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Monday, November 19, 2007

Voluntary Criminal Law Regulation

Some of you probably remember that Ethan, Jennifer Collins and I are co-authors on a project looking at the way the criminal justice system uses familial status to distribute various benefits and burdens.  The first part of the project, which looked at various family ties benefits, appeared in Illinois Law Review a few months ago and is available here at this link

We are now close to finishing a draft of the second half of the project, which looks at and evaluates the burdens imposed on persons as a result of their familial status or familial connection to the crime.  Examples include omission liability, vicarious liability, and, depending on the way jurisdictions craft the statutes, incest, polygamy, and adultery. In the course of some (purely sedentary--not experiential) research on incest, polygamy and adultery, I've come across some really interesting articles that deserve some shout-outs. 

Together, they have helped me (and perhaps only me) come around to the unconventional position that (and here I continue to dash any possibility of elected or judicial position later) incest rules should be abolished or substantially modified, and that bigamy and adultery laws should be retained but modified subject to the preferences of the participants.  I won't bother defending or explicating these views now--I imagine I'll have some posts with considered views on this subject in a future  month.  But I wanted to highlight some of the work that helped me reach these tentative views.  What's interesting about the following articles is that a) they were all written by students or pre-prawfs, and b) together they exemplify the notion that reasoned argument actually might change people's "priors" about even familiar social institutions.  Before I mention the articles after the jump, I should add that I will be work-shopping our work on this topic at Prawfsfest at Loyola Law School (LA) in December (more on that event shortly), and that other opportunities to present this work in progress during the spring semester are very much welcomed.

The first piece I want to spotlight is a fascinating student note by Jeffrey Hayes analyzing the rhetorical and legal strategies of polygamy activists.  The piece is entitled Polygamy Comes Out of the Closet: The New Strategy of Polygamy Activists. It appeared recently in the Stanford Journal of Civil Rights and Civil Liberties. Also well-worth your while is an anonymous student note entitled Inbred Obscurity: Improving Incest Laws in the Shadow of the "Sexual Family, which appeared in the Harvard Law Review in June 2006.

The third (and substantially longer) piece, which I thought was masterfully executed, is by Liz Emens (now a Columbia prawf). It is entitled Monogamy's Law: Compulsory Monogamy and Polyamorous Existence. The citation is 29 N.Y.U. Rev. L. & Soc. Change 277 and a draft is available on SSRN. What I really liked about Emens' piece is how she wove together notions of contract theory about penalty default rules vs market mimicking contract rules to the context of criminal law, specifically whether couples should be able to opt in to a regime of criminal law regulation to ensure exclusivity between couples. Although in the end Emens thinks adultery laws should simply be abolished, she engages in a powerful thought experiment in which spouses would have the option to contract around adultery laws. I wasn't persuaded -- at least not yet --  by Emens' refusal to buy the result of her own thought experiment. She invokes Lawrence v. Texas as part of her skepticism but my guess is that voluntary criminal law regulation would pass constitutional muster and would also satisfy most of my liberalism-based inclinations too. In any event, I highly recommend the article to you all.

(I should close by noting that the Emens article is on the long side  (about 54000 words according to Word) and I fear that one of the costs of the new rules on length in law review articles is that articles of this sort and ambition are profoundly hindered. But that's the topic of another post.)

Posted by Administrators on November 19, 2007 at 03:05 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink

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Comments

"Would you feel the need to add that if you were talking about studying disease or war or anything else you obviously would not be experiencing in order to study?"

Anonymous,

I don't know if Markel was trying to make a funny or not. I do know that your argument is flawed. People make jokes about war and disease all the time. Like in the case of incest, few people make the logical jump you have that it reflects some lack of sympathetic understanding about a subject matter. Your moral outrage is overblown, and, as Markel points out, severely undercut by your unwillingness to take ownership of your words. I don't know why you'd think that line that drew your ire was more than a bit of wordplay dashed out quickly with no intent in any direction.

Posted by: Bart | Nov 20, 2007 2:03:25 PM

Jim, thanks for making a point which should really need no mention. Anonymous, if you're so confident that this was really a thoughtless comment revealing gross insensitivity, I wonder why you would feel the need to carp behind anonymity. But for what it's worth, the comment was meant purely to give comfort to my wife and family, not to make light of any harms endured by victims of sexual abuse. I'm sorry you read my statement that way and I hope no one else did. It's not what I intended.

Orin, I hope you're right. In any event, I found it revealing that of the 11 papers in Matt Bodie's study (which I linked to), 6 of them had affiliations with the law review's law school. Moreover, take that fact with the fact that Harvard LR's longest article was 84 pages during the measured period and what that suggests, to me, is that long articles are having a tough time getting into the best journals without some juice by faculty. But, like I said, I hope you're right. Some evidence for your claim is that Liz Emens' latest piece, which Ethan referenced earlier, is over 100 pages in a recent issue of Chicago's LR. And it's also quite interesting!

Posted by: Dan Markel | Nov 20, 2007 12:16:26 PM

Jim, So are you saying -- without saying it -- that the aside was *not* offered in "jest"?! If you are making that (implausable) claim, I will only be persuaded if you give a reason. Notably, you did not. Second, I said nothing about what I "associate " with the word incest. I just happen to know several incest victims, and they would never -- never -- read that little aside as anything but a thoughtless comment that reveals a gross insensitivity.

Posted by: anonymous | Nov 20, 2007 11:13:52 AM

Anonymous, first, I think you presume too much, and second if you would just read the first two paragraphs of the article on incest Prof. Markel linked to you would know that the legal definition of incest encompasses more than what you apparently associate with that word.

Posted by: Jim Green | Nov 20, 2007 8:24:32 AM

I fear that one of the costs of the new rules on length in law review articles is that articles of this sort and ambition are profoundly hindered.

This is just a minor aside, but I 'm not so sure that articles of that sort or ambition are profoundly hindered by the change in length preferences. Editors I have spoken with tell me that the real objection is pointless length. If the article is really so profound and important that it really needs to be very long, journals are happy publish it. That's my sense from the editors, at least.

Posted by: Orin Kerr | Nov 19, 2007 9:49:19 PM

Presumably you think that this parenthetic is funny: "In the course of some (purely sedentary--not experiential) research on incest, polygamy and adultery, I've come across some really interesting articles that deserve some shout-outs."

Would you feel the need to add that if you were talking about studying disease or war or anything else you obviously would not be experiencing in order to study?

I think it is revealing -- of someone who does not grasp the meaning of incest and its implications. Anyone who does would not make light like that. How sad that your sedentary studies have left you without this understanding.

Posted by: Anonymous | Nov 19, 2007 9:16:18 PM

Yes, Ethan is correct, which is why I wrote: "Together, they have helped me (and perhaps only me) come around to the unconventional position ..."

Stay tuned for how this washes out...

Posted by: Dan Markel | Nov 19, 2007 7:06:44 PM

I should add that as a co-author on this project, Dan and I are not always in agreement and we are still very much working out our "collective" position on these matters. When he says, for example, that "bigamy and adultery laws should be retained but modified subject to the preferences of the participants," I'm not sure the three of us agree on that proposition -- at least not yet. I, for one, do not think the argument we are in the process of making neatly requires that result. Indeed, I think our argument requires that "default" rules such as Dan seems to prefer be rejected. We'll see how it all comes out in the finished project. But in the meantime, I'd urge a quick look at Emens' latest in the U Chi L Rev on Naming Rules: it helps one see that "sticky" default rules which are unlikely to contracted around in the vast majority of cases are deeply troublesome.

Posted by: Ethan Leib | Nov 19, 2007 6:08:48 PM

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