PrawfsBlawg

Kolber Signs Off

It was great guest blogging at Prawfs during the month of May. My thanks to Howard and his Prawfs colleagues, to all those who participated in the Legal Discontinuities Online Symposium, and to viewers and commentators like you. Here's a link to my posts during this stint and a link to the posts from the symposium.

Lastly, here's Cal Newport writing in favor of blog resurgence (but maybe I'll tweet here occasionally).

Why Retributivism Has a Time Frame Problem

Many have the intuition that those who do good deserve good things, and those who do bad deserve bad things. Retributivists take this intuition quite seriously. They argue that criminal offenders should suffer or be punished in proportion to their moral desert. It is offenders’ moral desert, they believe, that justifies the harsh treatment offenders receive. In the more pure forms of retributivism that I focus on here, moral desert is all that retributivists need to examine to assign amounts of punishment to particular offenders.

It turns out to be quite difficult, however, to decide exactly what counts in assessments of moral desert for criminal justice purposes. Even if we assume desert depends on actions (as opposed to, say, character or virtue), retributivists must decide whether to examine offenders’ desert for crimes and other misdeeds across their entire lives (the “whole life” approach) or only for what are typically recent crimes under consideration at a current sentencing proceeding (the “current crime” approach).

Neither view is acceptable. The whole life view examines all of offenders’ good and bad deeds and all of the good and bad things that have happened to them in order to impose penal treatment proportionate to moral desert. Unfortunately, we have limited evidence of offenders’ prior conduct and of the good and bad things that have happened to them since birth. Moreover, punishing those who have suffered great misfortune risks augmenting the mismatch between their well-being and what they deserve. In some cases, the whole life approach could lead to unworkable “moral madness” (Ezorsky 1972, p. xxv) in which a person has suffered so much that he could knowingly break the law and still be immune to punishment.

Some retributivists might cling to the whole life approach but view it as an idealization. They might say recent crimes are proxies for whole life desert given available evidence. But retributivists widely endorse a firm prohibition on purposely, knowingly, or recklessly overpunishing (Alexander and Ferzan 2009, p. 102, n. 33). In any world we can plausibly imagine, using recent crimes as a proxy for overall moral desert would make the risk of overpunishment enormous and could be deemed knowing overpunishment whenever a judge deliberately ignores evidence from an offender’s past that would mitigate.

Our actual sentencing practices, to the extent they contain retributivist features, largely reflect a different approach. Most judges purport to sentence offenders only for crimes for which they have been recently convicted (the current crime approach). To the extent judges consider offenders’ broader history at all, they typically believe that it informs the seriousness of the crimes currently being sentenced. Outside of prior criminal history, an offender’s broader history has limited effect on sentencing. Sentencing practices vary substantially, however, often in nontransparent ways, and likely reflect both the whole life and current crime approaches to varying degrees.

Even if the current crime view predominates among judges in the United States, retributivists cannot simply rely on what a legal system actually does. They must show that whatever practices they advocate are morally justified. And if desert matters so much to retributivists that it can justify punishment, it’s not obvious why we generally fail to examine desert holistically. Looking narrowly at recent crimes risks ignoring offenders’ positive desert and prior suffering and might cause offenders to get even less of what they deserve than if the state hadn’t intervened at all.

Retributivists must choose a time frame in which to analyze desert, but the choice puts them in an unenviable position. The whole life view is impractical to the point of absurdity, while the current crime view is theoretically unsound. Hence the choice of a pertinent time frame in which to evaluate desert presents a serious challenge to retributivist justifications of punishment (and, implicitly, a challenge to many hybrid theories of punishment that have substantial retributivist components), particularly when such justifications are meant to apply to real-world punishments such as incarceration. Retributivists have often ignored the choice, perhaps because it is so difficult to make. But to uphold the retributivist justification, they must select a time frame and explain why the choice is neither theoretically unsound nor hopelessly impractical.

This post is adapted from the introduction to "The Time Frame Challenge to Retributivism," which appears in the recently-published OUP collection Of One-eyed and Toothless Miscreants: Making the Punishment Fit the Crime? (Michael Tonry ed., 2019).

Quarantine and Incarceration

Most of the attention related to incarceration and the pandemic concerns risks to inmates of catching COVID in close prison quarters without proper masks and social distancing. And the increased attention is well warranted. The pandemic, however, also raises interesting questions about the nature of punishment severity. I have used the example of quarantine over the last decade to make a point about the severity of prison. On any plausible view of severity, it should be measured as a change from one's baseline condition to one's imprisoned condition. For example, many scholars think that prison severity is measured as a deprivation of liberty. If so, the severity of prison depends on the amount of liberty one has in his baseline unpunished condition relative to the amount of liberty in his punished condition. This is how we ordinarily measure harm in other contexts. The harm someone caused to your car depends on its state after an accident relative to its baseline state.

So, counterintuitively perhaps, when everyone is quarantined by state law, the severity of incarceration goes down. Why? Because the change in one's liberties from baseline to incarceration are reduced. The same may be true of some non-liberty views of prison severity. If severity is a function of bad subjective experiences, then severity is a change from one's baseline level of happiness to one's punished level of happiness. If quarantine lowers baseline levels of happiness, state quarantine also reduces the severity of incarceration during the period of quarantine because we measure the decline in happiness from a lower baseline. Of course, if one is in a prison with a high risk of getting COVID, one may have lower happiness both in one's baseline condition and one's punished condition. So consider a very self-interested inmate who has immunity to COVID. The person's change in distress caused by imprisonment goes down because he'd be stuck in quarantine even if he were not imprisoned. (I'm ignoring some debate about whether baselines should be measured as pre-punishment levels or as counterfactual levels, but I think the point can be made either way.)

Such results are not entirely counterintuitive. Consider someone who receives a sentence of home confinement during a period of statewide quarantine. Do we really think such a person received a significant punishment if his rules of home confinement essentially match the rules of quarantine? True, there is stigma attached to home confinement that isn't attached to quarantine. But it still seems like a small potatoes punishment during quarantine. And none of this should come as a surprise to those who think about punishment in consequentialist terms. Prison becomes less of a deterrent during quarantine. Deterrence goes down a bit as the difference between non-incarcerative and incarcerative conditions decreases. At the same time, interests in incapacitating dangerous people may stay relatively constant (though this may change based on how much danger we think people would pose under conditions of quarantine).

But recognizing punishment severity as a change in conditions fits less well with retributivist views. For example, if a defendant were sentenced with an expectation that quarantine will continue and then it is unexpectedly eliminated after sentencing, the defendant will now receive a sentence considerably more severe than that which the judge intended. Yet I doubt most retributivists would care about the risk of overpunishment. Ditto for the reverse case. If a person is sentenced to prison and, while there, a quarantine is unexpectedly imposed on the civilian population, few would think that the (self-interested, immune) prisoner should now spend longer in prison to get what he deserved. I think this is because most people have a duration fetish.  For the most part, they think about prison severity in terms of the passage of time and pay relatively little heed to the severity of prison conditions or, more accurately, the severity of the change of conditions from pre- to post-punishment conditions.

Scholarship vs. Judging/Lawyering

Part of the reason legal scholars fail to clearly distinguish descriptive and normative claims is that they focus more on the “legal” part of their title than the “scholar” part. Almost all legal scholars trained as lawyers rather than scholars, and they fall back on approaches better suited to the profession they trained for. Nevertheless, scholars must recognize the descriptive-normative distinction if they hope to make clear, theoretically-sound arguments. Arguments that are neither clear nor theoretically sound have limited practical value no matter how well attuned they are to real-world legal issues.

There are two big reasons why legal scholars mush their descriptive and normative claims together. First, scholars mush together their descriptive and normative claims because they see judges and lawyers do it all the time. Based on their legal training, scholars think that claims about what the law is often sound more persuasive than claims about what the law ought to be, and they seek the same rhetorical effect that judges and lawyers seek. Law professors mistakenly believe that scholarly discussions of law are similar to discussions of law in court. They fail to recognize that the job of a scholar is very different than the job of a judge or a lawyer; scholars have more demanding requirements of clarity, transparency, and rigor. Lawyers, by contrast, are sometimes professionally obligated to be insincere, and many judges, no doubt, are insincere, writing as though the law is perfectly clear even when it was not prior to the judge’s opinion. Surely some judges take their opinions to be sincere. But I hope judges are frequently insincere when they make confident assertions about legitimately disputed issues because the alternative is that they are simply overconfident in their abilities and sorely unable to recognize genuine indeterminacy. As educators, we do too little to make the distinction between scholarship and legal advocacy clear to law students, so those that become, say, lawyers, judicial clerks, and eventually legal scholars haven’t been trained to make the appropriate distinction or to recognize its importance. (Re'em Segev and I previewed some of these matters in the comments to Monday's post.)

Second, it’s very difficult to combine the weight of law-related moral considerations with the weight of moral considerations unrelated to law. So legal scholars throw their hands up and speak about law and morality as though there’s no difference. Though the task is surely difficult, the weight of different kinds of considerations can be at least roughly combined. Legal scholars should rise to the challenge of addressing such tasks rather than simply ignoring them.

Judge Nancy Gertner (ret.) has provided a glimpse into how judges craft opinions in ways that massage their underlying views. In a 2014 law journal, she wrote about Damien Perry, a convicted drug conspirator she sentenced in 2000.[1] Perry had a troubled upbringing, and at age sixteen, about five years prior to his sentencing, he and a friend were playing with a gun when it accidentally fired and shot Perry in the head, causing Perry to lose his left eye. The bullet remained in his head, causing severe headaches, occasional seizures, and considerable psychological trauma.

When it came to his sentencing for drug-related activities, the government recommended 135 to 168 months’ imprisonment. Judge Gertner, however, considered his activities comparatively minor and would have liked him to receive only probation. Sitting at a time when federal sentencing guidelines were understood to be mandatory, Gertner lamented Perry’s treatment under the guidelines. She seemed pleased to find a reason, any reason I think she candidly implies in a law journal, to reduce his sentence:

Although the Guidelines were mandatory, I worked mightily to interpret them in as humane a way as I could. There was a little used category for “extraordinary physical condition” under the Guidelines that enabled a departure. To protect against reversal, I wrote a lengthy opinion about the category “extraordinary physical condition,” and how it applied to Damien. . . . Guideline-speak obliged me to write about “bullets in the brain,” Damien’s “extraordinary physical circumstances.” I wrote “Damien Perry has a bullet in his brain. The question is whether that is an extraordinary physical circumstance sufficient to warrant a downward departure. To ask the question, is to answer it.”[2]

I think her description in the law journal reflects a heavily results-oriented approach to sentencing. Her focus is on how to reduce Perry’s sentence much more than it is on the niceties of interpreting the sentencing guidelines. One reason I say this is that, even if the downward departure were correct as a matter of law, it’s no slam dunk. Hence, her judicial opinion seemed to speak hyperbolically when it stated, “To ask the question, is to answer it.”[3] Indeed, its hyperbolic nature is revealed by the fact that she follows it up with actual legal discussion. But it’s noteworthy that her position is much more open and direct in the law journal than in her judicial opinion.[4] She states quite frankly in the law journal that she would have liked to give Perry only probation, but she “knew that if [she] had departed from the Guidelines to that degree, the First Circuit would have reversed [her] in a nanosecond.”[5]

By no means am I here criticizing either Judge Gertner’s judicial opinion or her journal article. I make no claim that judicial opinions ought to reflect scholarly values of openness and transparency. Perhaps Gertner should be commended for her heroic handling of Damien Perry’s sentence. Quite possibly, judicial insincerity and overconfidence have positive effects. Perhaps they make laypeople think that they live in an orderly world, increase their satisfaction with the judiciary, and make litigating parties feel like justice was served. Or maybe they have none of those effects. My point is that there is probably quite a bit of judicial insincerity and overconfidence, and even if they have a place in the legal system, they are qualities at odds with good scholarship.

Scholars are supposed to make objective claims, voiced with appropriate caution. Whatever rhetorical benefits scholars hope to gain by treating “ought” assertions as “is” assertions are dramatically outweighed by the concomitant loss of clarity, transparency, and rigor. And relative to most judges, scholars have considerably more control over their time, tasks, and workloads. Judges must often opine on matters about which they lack deep expertise, while scholars should generally avoid doing so. Scholars should take the time to investigate factual, conceptual, and normative matters so that their scholarship can be open and transparent without feigning overconfidence or mushing together conceptually different claims for rhetorical effect. Legal scholarship should be held to a higher standard of clarity, transparency, and rigor than legal or judicial practice.

      [1].   Nancy Gertner, How to Talk About Sentencing Policy—and Not Disparity, 46 Loy. U. Chi. L.J. 313, 313 (2014).

      [2].   Id. at 323 (footnotes omitted).

      [3].   In the opinion itself, though, Judge Gertner wrote, “To ask the question is almost to answer it.” United States v. Lacy, 99 F. Supp. 2d 108, 118 (D. Mass. 2000) (emphasis added), aff’d sub nom. United States v. Dedrick, 16 F. App’x 10 (1st Cir. 2001).

      [4].   Id. at 114–19. Some facts are pitched slightly differently in the law journal than in the court opinion. In the journal, Judge Gertner states that Perry “and a friend were playing with a gun . . . [and it] accidently fired.” Gertner, supra note 93, at 321. In her legal opinion, by contrast, she writes that “a friend of his was playing with a shotgun and it accidentally discharged.” Lacy, 99 F. Supp. 2d at 114. The version in the legal opinion is more likely to create the impression that the friend was responsible for the accident while the version in the journal more readily allows for an interpretation in which Perry is partly culpable for his own injury.

      [5].   Gertner, supra note 93, at 323.

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.

The Importance of the Fact-Value Distinction: A Reply to Kleinfeld

In my prior post, I argued that scholars should better distinguish the descriptive and normative parts of their arguments. But what if there’s really no good distinction between the two? More broadly, what if there’s no such thing as moral normativity?

Joshua Kleinfeld takes such considerations to show that the fact-value distinction is not a sharp one. He bemoans “the rigidity with which contemporary academic legal culture invokes the fact-value distinction”[1] and believes it quite fine to offer arguments that blend the descriptive and the normative. It’s not the case, he argues, that “every well-formed claim in the world could be set straightforwardly on one side of the ledger or the other like so many zeroes and ones.”[2] Indeed, he finds it ironic that law professors insist on a fact-value distinction but then regularly fail to honor it:

Is the corrective justice view of tort law, which holds that the doctrinal structure of tort law reflects ideals of corrective justice, normative or descriptive? Well, both; it is a sort of idealizing interpretation. What about the economic view that regards tort law as an instrument for efficient resource allocation? Again, the view is at once normative and descriptive: it is an interpretation of the existing legal system with critical force to the extent the system diverges from it. What about a view of contract law as the legal effectuation of promise-keeping values? The interpenetration of normative and descriptive ideas in that view is impossible to unravel — either in principle (because the two categories are not truly separate) or in practice (because the two categories get so entwined in the course of argument) or both. When a lawyer argues that the Establishment Clause prohibits school-sponsored prayer in public schools, is that a descriptive claim about what the Constitution does mean or a normative one about what it should mean? What about when a lawyer argues that a contract’s reference to “reasonable efforts” means whatever efforts are standard in the industry rather than all cost-justified efforts? Entanglement is a normal feature of human understanding in general, but it is, if anything, particularly pronounced in law. Law is interpretive, and interpretive enterprises exhibit entanglement in extreme form.[3]

I have three responses. First, even if there are borderline claims that blur facts and values, they do not defeat the distinction altogether. Many statements appear to fall quite squarely on one side or the other. Many others, even if initially ambiguous, can be clarified or broken down into easily distinguished components. The person who reports seeing a parent hit a child “cruelly” can likely describe what she observed in factual terms (for example, the parent hit the child three times across the face) and separately describe her moral evaluation (for example, it grossly exceeded the bounds of appropriate parental discipline). Indeed, when confronted by sometimes vague distinctions, it becomes especially important to be clear and precise about their contours.

We face a similar challenge when distinguishing statements of fact not from morally normative statements but from prudentially normative statements. Surely one could make arguments similar to Kleinfeld’s: can we really draw a bright line between our observations of events and our own self-serving biases and best interests? Aren’t claims about how things are often entangled with views about how we would personally like them to be? As a matter of human psychology, we may indeed entangle beliefs about facts and beliefs about our best interests. Still, the standard scholarly response is to do what we can to loosen the entanglement or at least disclose matters that interfere with the clarity and objectivity of scholarly claims. In other words, entanglement risks are real; the solution is to disentangle all the more vigorously.

An examination of Kleinfeld’s legal examples reinforces my claims that legal scholars are too ambiguous. If a scholar states that “tort law in X jurisdiction follows principles of corrective justice,” we should expect the scholar to explain whether she is simply describing current doctrine, asserting what doctrine ought to do, or making both claims. There are some rather easy test questions to ask, for example: “If the jurisdiction made major statutory changes that explicitly make economic efficiency the goal of tort law, would you still claim that tort law in this jurisdiction follows principles of corrective justice?”

Kleinfeld also claims that it is “impossible to unravel” the descriptive and normative components of the view that contracts effectuate promise-keeping values.[4] In fact, we can simply ask scholars what they mean and they can usually explain. Or consider his rhetorical question, “What about when a lawyer argues that a contract’s reference to ‘reasonable efforts’ means whatever efforts are standard in the industry rather than all cost-justified efforts?” This is precisely the sort of question where the distinction between facts and values is easy to make: are we supposed to resolve what “reasonable efforts” are by observing what people actually do in some industry or are we supposed to include value considerations in determining what is cost justified? None of these issues seem impossible to unravel. Sure, there may be ambiguities at the margins. Indeed, we always have some uncertainty when interpreting what others mean. But the solution is to make our claims clearer, not to give up on precision.

Second, if it turns out that the fact-value distinction isn’t just a little vague but is fundamentally incoherent, then all of normative scholarship is in jeopardy. If people believe that there is no general distinction between descriptive and normative claims, then what do they mean when they tell us we ought to do something? There surely are deep and important questions about what this whole “morality” thing is and whether we can make sense of it. But once you’ve gone down the road of writing morally normative scholarship, you will generally be interpreted as accepting the existence of moral normativity. Put differently, if you are making morally normative claims while denying the fact-value distinction, tell us why your claims should be treated as anything more than glowing pixels or toner on paper that have no purchase on how we ought to behave. 

Third, while I’ve dipped a toe into the debate about the fact-value distinction, my overarching claim aims to be largely agnostic about substantive debates in law and philosophy. What matters is not so much whether there is a good distinction between descriptive and normative claims but rather how we are to understand the claims that scholars actually make. In our efforts to interpret scholarship, we must recognize that scholars sometimes intend to make factual assertions, sometimes intend to make value assertions, and sometimes simply write ambiguously because they aren’t carefully attending to the differences. We can, however, seek to clarify what scholars mean, even if we are all mistaken in believing that there is a fact-value distinction. If a scholar writes about unicorns, we can still query their beliefs about unicorns. Failing to do so would fail to understand their meaning.

Returning to the real world, when scholars say that the failure to obtain affirmative consent to sex constitutes rape, they may mean that a judge will find that to be the case or that a judge should find that to be the case. Even those who doubt the existence of moral normativity can still admit that scholars mean different things when they speak normatively as opposed to descriptively. If we aim to understand each other, we ought to bring such meanings to the surface no matter what we ultimately take to be true.

Kleinfeld and I agree on several points. We both believe there is a fact-value distinction and that it addresses something important,[5] though we likely disagree over just how fuzzy the distinction is. We also agree that scholars regularly mush together claims about facts and values. Kleinfeld believes that legal scholars rigidly insist on a fact-value distinction that they regularly refuse to honor, while I believe that legal scholars neither insist on the distinction nor honor it.

Our central difference, though, is about how scholars ought to behave in light of the imperfection of the fact-value distinction. Kleinfeld seems quite comfortable with the ambiguity, while I argue that even if there are tough cases along the fact-value continuum, scholars should be as clear as reasonably possible about their meaning. And I believe there can be real benefits when scholars make their claims more precise.

       [1].   Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life, 129 Harv. L. Rev. 1485, 1534 (2016).

       [2].   Id.

       [3].   Id. at 1535–36 (footnotes omitted).

       [4].   Id. at 1536.

       [5].   Id. at 1536 (footnote omitted) (“My point is not that the normative/descriptive distinction is altogether confused or meaningless (though some distinguished philosophers think it is). I actually think the distinction gets at something important and there are deep reasons why contemporary intellectual culture is fixated on it. My point is that the nature and scope of the distinction is much more disputed and complex than one would think from the way it is often treated in the legal academy.”).

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.

Legal Scholarmush

There is a vast conceptual difference between descriptive and normative claims about the law. Under a common view, descriptive claims about what the law is rely on legal sources such as cases, statutes, and regulations, and perhaps reasonable predictions about how judges and others will behave in the future. By contrast, normative claims about what we morally ought to do depend on more than just descriptive facts. They depend on values that cannot be deduced merely by empirical investigation. As a descriptive matter, a jurisdiction may criminalize insider trading, but that tells us little, if anything, about whether the conduct ought to be criminalized. Many laws have been morally atrocious, including statutes and decisions institutionalizing slavery, limiting women’s property rights, prohibiting interracial marriage, and so on.

Yet the difference between the descriptive and the normative is frequently blurred or ignored by legal scholars. One scholar might say that a judge “should” deem the defendant’s conduct insider trading, while another might say that a judge “should not.” Though their views appear oppositional, they may agree on substance if one refers to a legal “should” (meant as an expression of the positive state of the law) and the other to a moral “should” (meant to be independent of the positive state of the law). Conversely, scholars may express agreement but actually hold antithetical views. We are left not with productive scholarly exchange but with scholarmush—a tangled combination of claims rooted partly in law and partly in morality that are partly dependent on facts and partly dependent on values. It’s time to untangle the scholarmush.

To see why legal scholars should be explicit about the normativity of their claims, notice some of the many ways two scholars who mush together their views of law and morality might inadvertently talk past each other: (1) they might have a factual disagreement about sources of law (for example, there might be precedents that one scholar is considering but not the other); (2) they might agree about the relevant sources of law but disagree about how judges are likely to interpret them; and (3) they might agree about both the pertinent sources of law and how judges are likely to interpret them but disagree about the best way to proceed from an overall moral perspective (because they disagree about facts, values, or both).

Assume, for example, that a judge must give primary custody of a divorcing couple’s seven-year-old son to one of two parents who live several hours drive from each other. As a legal matter, the case turns on the “best interests” of the child, and we will assume those interests are in equipoise, given available evidence, with two possible exceptions. Professor A says that primary custody of the child “should” go to the father because the child has more friends who live near the father than the mother. Professor B says that primary custody “should” go to the mother because, even though there’s no evidence in the record to prove it in this particular case, she believes mothers are generally better nurturers than fathers, and this consideration dominates the issue of how many existing friendships a seven-year-old child has.

It seems like A and B disagree about what “should” happen. But consider several ways in which their disagreement might just be terminological: First, A may speak of legal normativity while B may speak of moral normativity. When A says custody should go to the father, she may be making a descriptive legal claim, “the law requires giving custody to the father,” conjoined with the view that legal actors “should” reach the correct legal result. She might immediately agree that the world would be a morally better place if the mother had custody and that, if she were the judge, law be damned, she’d give custody to the mother. But when she speaks of “should,” she is focusing on positive law, not her views of morality. Hence, A and B may agree on substance but merely speak of different kinds of normativity.

Alternatively, A and B might disagree about whether the law exhausts answers to moral questions in legal contexts. A might believe that, in the context of legal questions, judges morally ought to decide only in accordance with the law. For A, moral oughts in legal contexts are resolved entirely by considering legal oughts, while B believes that the law provides an important starting point but that it’s not the last word on what judges morally ought to do. B might believe that judges should sometimes opt for solutions that mesh poorly with the law when they lead to better overall results from a moral perspective. In order for A and B to resolve their conflict, they need to resolve a deep moral question. Arguing about child custody alone may never address their substantive disagreement.

Nevertheless, we might see several law review articles in which A and B argue over contract, tort, and criminal law where the issue that really divides them concerns a rather fundamental theoretical issue that they never actually discuss. Sometimes, domain-specific conflicts can help us understand broad theoretical debates, but sometimes they just divert us from more fundamental issues that must be addressed head on in order to make progress. Legal scholars often make their claims too unclear to know precisely where disputes ultimately lie.

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.

Concluding the Legal Discontinuities Online Symposium

With thanks to all participants and commentators (and Howard and the folks at Prawfsblawg), we can now bring our two-week Legal Discontinuities Online Symposium to a close. If you've been busy with grading or pandemic issues or just life in general, you can find all the posts right here.

As readers will have noticed, issues about lumping/splitting, smoothness/bumpiness, aggregating/disaggregating, and winner-take-all-or-nothing come up throughout the law. While different contexts raise different details, we gain a lot by looking for the heart of the issues across a wide-range of legal doctrines--an exploration the legal academy has barely begun considering its centrality to the law. I believe this symposium has advanced that exploration, and we do so even more in our collection of papers that will be published under generous open access terms (roughly in January) by the fantastic editors at Theoretical Inquiries in Law, affiliated with the Cegla Center for Interdisciplinary Research of the Law at the Buchmann Faculty of Law, Tel Aviv University. Thanks again!

Line Drawing in the Dark (by Adam Kolber)

Posted as part of the Legal Discontinuities Online Symposium:

Suppose one hundred women line up by height, and you must decide exactly where along the line the women are “tall.” Aside from the familiar (sorites) problem of distinguishing between women very close in height, there is also a problem of meaning. You might very well ask: How tall? Tall for what purpose? To reach the top shelf of some particular closet? To play professional basketball? Absent information about the purpose of the cutoff and what it signifies, it is difficult to draw a meaningful line. When we draw lines across spectra with little information to guide us, I call the creation of such cutoffs “line drawing in the dark.”

Turning to law, many jurisdictions follow the Model Penal Code in recognizing a spectrum of recklessness that can make an instance of homicide either manslaughter or murder. At trials where a defendant’s conduct could plausibly constitute either manslaughter or murder, it will usually be the jury’s job to draw the line between the two. For example, jurors will be asked to decide whether a driver murdered a pedestrian by driving “recklessly under circumstances manifesting extreme indifference to the value of human life” or whether the driving did not manifest such extreme indifference such that the defendant should be convicted at most of manslaughter.

Of course, the line between these two kinds of homicide isn’t carved by nature. Holding all else constant, the appropriate amount of punishment seems to increase smoothly as a defendant’s mental state becomes increasingly reckless (or, if you prefer, as evidence of that recklessness increases). For example, one might gradually increase punishment to reflect greater culpability or need for deterrence. To decide between manslaughter and murder, we must draw a line at some point and call certain reckless homicides “manslaughter” and others “murder.”

Many courts recognize that manslaughter and murder can exist along a spectrum of recklessness. Telling us to draw the line where recklessness represents “extreme indifference to the value of human life” reveals little about where along the spectrum the cutoff is located. Some conduct will be reckless in ways that manifest a little, a good bit, or even a lot of indifference to the value of human life before creeping right up to the line where extreme indifference is manifested. The language of “extreme indifference to the value of human life” adds little shared meaning, other than establishing that a spectrum exists.

According to one appellate court in Washington state, “extreme indifference” “need[s] no further definition.” (State v. Barstad, 93 Wash. App. 553, 567 (Ct. App. Wash, 1999).) According to the court, “the particular facts of each case are what illustrate its meaning,” and “[t]here is no need for further definition.” This view gets matters backwards. If jurors are supposed to apply facts to law, they need to know something about where the law draws lines. Jurors are not supposed to both evaluate facts and determine where the law should draw the line—particularly when they are given too little information to decide. 

If recklessness came in clearly defined units, the law could specify precise places along a spectrum (call them “flagpoles”) where legal consequences change. Absent flagpoles, however, it’s not clear how jurors are supposed to complete their task. Recall the challenge to determine where one-hundred women in height order switch from “non-tall” to “tall.” Some might group the tallest 10% into the “tall” category, while others might group the tallest 40%. There’s simply no meaningful way to draw a line along a spectrum without additional information. Are we using “tall” to mean “WNBA tall” or “taller than average” or “likely to make people say, ‘Gee, she’s tall.’”?

There will be easy cases of “tall” for just about any purpose, just as there will be easy cases of murder or manslaughter. But for a wide range of cases, especially those likely to proceed to trial, we are asking jurors to locate a cutoff without meaningful information about how to do so. This is the sense in which we ask jurors to engage in line drawing in the dark. It’s not just that the task we give jurors is difficult, as it often will be. The manslaughter-murder cutoff seems essentially impossible to get right in any principled way because we withhold information required to promote retribution, deterrence, prevention, or whatever one take the criminal law’s goals to be.

We could try to add meaning through sentencing information. At least if jurors knew the sentencing implications of their decisions, they could decide whether the conduct at issue warrants one or another sentencing range. Perhaps jurors could draw meaningful distinctions if we said, for example, that manslayers in this jurisdiction receive zero to ten-year sentences and murderers receive eleven-year to life sentences. They might assess whether the defendant’s culpability (or dangerousness or some combination of factors) warrants a sentence greater or less than ten years and then select a conviction accordingly. Yet this is precisely the sort of information we have but ordinarily hide from jurors.

Line drawing in the dark can also occur when courts rely on precedents from other jurisdictions. Suppose a judge in State A lacks a clear precedent as to whether the case at bar presents sufficient evidence to constitute an extremely reckless murder as opposed to just reckless manslaughter. The judge might turn to precedent in State B to help decide, implicitly assuming that words like “murder” and “manslaughter” have the same or similar meaning across jurisdictions. But while they are rooted in a shared common law tradition, the tremendous variation in sentencing practices across U.S. jurisdictions casts doubt on the view that every jurisdiction means the same thing by “murder” and “manslaughter” even when they use the same statutory language to describe them.

Assume murderers in State A receive sentences of 11 years to life while manslayers in State A receive sentences of less than 11 years. In State B, by contrast, the division between manslayers and murderers is at the 15-year mark. Murder and manslaughter seem to mean somewhat different things in State A and State B. We cannot accurately compare the two offenses, particularly in cases that fall near the border of murder and manslaughter, without considering sentencing consequences. Homicide warranting ten years’ incarceration happens to be called manslaughter in State A and murder in State B.

Cross-jurisdictional comparison cases will only rarely be both substantively analogous and have sufficiently similar sentencing schemes to offer meaningful comparisons. I gave examples where the sentences for offenses along a spectrum do not overlap and have a clear boundary between them. In reality, such sentences (including murder and manslaughter) will often overlap to varying degrees and require more complicated analysis. Moreover, even when sentences appear the same in name, the jurisdictions will likely have prison systems with different levels of severity and different collateral consequences upon release. Even if two jurisdictions used absolutely identical sentencing regimes, they could vary in their relative punitiveness, meaning that we cannot assume they draw the same lines between murder and manslaughter simply because they punish them with the same prison terms. Taken together, these and related concerns cast doubt on the possibility of ever meaningfully comparing criminal cases across jurisdictions. In my draft paper, I argue that line drawing in the dark occurs in many places throughout the law, afflicting judges, juries, lawyers, and scholars.

This post is adapted from a draft paper, Line Drawing in the Dark, to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Segall on Con Law "Where the Justices Just Make Up the Law"

In case you missed it a couple of months ago, Eric Segall concisely skewered Supreme Court constitutional law jurisprudence, offering "10 representative examples that show how judge-made constitutional law is little more than the aggregate of the Justices' value preferences or, on some occasions, the results of bargaining among the Justices to reach a five-vote result that makes little sense. I could provide 100 examples if space and the readers' patience allowed."

As I see it, lawyers must often pretend that the law makes sense and that decisions follow clearly and logically from precedent. Scholars, though, should be transparent about what follows from legal sources and what seems heavily influenced by policy or value judgments. Law professors should take on dual roles: teaching future lawyers how to effectively advocate inside a system that purports to be logical, rational, and built on existing legal sources while at the same time making clear how the games lawyers play do not necessarily reflect  unbiased mechanical application of the law. My own experience from law school about twenty years ago is that professors should have been more transparent about these two sides of the law, not just in constitutional law but in all law school classes. Perhaps that explains my own limited patience for judicial bullshit.

Inputs and Outputs vs. Rules and Standards

I don't love the name “Legal Discontinuities.” Discontinuities are perspectival. For example, in countries with progressive income taxes, as your income rises by just a dollar above some often arbitrary cutoff point, your marginal tax rate can go from, say, 20% to 30%. If we think about the relationship between income and marginal tax rate, it looks discontinuous. On the other hand, if you look at the relationship between income and total taxes owed, as you go a dollar above the threshold, you owe just a little more than you owed when you were just below the threshold.

The lesson I take is that legal input-output relationships are the central issue: how do we map things that law cares about—inputs such as reasonableness, culpability, and harm caused—onto legal outcomes that law cares about such as compensation owed, fine amounts, and years in prison? As I see it, we begin with a theory of the relationship particular inputs and outputs ought to have and compare the theoretical relationship to the one the law actually gives them. In the example above, what matters is the relationship between income and taxes owed not income and marginal tax rate. Subject to some important caveats, the input-output relationships we see in the law should match the input-output relationships our best theories recommend.

When a gradual change to an input causes a gradual change to an output, I call that a smooth relationship. By contrast, when a gradual change to an input sometimes has no effect on an output and sometimes has dramatic effects, I call that a bumpy relationship. There are, however, an infinite number of ways to map inputs and outputs, and these are just shorthand names for two common types of input-output mappings. (In his conference paper, for example, Mark Spottswood discusses a logistic relationship which is one kind of smooth relationship).

We must speak of inputs and outputs because the vocabulary of “legal discontinuities” is inadequate. People easily confuse the continuity of inputs and outputs with the relationship between them. For example, in tort law, when you just cross the threshold of being unreasonably incautious, you now owe full compensation for the harm you caused. That’s a bumpy relationship because a gradual change to your level of caution has a dramatic effect on the amount you owe. This is true even though compensation is paid in the form of money which would naturally be described as a continuous variable. “Money owed” seems scalar though it’s used here as part of a bumpy relationship. So that’s why I think it’s fine to speak of inputs and outputs as scalar or binary or continuous, but those terms don’t do justice to what we really care about, namely the underlying relationships between inputs and outputs.

The smooth-bumpy distinction is sometimes confused with the rule-standard distinction, though they are conceptually quite different. The rule-standard distinction archetypically applies to the triggering circumstances of a particular law (or regulation or the like). If the triggering circumstances are well-defined, easy to apply, require little discretion, and so on, then we deem the law to be “rule-like.” For example, a law prohibiting driving above 65 miles per hour is very rule-like because it is clearly defined, easy to apply, and requires little discretion. If, however, the triggering circumstances are difficult to define in advance, require judgment to apply, give the decisionmaker substantial discretion, and so on, then we deem the law “standard-like.” For example, a law prohibiting driving at an “unsafe” speed is very standard-like.

To see the difference between the rule-standard distinction (which applies to triggering circumstances) and the smooth-bumpy distinction (which applies to input-output relationships), consider some ways to set up a dependent child tax credit. We could make the circumstances triggering the credit standard-like: you receive the credit when you have a “big” family. Or, we could make the triggering circumstances rule-like: you receive the credit when you have “four or more dependent children.” The question of how to trigger a tax credit can easily be analyzed as a rule-standard debate.

Either way, however, there is a separate question about how inputs into our tax credit analysis relate to outputs. The result could have a somewhat smooth relationship to the input: if you’re deemed to have a “big” family, you receive a $1000 tax credit for each dependent child you have. Or the result could be more bumpy: “big” families receive a $4000 tax credit no matter how many members they have.

Now, one might insist, the rule-standard distinction could also be applied to the consequences of crossing a legal threshold. If you either get $1000 per child or $4000 total, those solutions seem rule-like because they are easy to apply and don’t require discretion. We could alternatively have standard-like consequences that provide for either a “fair” amount per child or a “fair” total credit. Those used to focusing on rules and standards might say that one triggering circumstance (that can be rule- or standard-like) is whether a tax credit applies or not and then another triggering circumstance (that can be rule- or standard-like) concerns the magnitude of the credit. Fair enough.

The key point, though, is that even though the rule-standard distinction can be applied to both triggering circumstances for applying a law and triggering circumstances for selecting a result, nothing about the rule-standard distinction captures the relationship between legal inputs and outputs. So we could have a child tax credit as follows: “big” families receive $4000 total in credit no matter the precise number of children in the family. Such an approach would be standard-like in deciding what constitutes a large enough family and rule-like in deciding the amount of the credit. More importantly, it would be an odd law from an input-output perspective. Why would we have a threshold determination as to the size of the family and not make the credit depend on family size? That question is about the relationship between an input and an output and goes beyond the focus of the rule-standard distinction. The rule-standard and smooth-bumpy distinctions simply capture different issues and considerations.

This post is adapted from my opening remarks at the Legal Discontinuities conference held at Tel Aviv University's Cegla Center for Interdisciplinary Research of the Law from Dec. 29-30, 2019. Conference contributions will appear in an open access symposium issue of Theoretical Inquiries in Law. 

Welcome to the "Legal Discontinuities" Online Symposium!

On December 29-30, 2019, the "Legal Discontinuities" conference was held at Tel Aviv University's Cegla Center for Interdisciplinary Research of the Law (here's the link to the program). We welcomed papers by Avlana Eisenberg, Lee Anne Fennell, Talia Fisher, Eric Kades, Leo Katz, Saul Levmore,  Julie Roin, Re'em Segev, Mark Spottswood, and me. I was pleased to co-host the conference with Talia Fisher. Over the next two weeks, we'll share blog posts from most of these contributors as well as some of the commentators, such as Ronen Avraham and Omer Pelled. 

What are legal discontinuities? Well, that's part of what the conference is about. They involve all sorts of ways in which small changes to legal inputs lead to dramatic changes to legal outputs. For example, Leo Katz has asked, "Why is the law so all-or-nothing?" and defended the view that the law is and must be so. By contrast, I have focused on the distinction between smooth and bumpy laws and argued that there are probably good opportunities to smooth the law and make it less all-or-nothing. It is truly a cross-disciplinary legal topic, as illustrated most vividly perhaps by Lee Anne Fennell's articles and recent book which address property law, environmental law, business law, and pretty much everything else. For my six-page opening remarks to the conference, click here.

When the topic of legal discontinuities has appeared on Prawfs in the past, Orin Kerr and others have asked how some of these issues differ from rule-standard issues. I tried to answer that in my opening remarks, and I'll post those thoughts later today. Then, we'll get started in earnest tomorrow morning with a blog post by Saul Levmore, former dean of the University of Chicago Law School, on probabilistic disclosures. All of the presenters' papers will be published in a forthcoming issue of Theoretical Inquiries in Law. The journal has kindly allowed us to present this online symposium (and eventually publish the final papers) under generous open access conditions. Many posts will link to their current iterations on SSRN or elsewhere. We look forward to participation from conference authors, their commentators, and Prawfsblawg viewers like you!

Tomorrow Morning: "Legal Discontinuities" Online Symposium

A quick heads up: we'll begin the Legal Discontinuities online symposium tomorrow. Stay tuned for more details in the morning!

Zoom's Press-to-Unmute Feature

One of the most useful Zoom tricks I've learned is that if you are muted at a computer with a keyboard, you can press and hold the space bar to unmute yourself.  When you release the space bar, you'll be muted again. This may be useful for classes and other big group settings where most participants stay muted except for relatively brief periods to ask or answer questions. The space bar shortcut feels much quicker and more spontaneous than moving a mouse to alter a "mute/unmute" icon.

Note that some people may need to enable the feature, and I'm not aware of a similar trick for tablets or phones. But here's a link to some other Zoom features people may find helpful.

Should We Deliberately Infect Vaccine Volunteers with the Coronavirus?

The novel coronavirus has not only sickened millions and killed hundreds of thousands, it has devastated the world economy and limited the freedom of billions. While some hope to have a vaccine in 18 months or sooner, it could take longer--much longer. One reason the search could take a long time is that late-stage vaccine studies usually include thousands of subjects, some of whom receive the target vaccine and some of whom receive a placebo. Then we wait and compare the susceptibility of both groups to the virus. It can take a long time, however, to get statistically meaningful results, especially if quarantine and social distancing measures prevent most people in both arms of the study from getting infected. 

One way to speed up the search for a vaccine is to deliberately infect young, healthy, adult volunteers (living in areas where the virus is already rampant) with the coronavirus as part of a "human challenge" vaccine trial (see, e.g., Eyal et al. and this letter from 35 members of Congress "potentially" supporting this approach.) We usually don't deliberately infect people with viruses that can cause diseases as serious as COVID-19, but these are not ordinary times. In a forthcoming essay in the Journal of Law and the Biosciences, I argue that human challenge vaccine trials for COVID-19 are not only morally permissible, they are morally obligatory, given reasonable empirical assumptions and a few additional caveats.

The journal has an accelerated publication schedule for its COVID-19 papers, so I will likely turn in the all-but-page-proofs version later in the day on Monday. It's a short piece, so if you have any corrections or feedback, I encourage you to email me soon or comment below!