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Wednesday, June 29, 2005

Whitman on Nussbaum, and me

Over at the Harvard Law Review, you can access the abstract to Jim Whitman's trenchant, albeit sympathetic, critique of Martha Nussbaum's last book, Hiding from Humanity: Disgust, Shame, and the Law.  The full citation is 118 HARV. L. REV. 2698 (2005).  Whitman's writing is, as always, erudite, elegant and a joy to read.  Here's a sample from the abstract:

Maybe it takes a philosopher to remind us that human psychology presents tougher and more frightening problems than the ones we most enjoy discussing in the classroom. The human animal is capable of behaviors unimagined by our rational actor models, and even by our most resolutely “behavioral” brands of law and economics. Hiding from Humanity faces up squarely to that psychological truth. Al-though it has been marketed, to some extent, as a book about T-shirts and bumper stickers, Nussbaum’s book is more. It is an effort at frank reflection on the nastier human emotions, and an exploration of their place throughout the entire landscape of the law. If the book achieves nothing else, it will deserve praise for that.

This is a book that rubs legal scholars’ noses in the problems represented by Abu Ghraib, and it arrives at a moment in our history when that is exactly what we need. The ultimate success of a book depends, though, on the power of its particular arguments, and by the end of this Review I will have to report that I find Nussbaum’s arguments disappointing. This is a book by an author with an admirably humane sensibility, and a much richer grasp of the human predicament than most of our legal academ-ics display. It is also a book that could hardly be more timely. In the end, however, it is a book by an author who has not, to my mind, fully reckoned with the problems presented by the law.

In the body of his review, Whitman also kindly calls attention to my "acute writings," which Nussbaum relied upon in fashioning her anti-shaming punishment position.  (Disclosure: I gave Martha extensive comments on the manuscript in the summer of 2001, a few years before it was published.)

At that moment in the review, Jim, who I've known as a good mentor and wise reader of drafts for a while, drops a footnote to "protest" a misuse of his work by me, and by extension, Nussbaum, who repeated my "mistake."  In my 2001 Vanderbilt piece, I had ascribed to Whitman the sense that he thought shaming punishments were "beautifully retributive." Here's what Jim had written in his 1998 Yale piece, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055, 1062 (1998)

Here Kahan is joined by Toni Massaro, who, though a critic of shaming, concedes that shame sanctions are fully compatible with standard punishment theory. There is, these scholars observe, no empirical reason to suppose that shame sanctions cannot deter; they seem beautifully retributive; they may well rehabilitate better than prison does; and they might even serve to incapacitate. (footnotes omitted)

Jim's footnote 71 in HLR states that his use of the phrase "beautifully retributive" was merely describing

the attitudes of others toward these punishments, without offering my own account of retributivism.   But Markel, see Markel, supra note 1, at 2182, and Nussbaum (p. 239) cite this passage as though I had offered such an account.  What I do believe is stated in the text of this Review: "retribution" is a slogan that encourages punitiveness, and Markel and Nussbaum have not offered any reason to suppose that careful philosophizing about the distinction between retribution and vengeance can do anything to ward off that danger.

Jim is right that he does not offer an account of retribution that would ipse dixit embrace shaming punishments in his 1998 piece.  I think I was thrown off by the fact that he used semicolons, which separated, in my mind, his views from those other scholars who wrote concerning about deterrence.   Moreover, I think Jim's point -- that retribution is a slogan that encourages punitiveness -- also indicates that retribution would therefore be indiscriminate about which kind of punitiveness is inflicted upon criminals, and thus that shaming punishments would be perfectly fine under the flag of retribution.  So, it's true that it's not correct to assume that Jim thinks shaming is "beautifully retributive" based on a developed account he offers, but I do think that his stated argument fairly, if not ineluctably, leads us to that conclusion.

And in that respect, this is where I think he errs.  For the point of my Vanderbilt piece was to explode the then-emergent consensus among scholars that shaming was compatible with retributive punishment.  I argued that shaming is more in line with vengeance and not retribution properly understood.  And that distinction, I believe, is what Martha picked up on by embracing (at least in part) the kind of retributive understanding of punishment that I've been advocating in my scholarship the last few years.  Jim may not think that distinguishing between retribution and revenge will have much political traction; I disagree and my piece on the retributivist case against the death penalty (which is coming out any day now in Harv CRCL) tries to explain how to develop that traction.  (You can find it on my ssrn page.)

All this is arguably small beer, at least in terms of policy.  All three of us agree that punishment in America fails to conform in large measure with the requirements of respect for human dignity, and all three of us are against shaming punishments, which were recently upheld by the court in the Ninth Circuit in Gementera.  (Sadly, a month or two ago, the Ninth did not agree to take the issue en banc despite some votes to do so.)  So this is a lot of inside baseball, but I thought it might be of interest to at least a few readers.

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I take your point. But, I've read quite a lot of Nussbaum's work, both her earlier stuff and her more recent work. I think there's been a serious decline in quality, with a lot of it being pretty sloppy. The review by Kekes in Mind, I think, makes the point quite well. I recommend it again. My impression is that among philosophers this is a not uncommon opinion. (I believe Brian Leiter made the point some years ago by saying that she was more respected outside of philosophy than inside, in part becuase of a view that her work wasn't rigerous enough.) Obviously this doesn't apply to everything she does, and I admire some of it, espeically her earlier work. But, I do think her later work is often sloppy and also highly recycled, with essentially the same stuff turning up again and again. (Actually I tend to think that a lot of work by Posner the elder [I've not read much of the younger] and Sunstein suffers from the same defect- it's churned out so fast that it can't both be non-recycled and not sloppy. I think this holds up once one gets past the reputation. Others obviously disagree, but I'd stick to the claim.)

Posted by: Matt | Jun 29, 2005 8:20:08 PM

Matt, I feel moved to defend Martha in absentia from what may have been an unintended or oblique critique. Martha is prolific (and a minor celebrity in intellectual circles) *because* she works incredibly hard and efficiently; moreover, Cass Sunstein, Richard Posner, Richard Epstein, Eric Posner, Adrian Vermeule, and a few others on the Chicago faculty probably produce (at least?) as much as she does -- are they also objects of the same critique? In short, I don't think it's correct to suggest or insinuate that her scholarly integrity is questionable, without more evidence, no matter how much one may cavil with the contents of a particular book. (I put aside the controversy of her testimony in Colorado because I don't think that's what you had in mind.) One thing you may already know is that it becomes easier to write more and more when you already have written a lot. Ideas start spinning out of previous ones and you can draw on the intellectual capital you've accumulated in prior work. That may explain some of the repetitiveness (or coherence) that ties a scholar's work over the course of one's career.

Posted by: Dan Markel | Jun 29, 2005 2:53:18 PM

Perhaps I was inarticulate in my initial comment. To be more careful:

1) I don't doubt that some people who happen to be law professors can tap into and shape public opinion. Hugh Hewitt is a law professor who also has a popular radio show and blog; Glenn Reynolds is a law professor who has a tremendously influential blog. And of course there are many more examples.

2) While law professors can make arguments that can help shape public opinion, arguments of legal theory and philosophy (regardless of who makes those arguments) seem unlikely to move the public in the ways needed to bring about reform in criminal punishments. Notably, the examples Dan gives above are mostly examples of elite law professors shaping elite opinion, not arguments of legal theory or philosophy shaping majoritarian policy preferences.

Posted by: Orin Kerr | Jun 29, 2005 1:56:40 PM

Interested readers should also look at the absolutly blistering review of Nussbaum by John Kekes in the April 2005 issue of _Mind_. It's perhaps the harshest review I've ever read by someone not directly discussed in a book. Kekes makes a charge against Nussbaum that is, I think, saddly right- that much of her work shows the signs of being pretty sloppy and highly selective and not very scholarly. This wasn't always the case with her, but it's hard to see how anyone could put out as many printed pages as she does on top of being a sort of celebrety on the lecture circuit and not have one's work either be pretty sloppy or else largely done by research assistants. I'm not sure Kekes is right on all of his complaints, but many of them seem likely to be on target.

Posted by: Matt | Jun 29, 2005 1:26:06 PM

I'm disinclined to agree Orin on the traction point: various moral entrepreneurs have emerged from the academy, and I bet we'll see more of them in the future: think about the intellectual basis for sexual harassment law, which I think most people attribute to the work of Catherine McKinnon. Other movements have at least been accelerated by the work of legal academics, who if nothing else, help lend an aura of intellectual legitimacy to otherwise controversial developments: gay rights (Lawrence I believe cited various law reviews), animal rights, alternatives to incarceration (whether guilt or shame punishments--the Ninth Circuit (both majority and dissent) relied on law review articles in part for their arguments); organ donation/selling schemes; legalization of drugs. To be sure, some of these have occured in the courts, but not all (think medical marijuana at the state level). I bet legislatures are not as impervious to moral entrepreneurship (instigated by academics). Think also of Lessig's success in creating a movement in support of the public domain. The guy's created millions of acolytes. History is still unfolding on these and other challenges before us.

Posted by: Dan Markel | Jun 29, 2005 1:10:53 PM

Everything by Whitman is well worth reading, and I found his review pretty strong stuff on the whole. Thanks for pointing it out. On the specific point Whitman makes about political traction, I think he is pretty clearly right. If the question is how to fashion arguments that will resonate with the American people, I'm not sure that legal theorists and philosophers are well suited to provide the answers.

Posted by: Orin Kerr | Jun 29, 2005 12:14:54 PM

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