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Wednesday, December 21, 2011

Emily Calhoun's Losing Twice

I mentioned Emily Calhoun's recent book Losing Twice: Harms of Indifference in the Supreme Court in a post the other day and said I couldn't wait to read it.  I had a chance to read it yesterday and want to commend it to readers (and Christmas shoppers).  Here's OUP's description of the book:

Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Given our adversarial system, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. 

In Losing Twice, Emily Calhoun . . . [argues] that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, Calhoun contends, the role of judges needs to be reconceptualized. She contends that the Court should not perceive itself simply as an adversarial forum, but also as a 'transactional' one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss.

Now, by way of self-promotion (I too am interested in the Christmas shopper market!), I want to say I address some of these issues in The Agnostic Age.  But Calhoun develops these ideas at length (but not lengthily -- the book is reasonably short) and far more richly.  It's also a very readable book, pitched just right for law professors and students but also for general readers.  And it's a tremendously valuable topic.  For a variety of reasons, we do not think enough about losers in constitutional cases.  Obviously we care about who wins or loses, but once having concluded that someone must lose, our concern for the losers drops off dramatically.  That's too bad.  Calhoun is absolutely not arguing that no one ought to lose in constitutional cases, or that we ought to always cut the baby in half.  But there are all kinds of ways to tell someone, "you lose," and those different ways can be fairly important.  (Not all-important, but fairly important.)  It seems to me Calhoun's book intersects nicely with two different questions.  The first has to do with the role of empathy in the law, including all the debates in recent Supreme Court nominations.  Even an empathetic judge can and must say that someone wins and someone loses, and compromise is sometimes just not an option--at the Supreme Court level, at least.  But empathy, whether it plays a role in judging cases or not, can play an important role in how we express those decisions.  I especially commend Calhoun's discussion of the trial court's announcement of his judgment in Colorado's Amendment 2 case, which is an exemplar of how to speak meaningfully to both sides in a highly divisive case.

Second, the book can tell us much about a perennial concern: how to address illiberal groups in a liberal society.  That's the point of my discussion in The Agnostic Age: in cases like the famous Sixth Circuit case of Mozert v. Hawkins County, we may think that an illiberal group (in that case, religious objectors to the use of a general reading primer for primary school students) has to lose.  But just because they have to lose, that doesn't mean we need to deny the existence or importance to them of their claims, or to speak to them in language that 'shuts them out.'  There is always at least the possibility of trying to reach out to illiberal groups and to tell them that even if they lose, they are still members of the constitutional community and deserve to be taken seriously; even as we rule against them, we can still try to embrace them.  

With the caveat that I read the book quickly and need to spend more time with it, let me add a criticism or two.  Inevitably, I don't find all of her examples or arguments convincing (especially her discussion of the BSA v. Dale case).  And I think there was much, much more room for a discussion of law and religion, which seems an especially fertile place for thinking about constitutional "losers."  That said, I think there are good reasons for any constitutional scholar to care about these issues and to read Calhoun's book.  And her bibliographical essays at the end of the book are absolutely terrific.  I encourage you to pick up and read this book.   

Posted by Paul Horwitz on December 21, 2011 at 10:03 AM in Paul Horwitz | Permalink

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