for the third summer in a row, gazing out at the lake, working on my work, and, this year, missing the LSA annual meeting for the first time since I took up law professoring.  Also, a year later I'm still trying to figure out if I really look like Owen Fiss.  On one hand, he is taller, far more accomplished, and makes more than I do, but he also has a comb-over thing going, I think.

I thoroughly enjoyed the Rick Hills-Brian Leiter debate.  If you aren't one of the seven people who read it over at Legal Profession Blog (a Member of the Law Professor Blogs Network), feel free to make your way over there to find my contribution (and praise of Paul Horwitz's post).  While you are over there, give some props to Mike Frisch, whose stories about lawyers behaving badly are now picked up regularly by the online versions of the ABA Journal and the Wall Street Journal.  And welcome our newest co-editor, Bill Henderson, perhaps the leading scholar currently working in empirical study of the legal profession.

Oh, why I like theory.  More to come on this over the next few weeks.  For now, take some insight from Brian Greene, the Columbia physics professor and popular science writer, in today's New York Times Sunday Opinion section.  His point is about the inspirational aspects of science, a teleological view if there ever was one, in which you can not only marvel at the spectacle of a sky full of stars but also "recognize that those stars are the result of exceedingly ordered conditions 13.7 billion years ago at the moment of the Big Bang."  Personally, I'm agnostic on the teleology but, if forced to take sides, I much prefer it to purposeless post-modernism. 

But there's a point here to be made about theory (even philosophy) and the law, and it goes something like this.  Greene isn't looking to have science inspire scientists; he's looking to have it inspire middle-school and high school students, thinking adults, and in one instance, as he describes, a lonely soldier in Iraq.  What's the problem?  Says Greene, "in teaching our students, we continually fail to activate rich opportunities for revealing the breathtaking vistas opened up by science, and instead focus on the need to gain competency with science's underlying technical details."   Even if you take the point of the methodological naturalists, are skeptical of the existence of non-natural or transcendental truths or imperatives (in law, morality, or otherwise), and believe that moral discussion needs to emulate the methods of the natural sciences, what's problematic in inspiring students of physics and biology is a fortiori problematic in inspiring law students.  Again, quoting Greene, "we rob science education of life when we focus solely on results and seek to train students to solve problems and recite facts without a commensurate emphasis on transporting them out beyond the stars."  Or to take slight issue with Rick Hills (more to come on this later), in the context of legal education, we ought not give up on coming to terms with the distinction between the "is" and the "ought."

Well, that's enough for today.  While you are contemplating the mysteries of the universe, you might also want to consider whether Larry Ribstein (left) is the nom de plume of the actor James Rebhorn (right), at least when Mr. Rebhorn is doing work in unincorporated business entities and not playing slimy defense lawyer, Charles Garnett, on Law & Order, or the wimpy Secretary of Defense who joined Judd Hirsch's minyan in Independence Day.

A taxonomy of slippery slope arguments

Eugene Volokh has recently objected to my post deriding the sorts of “slippery slope” arguments invoked in the “same-sex marriage” debate. His post inspired me to take another look at my two very favorite pieces on slippery slope arguments – Fred Schauer’s 1985 piece and Gene’s own much longer 2003 piece (both in Harvard). They are both terrific articles, and they inspire me to generate my own taxonomy of legitimate “slippery slope” arguments, to demonstrate (in order of importance) that (a) I can coin nifty alliterative phrases that will catch on in the blogosphere; (b) I’ve got no hard feelings against Brian Leiter whom I think is an eminently fair-minded, unnervingly prolific guy; (c) slippery slope arguments are generally misplaced in the context of same-sex marriage; and (d) Fred’s account of the slippery slope more accurately captures the spirit of the metaphor than Gene’s.

The essence of the slippery slope is a metaphor about a mountain: The peak of the mountain is stable, the sides are unstable (“slippery”), and bottom of the slope is bad. (If you are an acrophobic non-skier like me, think the top of the ski lift with a jump at the end of the slope). Even if the slope is just as good (or bad) a place to be as the peak, one should stay off those slippery slopes to avoid sliding into a place that is worse than both the peak or the slope – the bottom. To capture the metaphor, therefore, one needs to identify arguments in which a move from peak (P) to slope (S) is attacked despite the apparent harmlessness of S because, once one re-locates to S, one will be inexorably sent to the bottom (B), where S is closer to, but more desirable than, B.

With this definition in mind (which differs from Gene’s in one respect that I’ll clarify after the jump), here’s my taxonomy of legitimate slippery slope arguments:

(1) The Calculated Creep: A vague rule is proposed with desirable applications – but the opponent states that (a) the relevant decision-maker will deviously exploit the vagueness to extend the rule in undesirable ways and (b) no one can come up with a well-crafted amendment to arrest the creep towards the undesirable applications.

(2) The Subtle Sorites: A rule is proposed with desirable applications that requires judgments of matters of degree – that’s the "sorites" -- but the opponent of the rule states that (a) the well-intentioned decision-maker will be unable to determine when the rule has been taken too far and (b) no one can come up with a well-crafted amendment to arrest the creep towards the undesirable applications.

(3) The Recondite Reductio: A rule is proposed that has a rationale with both desirable and undesirable implications – but the opponent states that (a) the well-intentioned decision-maker will not likely distinguish the desirable implications from the “absurdum” and (b) no one can come up with a well-crafted amendment to prevent the absurdum.

Here’s an illustration of all three modes of argument.

Rick: I loathe protests against University's admittedly dumb decisions about honorary degree awardees at festive celebrations of communal unity like graduation ceremonies. These ceremonies should be a DMZ free of the usual political fracas.

Brian: Really? You’d even look askance at a protest of David Duke, the KKK guy?

Rick: Well, uh, I guess that I’d approve of protests against handing out degrees to truly bigoted knuckleheads with no genuine achievement like Duke.

Brian: Great! We’re all going to go to Wash. U. to protest Phyllis Schlafly’s getting a degree. Wanna come? She’s said a lot of mean things about feminism, immigrants, gays, and (gasp) natural selection. Alan Wolfe panned her biography. Get in the van.

Rick: Schlafly?! Gee – she’s sort of close to the line, isn’t she? I mean is she truly a Bigoted Knucklehead? I only want to protest true BKs, for sake of preserving that festive communal atmosphere, etc. Half of the Republicans in the House have probably said all of the dumb things that Schlafly has said. She has not put on a white robe with a pointy top or marched around with swastika like Duke, right? And, unlike Duke, she has a JD and has been one of the most effective political organizers in the 1970s and 1980s – important enough to earn a laudatory biography published by Princeton Press, even if some reviewer that you cite panned it.

Brian: Those are all terrible, rotten, really bad arguments! You just said that you’d allow protests against Duke – and the differences between Duke and Schlafly are just matters of degree (the subtle sorites/calculated creep), so protesting Schlafly follows directly from your own premises (the recondite reductio).

Rick: OK. I’ve had enough. We need a bright-line social norm condemning all graduation protests of honorary degree awardees. The President and Board of an accredited college would never approve a true BK like David Duke, and, once we condone and approve protests against folks like Schlafly, we will be drawn into protests against any person with controversial views and dubious intellectual eminence. It is a slippery slope….

Brian: You are a knucklehead.

Rick: You’re intolerant.

(Just for the record: Brian never called me a knucklehead, I did hint that he might be intolerant, and nothing he wrote about me even came close to crossing any “civility” line. Moreover, his smacking me on his blog earned me envy from all of my Philosophy prawf buddies who said that they had always wanted to be smacked on the biggest philosophy blog in the biz. So thanks, Brian).

In my little dialogue above, “Rick” properly invoked the Slippery Slope. But opponents of same-sex marriage cannot do so. There is no sorites: Same-sex marriage is itself a bright-line category that does not include polygamy, etc. Moreover, the rationale for same-sex marriage is that same-sex couples are indistinguishable from heterosexual couples, except that they cannot procreate with each other. Hard to see any recondite reductio there that will ineluctably draw us into polygamous, polyandrous, bestial, or other couplings.

Gene Volokh has a broader definition of “slippery slope” arguments and thus reaches a different conclusion about the applicability of such arguments to same-sex marriage. He defines slippery slope arguments in his '03 piece to “cover[] all situations where decision A, which you might find appealing, ends up materially increasing the probability that others will bring about decision B, which you oppose.” He urges that it does not matter “whether or not you think that A and B are on a continuum where B is in some sense more of A, a condition that would in any event be hard to define precisely.”

I think that Gene’s broad definition loses the essence of the metaphor. His definition, for instance, would apply to any opposition to a “killer amendment” based on the strategic fear that the amendment, even if inherently desirable, would defeat one’s most preferred position. The locus classicus of such amendments is Representative Howard Smith’s proposal to add gender to Title VII – a move intended to defeat the prohibition on racial discrimination and opposed as such by many liberals who approved of bans on gender- and race- discrimination, because they believed that the amendment would doom the latter. It would be an odd use of language, I think, to object to Smith’s amendment on the ground that it would create a slippery slope towards no prohibition on racial discrimination – but Gene’s definition of slippery slope arguments would allow just such an inappropriate use of the phrase.

In short, the essence of the slippery slope is the inability to come up with an amendment that will constrain decision-makers, either because language or the decision-makers are imperfect. Schauer’s account captures this essence better than Gene’s – although Gene’s article has truly wonderful illustrations on how multi-peaked preferences might scare a legislator silly. But that’s a story for another post.

Your Chance to Speak to New Legal Scholars

At the end of June, the AALS sponsors a conference for law professors just entering the profession. The program includes panels on teaching strategies, learning theory, law school politics, and other essentials for newcomers.  There's also a panel on scholarship, a sort of "how to" session.  I will be one of the panelists. 

My able co-panelists--Angela Davis and Cheryl Hanna--will talk about the actual writing process and the distribution of the written work after it is complete. I will be talking about "getting your ideas."  Put another way, this panel requires someone to talk about the current landscape of legal scholarship, and to suggest to newcomers how they might try to enter and change that landscape.

I've got some ideas for a taxonomy of legal scholarship that could be useful for new law profs. But I would like to hear ideas from others.  So here's the deal:  send me your ideas for how to break down the subject matter and methodologies of legal scholarship into categories that will be useful for new law professors.  If I decide to use your suggestions, I will of course publicly attribute the idea to you.

Tell me:  what should new law profs hear about the legal scholarship landscape? 

Some Weekend Reading: A Review of Posner and Powell

Looking for something to do this weekend?  I have just the thing for you.  Here is a short draft review, which should hopefully be destined for a popular practice journal, of two great new books: Richard Posner's How Judges Think, and H. Jefferson Powell's forthcoming Constitutional Conscience: The Moral Dimension of Judicial Decision.  Both are splendid, and I hope the review is a nice introduction.  I hope fans of virtue jurisprudence will find it particularly interesting, but it should be of general interest to students of and kibitzers in constitutional law and people who are interested in the judge's craft -- that is to say, everyone who reads this blog.  Here's the abstract:

This is a short review of two new books on judging -- Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner. Although both books examine the same topic, and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law, their approaches diverge significantly. Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case. Posner brings his economist's toolkit, supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism, to many of the same questions. Their goals are somewhat different, and their conclusions, despite some common ties, present a striking contrast. These books may be read as complementary and not just competitive accounts. Nevertheless, I suggest that Posner's account is far more descriptively accurate, although Powell leads us, commendably, to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account.

And here's a brief snippet comparing the two authors:

Powell would drape the figure of Lady Justice in new and glorious robes, albeit robes of ancient design.  Given his druthers, Posner would criticize the cut of Justice’s robes, scoff that they aren’t warm enough to have any useful function, and digress to note that the taboo against nudity is itself a historically contingent and only locally applicable social norm.  (Seriously.  Doubters may consult the index entries on “nudity” in Posner’s Sex and Reason.)

Enjoy.  May I add self-servingly that I would love to expand this short review into a full-on treatment for a law review, and I invite law review editors who might be interested to let me know. 

And the Court saith, "it is more blessed to receive than to give"

Out of the 24 decisions handed down so far by SCOTUS this term, I award the coveted "Golden Blinkers" prize for most Senselessly Formalistic Statutory Interpretation to Watson v United States (06-571). 

Issued on December 10th, 2007, Watson held that receiving an unloaded gun in exchange for drugs is not “using” the gun  in a drug transaction under 18 U. S. C. §924(c)(1)(A).  This result could be sound enough: If the purpose of the statute is to penalize the combination of guns and drugs because the two together lead to violence, then it is plausible to believe that a sensible Congress would not want to impose a special sanction on someone who used guns as a form of currency to purchase drugs as opposed to, say, rubles, euros, or seashells.  (On the other hand, since undergoing leg surgery on Monday, I've been consuming the very drug (oxycodone) that Mr. Watson was selling, and I can assure the reader that anyone possessing the stuff ought to be kept far, far away from firearms -- or blogs, for that matter).

The wackiness of Watson is not the result but the reasoning:  Watson distinguishes rather than overrules Smith v. United States, 508 U.S. 223 (1993), a decision in which the Court held that  “use” includes “use as an item of barter.”  Smith had "used" the firearm by exchanging it for cocaine.  So, as the law stands now, if one exchanges a  gun for drugs, one "uses" the gun in a drug transaction and is eligible for a stiffer sentence, but, if one exchanges drugs for a gun, one does not "use" the gun and will get a lighter sentence.

Such a result, as a matter of policy, strikes me as utterly insane.

I can imagine that a sensible legislature might impose special penalties on both drugs-for-guns and guns-for-drugs. I can imagine a sensible legislature refraining from imposing such penalties on either transaction. But I cannot conceive of any sensible reason why a legislature would want to penalize giving guns but not receiving guns. The Court derived these results from the notion that firearms are not "used" unless they are "actively used" to further the forbidden transaction. Receiving a gun is just not "active" enough, but bartering away a gun is. The only thing wrong with this reasoning is that it ignores the overall policy reason for enacting the statute in the first place -- which is presumably to deter people from mixing drugs with guns. What possible difference should it make that a defendant is on the receiving end rather than the giving end?

I have an inkling that the Smith/Watson result is the product of the Court's increasing adherence to formalistic modes of interpretation that ignore the larger purpose of a statute to focus on the meaning of individual phrases taken in isolation from those larger purposes. Scholars and judges make familiar normative arguments in favor of such approaches -- e.g., reduction in administrative costs (Vermeule), reduction of judicial discretion (Easterbrook), disciplining of Congress (Scalia).

I do not intend to engage with the abstract merits of these approaches. I simply observe that the result in Smith/Watson seems to me a reductio ad absurdum -- preposterous, nonsensical, law-is-an-ass whimsy. If this is the fruit of the Vermeule/Easterbrook/Scalia approach to statutory construction, then count me out.

Horowitz on Deference, Hills on Pragmatism

My apologies for being MIA lately, despite having agreed to be a guest blogger. I have been in Ann Arbor, MI, attending the Federalist Society student conference and checking up on a farmhouse that, sadly, I (a hapless victim of the real estate downturn) still own in Michigan.

Paul Horwitz asked me on Wednesday, March 5th (an eternity ago in bloggers’ time) about the relationship between deference to institutions and distinctions between constitutional meaning and constitutional implementation. (As he notes, these are a couple of topics on which I have written). Paul’s question provided an occasion for me to read over his excellent piece in Notre Dame Law Review on the Three Faces of Deference, for which I am grateful. (See article)

I largely agree with Horwitz’s account of judicial deference. I think of the concept in terms of Raz’s concept of “preemptive authority”: Sometimes decision-makers can do a better job of making a correct decision if they substitute someone else’s judgment for their own. As Raz, Horwitz, Robert Schapiro, and others have noted, this means that the decisionmaker must adopt others’ decisions that the decisionmaker thinks are incorrect on their merits, trusting in the superior expertise of the authoritative decisionmaker. In reply to the famous bumper sticker, “Question Authority,” the advocate of preemptive authority defiantly replies, “No, I won’t!” (incidentally contradicting and confirming the bumper sticker simultaneously).

But here is where I disagree with Paul. I think that Paul’s distinction between “epistemic” deference and “legal authority” deference misleadingly distinguishes between fact and value. As a thorough-going pragmatist, I think that the fact-value distinction is unhelpful. In constitutional theory, it has led to the disastrous distinction between “constitutional meaning” and “constitutional implementation.” As Paul notes, I have attacked this distinction elsewhere. (For my latest sally, you can see my review of Kim Roosevelt’s book in Judicature) (See review)

The problem, in brief, is that we can have no concept of “epistemic authority” (authority to make factual judgments) without a normative theory about what constitutes appropriate fact-finding method for a particular social sphere. Obviously, the criteria for making true judgments in physics will be different from the criteria in history, psychology, religion, art, etc. The reason why I describe myself as a “Pragmatist” is that I subscribe to this notion that we have multiple criteria for “truth,” and this notion was most famously explained by and defended by William James in his “Will to Believe” as the “multiverse.” (Nelson Goodman made a similar argument in his “Ways of World-Making”).

Deciding whether some institution has “epistemic authority,” therefore, requires the judge to have a normative theory about what constitutes the right method. But this normative theory amounts to a theory of appropriate jurisdiction – in other words, legal authority. Distinguishing between epistemic and legal authority, therefore, assumes that we can have a notion of when an institution is “good” at finding facts without a legal/normative theory of which sorts of fact-finding methods are appropriate to a particular social sphere. But we cannot. Hence, my Pragmatist objection to Paul’s taxonomy of deference.

An example might help. Suppose that the mayor of Ann Arbor, pursuant to some city ordinance, were to overrule the University of Michigan Law Faculty’s decision not to tenure a professor. “The professor deserved tenure!” the mayor declared, citing the candidate’s publications and good teaching evaluations. A court might review the mayor’s decision by asking whether the city had jurisdiction over the university or by asking whether the law faculty is better at making judgments about tenure than the mayor. But I say that these decisions cannot be disentangled. The law faculty is “better at” judging academic credentials only because “we” the (state or federal) people have declared that this is the sort of judgment that ought to be made academically rather than electorally. We may have made this declaration explicitly in statutes or constitutions or (more likely) implicitly in various social practices inferred from tradition and social norms. But it is the social choice to choose one set of criteria for truth over another than bestows “epistemic authority” on the law faculty. It might be that, in some abstract sense, mayors will in general choose “better” – meaning, say, more politically relevant, more interesting, kinder, more intelligent -- profs than law faculties. Who knows? But the relevant criteria is academic, because “we” said so. Epistemic authority is defined by legal authority.

Once one accepts the proposition that epistemic authority – the ability “correctly” to infer “facts” – is normative, then the anti-pragmatist notion that such an ability can be inferred without a theory of authority collapses. And so does the distinction between constitutional meaning and constitutional implementation. All of those allegedly “non-constitutional” considerations about how best to implement the constitution’s “meaning” turn out to be thoroughly normative and legal, tied up with the usual constitutional criteria of text, original understanding, post-enactment history, precedent, and so forth, Why should courts not decide issues that are not judicially manageable? Because they are not the sorts of issues that courts are good at deciding. But why are courts not good at deciding them? Because we have a specific normative theory of what it means to be a “court” that is derived from the usual sources of constitutional authority. The business of inferring those normative commitments is not a whit different than the business of inferring our constitutional commitments to equality and so forth.

Fallon and Roosevelt and Berman make the judgment about implementation seem more contingent, more empirical, less “legal” than decisions about pure meaning. I think that this is an error. In this sense, Pragmatists like myself and Daryl Levinson disagree with what I have called the “anti-pragmatist” arguments of Mitch Berman, Dick Fallon, Kim Roosevelt, and (I think) Paul Horowitz.

An Abstract of Punishing Family Status

I'm very happy to announce that Ethan Leib, Jennifer Collins and I have just shipped off a draft of our paper, Punishing Family Status, to a bunch of law reviews. 

This paper tries to break ground by providing analysis of two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of “family ties burdens” or penalties that impose punishment upon individuals on account of their familial status. The six we train our attention on here are vicarious and omissions liability, incest, bigamy, adultery, and failure to pay child support. Part II develops a framework for the normative assessment of these family ties burdens.

By looking at these sites synthetically, we uncover what might be thought of as the secret ambition of these family ties burdens: namely, the promotion of voluntary care-giving relationships. We explain the nature of this rationale and its implications for proper policy design—particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.

We’re very excited about this paper, which is part of a larger book project -- tentatively entitled: Privilege or Punish? Criminal Justice and the Challenge of Family Ties -- that has received offers of publication from three top university presses: OUP, Yale, and CUP. Over the course of the next few weeks, we will be sharing  highlights and excerpts of the paper. We welcome your substantive feedback via email or in comments here at least until summer 2008, as we will be revising this and our  earlier effort together while integrating them into a unified book length treatment on how and why the criminal justice system  discriminates against defendants (positively and negatively) on the basis of family ties or status.  Stay tuned. And if you're interested in the whole draft of Punishing Family Status right away, please feel free to email me. We still have a bunch of comments we're responding to so we haven't yet put it up on SSRN, but we will in the next month or so.

Looking Back: Papers Enjoyed in 2007

Over at LTB, Larry has usefully given a list of ten books and ten papers (with shout-outs to my colleague Curtis Bridgeman and guest-prawf Rob Kar) he's really liked drawn from the last year. I'm quite certain I haven't read ten full new books this past year; indeed, I'm not sure I even read ten old books this past year but Larry's lists are inspirations.

On the other hand, I am quite certain I've read at least ten articles or books this past year. Here, in no particular order, are some of the ones I've really enjoyed and learned from this past year, drawn mostly from the areas of criminal, tort, and family law. Some are older, but most are relatively recent. Feel free to add your faves in the comments.

John F.G. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation

Stuart Green, Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime

Elizabeth Emens, Monogamy's Law

Michael Cahill, Retributive Justice in the Real World

Paul Horwitz, Three Faces of Deference

Darryl Brown, Democracy and Decriminalization

Jack Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo

John Goldberg and Ben Zipursky, Tort Law and Moral Luck

Paul Robinson, Distributive Principles for Criminal Liability (book manuscript)

Jeff Murphy, Well Excuse Me! - Remorse, Apology, and Criminal Sentencing

Update: The Third Annual AALS Prawfs Co-Op Happy Hour: Jan 3d 9pm at Sheraton Hotel Library Bar Fireplace Room

Save the date and time and mark the place. Your friends at Prawfs and Concurring Opinions warmly invite you to join us for a get-together in NYC on Thursday January 3d at 9pm. (Actually we have the room reserved for us from 830pm on, so if you wish, please come early.) We will be meeting at the Sheraton Hotel's "Libary Bar" in the Fireplace Room.  Please mark your calendar for this special occasion.  And feel free to tell your cool colleagues to join us as we raise a glass to toast the new year. The address for the event is 811 7th Avenue 53rd Street · New York, New York 10019.

The Search for Occam's Dildo and Other Favorite Footnotes

I have found that one of the best ways to postpone grading papers is by doing one's own scholarship and reading semi-related materials. By leaving slightly less time to get grading done, I intend to have a more focused mind. That's the plan anyway.

This week, the strategy (at least the first part of it) has been working for the most part, and I've made good progress on the two projects at the front burners, Retributive Damages, and the book with Ethan and Jennifer Collins on the use of family ties burdens and benefits in the criminal justice system.  While reading some very interesting work of Mary Anne Case (UChicago) for the latter project, I came across a very funny footnote. It's in an article entitled, Of Richard Epstein and Other Radical Feminists, 18 Harv. J.L. & Pub. Pol'y 369 n. 9 (1995). Here it is.

See, e.g., Richard A. Epstein, Gender is For Nouns, 41 DePaul L. Rev. 981 (1992); The Authoritarian Impulse in Sex Discrimination Law: A Reply to Professors Abrams and Strauss, 41 DePaul L. Rev . 1041 (1992). Besides Kathryn Abrams's and David Strauss's replies to Epstein, the recent legal academic literature on the intersections of feminism, sociobiology and libertarianism includes Richard Posner , Sex and Reason (1992), and the flood of critical reviews it provoked. See, e.g., Robin West, Review Essay, Sex, Reason and a Taste for the Absurd, 81 Geo. L.J. 2413 (1993). Sociobiology may appeal to Epstein and Posner because for them it seems to be little more than law and economics plus sex. In their relentless telling of sociobiological “just-so” stories, both Epstein and Posner may have fallen victim to what Todd Preuss has called Occam's dildo.  While Occam's razor requires that of two competing explanations the simplest be selected, Occam's dildo predicts that the most titillating of the two explanations will be preferred.

Feel free to nominate others you've come across in the comments.