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Thursday, July 09, 2009

Our Intro Freaky Post

Over at the NYTimes' Freakonomics Blog, Ethan, Jennifer Collins and I have an introductory post up discussing our new book, Privilege or Punish. A reminder: if you use the Promo Code 27878, you get the book at 20% off.  And if that's still too much for you or your library -- which is understandable since the hardcover is still pricey -- just shoot me an email and I'll happily send you a free PDF of the book so long as you use/read it for personal use only. After the jump, I reprint the first post, which discusses some of the basic themes of the book.

“Family Values” and the Law: A Guest Post

We previously featured some compelling guest posts by the legal scholarEthan Leib on the subject of friendship and the law. Now he is back, along with his two co-authors on a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. This is their first of three posts.

Leib is a scholar-in-residence at Columbia Law School, an an associate professor of law at the University of California-Hastings College of the Law, and in the spring of 2010 will be a visiting associate professor of law at theUniversity of California-Berkeley LawDan Markel is D’Alemberte Professor of Law at the Florida State University in Tallahassee. Jennifer Collins is a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.

What a Weird Way to Care About “Family Values”: An Introduction
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Most Americans probably understand that our legal system recognizes the family in many ways. Since most people order themselves in recognizable family units, it isn’t altogether surprising that the law takes notice and uses convenient short-hands. For example, since most people probably want to leave money to their families upon death, why not save them some costs and create a default rule for where people’s money should go when they die without a will? Or consider the rule in many states that married couples share their property equally: it is a convenient short-hand that saves people time and money by selecting the rule most of us would probably select and forcing people who want different rules to make their preferences known.

There are also well-known advocates of “family values” in our culture who think the law ought not only to recognize and notice that we often privately order ourselves in families, but that the law also ought to create incentives for us to so organize. These people think we should have tax breaks for getting married and having kids.

Whatever one thinks about these sorts of laws in general, we took upon ourselves the task of seeing how these sets of commitments lead us into a very bizarre and incoherent set of policies in our criminal justice system. Our book, Privilege or Punish, mines our criminal-law apparatus to see how these efforts to promote family values and use family as a short-hand play themselves out in the high-stakes area of criminal law, where people’s life and liberty (rather than a small tax deduction) are on the line. We were surprised by what we found and ultimately concluded that in most cases, the use of family status within our criminal law was quite ill-conceived.

The criminal law uses family status in a willy-nilly way. Sometimes defendants benefit and sometimes they are burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider a few of the ones we plan on discussing here in the next few posts:

  • Nearly 20 states give exemptions or substantial punishment discounts to those harboring a fugitive when that fugitive was a close family member;
  • Many states permit or require sentencing discounts to offenders who are parents with care-giving obligations;
  • Most states impose duties to rescue, supervise, and support children and the breach of those duties renders one eligible for criminal sanction;
  • Most states have bigamy, adultery, and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant.

To crudely sum up our various conclusions, we basically claim that the state should exercise substantial caution and indeed hostility to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we conclude that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one’s family ties or responsibilities.

Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties, burdens, and benefits are often expressly denigrating the lives of those who don’t live by the rules of a heterosexual and repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation. 

Posted by Administrators on July 9, 2009 at 02:43 PM in Privilege or Punish | Permalink


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I think that I'm very mildly skeptical of the claim that "the state should exercise substantial caution and indeed hostility to most attempts to distribute these benefits or burdens based on one’s family status.", as it seems likely to be too strong to me. (I've not read the book and am open to being convinced otherwise.) But I want to ask Rick in what sense he thinks families are "natural, pre-political human societies." It's "natural", of course, that we have biological families, but the structure these families take, and who does what in them, let alone the normative importance of this variation, has varied greatly over time and still varies greatly enough that it seems more distorting than enlightening to call them "natural", and since the nature of the family is quite heavily influenced by the law (as well as other social norms), it seems at least too strong to call them "pre-political" in any strong sense.

Posted by: Matt | Jul 10, 2009 2:58:44 PM

Rick, thanks--I just sent you a copy of the book, and I hope you and all others do read it too (that's why we're willing to give it away for free if you can't otherwise get easy access to it). We think once you unpack the issues more carefully and see how we try to protect voluntary assumptions of caregiving in many respects, even in the criminal law, that much of the initial opposition dissipates, though I agree there might be a little residue, and that residue of opposition will harden!

Posted by: Dan Markel | Jul 10, 2009 1:56:34 PM

I agree, Dan. The post *is* freaky. =-) And, do you all *have* to use "repro-normative"? It seems even clunkier than the usual jargon-y neologism. For what it's worth, I agree that there might well be plenty of instances (including many described in the book) where the law does a bad job of taking account, in an appropriate way, the morally, culturally, and socially significant reality -- and it is a reality -- that persons are situated in families, which are themselves natural, pre-political human societies. But it is not clear to me what it would be about any attractive conception of "liberal democracy" that should make it the case that the state not only should not, but may not, take account of, and appropriately respect and protect, this reality, including through the law. (Ed.: Then read the book, Rick.)

Posted by: Rick Garnett | Jul 10, 2009 1:42:58 PM

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