Monthly Archive for July, 2004

Musings of a Victim

Published on July 21, 2004 in Jurisprudence. Closed

Last month, while I was driving home at night, a big pick-up truck rear-ended my car at a red light. I got out of my car, but before I could survey the damage, the driver of the pick-up gunned his engine and drove off. I was left standing in the middle of a dark intersection in a drizzling rain, feeling foolish and annoyed. My mood turned to amusement when I found that the pick-up truck’s license plate had fallen off and was lying in the roadway.

What I didn’t realize at the time was that I had joined a new class of people: I had become a victim of crime. Last week, my status became official when a letter arrived from the assistant district attorney’s office. The letter told me that the driver of the pick-up had been arraigned for Leaving the Scene of Property Damage and Driving With a Suspended License. Included also was a form “Victim Impact Statement” that solicited my input: What was the economic impact of the crime? What was the emotional and psychological impact of the crime? What were my recommendations for sentencing? I filled it out, asking that leniency be shown. After all, the whole accident was a bit of a joke.

But that letter and the Victim Impact Statement made me think. What if I had really been a victim? I imagined the worst case: My daughter raped and murdered. How would it feel to sit over that form, with it’s six ruled lines in which I am supposed to state the emotional impact of the crime. I imagine that my heart and mind would not be sufficient to contain everything from fantasies of murderous revenge to suicidal despair. How could it fit in any form? I cannot imagine having anything to say to the assistant district attorney that would fit in six lines, or even in “attached additional sheets.”

On the other hand, if the crime had been a burglary, I think I would have a thing to say about the harm done that wasn’t in the stolen stereo or silverware: the loss of a sense of safety, the sense of having one’s space violated. And I do believe that judges will read and consider such statements: anything that grounds the crime in reality and gives them more than cliches for their opinions.

Whether you want input from the the victim depends on your view of criminal law. If you regard punishment as an effort to right an imbalance between victim and perpetrator, an imbalance created by the crime, or if retribution is rendered more meaningful through inclusion of the victim, then sending out victim impact statements makes sense. If the crime acts on the (expected) expectations of society at large, it does not. The more you emphasize the norm over the actual and specific harm, the less the victim matters. The point of criminal law is first and foremost to prevent crime, and therefore the crime that has already been committed is obsolete (it cannot be prevented any more). Perhaps this doesn’t conceptually preclude consideration of the victim’s suffering, since the victim’s expectation that the criminal laws still count, that what happened was a crime, will be vindicated through punishment, along with the (expected) expectations of society.

Here is where I am still puzzled: Does punishment of the perpetrator make the victim whole? In the U.S. I have grown used to seeing pictures of the murdered victim’s family hugging each other and shedding tears of joy as the judge announces the death penalty. Of course, the punishment will not bring the dead back to life, the jail term for the burglar will not restore the lost sense of security. If punishment makes the victim whole, it does so only in a metaphysical way. A metaphysical and cultural way. Those victims’ families certainly wanted the punishment and thought it would repair the wrong done to them, at least to some extent. In Europe, and especially northern Europe, the victim’s delight in the criminal’s punishment is less socially acceptable, and rarely expressed.

So, society has its views on the proper behavior of victims. In some cultures victims suffer in silence and humility, perhaps even with an unspoken assumption that at least in some vague way there is a reason why they are victims. In other cultures being a victim is public, visceral and vociferous: you scream your suffering out, and society screams with you. In some places a cultural expectation exists that the victim wants the punishment of the perpetrator and that he or she is satisfied or made whole through the act of punishment. In other places the punishment does nothing for the victim, whereas the victim forgiving the criminal and not desiring his or her punishment, brings peace and healing to the victim. These differences, if they exist, are relevant for the legitimacy of criminal law as an instrument of social control. They affect the way criminal law works.

Perhaps I ought not be surprised by the cultural contingency of criminal law. There goes the universal and rational foundation of criminal justice in the enlightened state. But even apart from the loss of conceptual elegance, I’ll have to get used to the thought that the foundations of the criminal law may not be the same in the U.S. and Europe because what (society expects that) a victim feels and wants may be different here and there.

State Privacy Law Survives Pre-Emption Challenge

Published on July 13, 2004 in Law and Society. Closed

The district court for the Eastern District of California granted summary judgment for defendants in an important challenge to the California Financial Information Privacy Act, commonly known as “SB1″ (Senate Bill 1). The SB1 protections go far beyond those of the Gramm-Leach-Bliley Act, requiring opt-out provisions for information sharing among affiliates (for example, banks and their mortgage divisions) and opt-in consent for third party information sharing (for example, brokers and insurance companies). The plaintiffs argued that SB1, a state law, was pre-empted by the federal Fair Credit Reporting Act (FCRA), and that consequently SB1 violated the Supremacy Clause of the Constitution. Judge England disagreed:

It makes no sense to exempt such information sharing [of consumer reports among affiliates] in one part of the statute [the FCRA], then argue through a later preemption provision that the FCRA, though not governing such exchange, nonetheless prevents states from doing so. Instead, the only reasonable reading of the FCRA preemption provision is that it prevents states from enacting laws that prohibit or restrict the sharing of consumer reports among affiliates.

More about SB1, the FCRA, and federal preemption of state privacy laws on EPIC’s website. An excellent primer about privacy and surveillance, Bigger Monster, Weaker Chains, is available for download from the ACLU’s website.

Open Learning Initiative at Carnegie Mellon University

Published on July 10, 2004 in Law and Society. Closed
The Open Learning Initiative at Carnegie Mellon University offers free (as in beer), interactive tutorials for, among other things, economics, statistics, and causal reasoning. The economics module looks very promising. It emphasizes hands-on exercises (in a spreadsheet style format) over calculus. Definitely worth checking out.

The Virtue of Justice: Comment on Solum

Published on July 3, 2004 in Jurisprudence. Closed
In his excellent Legal Theory Blog, Lawrence Solum argues that (i) the Supreme Court has become increasingly dysfunctional; and (ii) that the reason for such dysfunctionality is a confluence of two factors: (a) close ideological division of the Court, giving undue weight to the justices at the margin (O’Connor and Kennedy); and (b) a prevailing spirit (at least at the margin) of results-oriented jurisprudence.

Solum equates dysfunctionality with a lack of predictability. Predictability of judicial decisions has a long and venerable history as one of the core values of a functioning judiciary. Arbitrariness, the rule of man, is what the application of general rules, the rule of law, was designed to overcome. (Or so the legal system explains that particular function to itself from an internal point of view. Of course, one could argue that, in some sense, the Court is not dysfunctional at all. A significant function of any court is to render decisions and to give finality to disputes, irrespective of the substantive outcome.) There are at least two mechanisms by which to increase the predictability of judicial decisions, one is factual, realist, and external in nature, the other normative, formalist, and internal. The “results-oriented, closely divided court” achieves (some degree of) predictability through a stable majority of justices being on the same team, ideologically speaking. That is the realist’s scenario of external predictability. The “divided formalist court” achieves (some degree of) predictability by strict adherence to internal, normative limitations imposed on the decision making process by text or precedent. That is the formalist’s scenario of internal control. Some would argue (and legal history would be on their side) that only the latter retains a connection to justice, as the former achieves predictability on an entirely extra-legal basis. Put differently, a realist’s court only manipulates the symbols of the legal code on a syntactical level, whereas the formalist’s court feels bound by the meaning of the code, that is, by the code’s semantics. Against that backdrop, Solum’s conclusion is, in fact, compelling. If the inframarginal voices on the Court are cancelled out, then the decision is made at the margin. That margin, O’Connor and Kennedy, places greater value to “making the right choice” (an amorphous realism) than to formalism. As a consequence, there are no meaningful internal restraints and there is no clearly identifiable external restraint (for example, in the form of a shared ideology). The result is arbitrariness.
Solum’s proposed solution is one of achieving formalistic ends, internal predictability, through realistic means, that is, by selecting judges that subscribe to a more legalistic and less (openly) political judicial philosophy:

When we select judges (especially Supreme Court justices), we should look first and foremost for good judicial character, and especially for the virtue of justice–the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges’ own perceptions of what the law should be. We should select Justices who are willing to compromise in order to produce stable majorities on particular issues. We should select Justices who will respect the Supreme Court’s decisions as precedent, even though they may have dissented from the decision. We should select Justices who care more about the rule of law and less about ruling through law. Swing Votes, Making Things Come Out Right, and the Virtue of Justice.

From my point of view, the real question is how we can approximate Solum’s (desirable) “good judicial character” outcome even if everyone involved in the process was hopelessly partisan, did not attribute any independent value to the rule of law, and was openly or secretly pushing a political agenda. The current system of appointing justices is not designed to mitigate such partisanship. However, what if:

(1) The tenure of each justice would be limited to a single term (for example, 10 years); and
(2) Justices would be appointed in batches of two, where each political party, through their representatives, gets to nominate one justice and the other party has a veto right as to the batch of two. Once a veto is exercised, both nominees are rendered ineligible for the present vacancies.

This simple procedural setup would make the appointment of politically committed (that is, inframarginal) justices less likely. Of course, there is no guarantee that politically more centrist nominees would turn to judicial formalism as a guiding principle subsequent to their appointment to the Court. However, once the political benefits from pushing partisan nominees are greatly diminished, Solum’s considerations of genuine judicial virtues would at least stand a greater chance of playing a more prominent role the selection process. Put simply, if you can’t have your own justice, chances are that you prefer a competent justice over a less competent one, whereby competence would (hopefully) be measured by the default internal standards of the legal system.

Realism and the Virtue of Justice(s)

Published on July 2, 2004 in Jurisprudence. Closed

In a post titled Swing Votes, Making Things Come Out Right, and the Virtue of Justice, Lawrence Solum on the Legal Theory Blog has posted a very interesting analysis of what he perceives to be two factors producing a crisis in the current Supreme Court:

First, we have a closely divided court, and the division is especially prominent on a variety of key constitutional issues, including unenumerated rights and federalism. Second, the behavior of the Justices seems consistent with the theory that the Justices vote to produce the “fair” or “best” outcome, feeling only loosely constrained by the rules laid down–e.g. their own precedents, the constitutional text, statutory language, and so forth. I would like to suggest (as a working hypothesis) and not as a firm conclusion) that the interaction of these two phenomena is much more problematic than either would be by itself.

After analysing this situation, Solum arrives at the assessment that “a results-oriented, closely-divided court poses grave dangers for the rule of law–dangers that are greater than those posed by a either results orientation or close division alone.”

Given this assessment, Solum finds formalism an appealing remedy, and his solution perhaps is not novel, but is nevertheless refreshing to read:

What I am suggesting is as simple as it is radical. When we select judges (especially Supreme Court justices), we should look first and foremost for good judicial character, and especially for the virtue of justice–the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges’ own perceptions of what the law should be. We should selected Justices who are willing to compromise in order to produce stable majorities on particular issues. We should selected Justices who will respect the Supreme Court’s decisions as precedent, even though they may have dissented from the decision. We should select Justices who care more about the rule of law and less about ruling through law.

Solum himself realizes that a call for the virtue of justice, judicial integrity and an apolitical selection process may come across as naive. But what I find fascinating is that Solum ends on a note of frustration, frustration not only with the dirty game of politics as it encroaches on the administration of justice through the legal system, but frustration with legal realism:

Some of you may think that human beings really are hard wired to be realists when given judicial power. … In my more pessimistic moments, I am inclined to think that the downward spiral of politicization must hit bottom and the rule of law almost utterly destroyed before political actors will come to see that the long-run costs of realist judging outweigh the short run political benefits. … The realization that the Supreme Court is becoming increasingly dysfunctional is growing. It is not, I think, utopian to believe that a consensus can be reached on the very great value of the rule of law. Legal realism is not written in the fabric of the universe; it is the product of human choices.

Realism has become the culprit. What is going wrong in the courts is the politicization of judicial decision making, what used to be called judicial activism: the infusion of political will into what should be the neutral, legal arbitration of disputes. Are realism and judicial activism connected? (Or is it simply that we call it judicial activism if liberal justices do it, and something else (such as realism) if conservative justices do it?)

If you consider that legal realism in this country started as a counter-movement against “mechanical jurisprudence” (a stylized opponent, not to say strawman), and if you further consider that the rhetorical exclusion of “real” issues from the decisions of the Lochner era in itself represented a political agenda of the courts, realism in its first and critical incarnation conceptually neither condemned nor condoned political or social agendas in judicial decision-making. What was to be condemned was that judges were hiding the ball, playing a three-shell game with legal doctrine, obscuring the social and political conflicts at work in the cases.

There is another, prescriptve strain to legal realism: Judges should ignore legal doctrine and take direct recourse to the social, economic, and political implication of the cases before them. If law (that is, legal doctrine) obscures the view of the real conflict, it should be discounted. And of course law always obscures the social, economic and politcal conflict. Such prescriptive realism sounds like a radical call for judicial activism. But judicial activism can operate effectively also under a mantle of legal doctrine, as the Lochner era shows. Can we assume that formalism, which may be an antidote to realism, will also be an antidote to judicial activism?

Still I find myself agreeing with Solum’s approach. By pitting the rule of law against realism, he suggests (a) that doctrine (meaning a certain degree formalism) is a necessary component of the rule of law, and that (b) the thing to be deplored about realism is its anti-doctrine, anti-law thrust (and not its power as a critical tool). What I would like to see is an integration of legal doctrine into a realist framework: a value of doctrine expressed in realist currency.

Law, Expectation, and Justice

Published on July 1, 2004 in Jurisprudence. Closed

Any system can be defined by a pair of terms, by its code: lawful/unlawful for the law, good/evil for morality, beautiful/ugly for aesthetics. Just/unjust may be the code for some normative system, but (as my esteemed colleague drhfk insists), not of the legal system. This view, an extreme form of the positivist separation thesis, is linked by drhfk to a view of normativity that describes “ought” as the respected and affirmed expectation of those to whom norms are addressed, the citizens. (More properly, law protects the expected expectations of citizens, as set out below.)

How does the conceptual isolation of the legal system (from codes of morality or justice) affect the (expected) expectations of citizens?

(Note that I distinguish morality and justice as separate normative systems.)

The X marks a normative relevant event, specifically a norm violation. Taken the example of theft, the event would be relevant to all three normative systems shown: Morality (stealing is evil), Justice (stealing in unjust), and Law (stealing is unlawful, and punishable). The arrows symbolize expectations. They run to and from the citizen because there is a normative feed-back between the citizen and the normative system. The citizen expects that property ought to be respected, and hence, that theft will be punished. Two hundred years ago, the citizen might have expected that marriage ought to be respected, and hence, that adultery will be punished. The Law no longer punishes adultery, and the (legal) expectations of the citizens have been altered as a result. In this manner, the normative system produces and shapes the expectations of the citizen.

But it is not only the Law that influences expectations. While perhaps systematically autonomous and separate, the codes of lawful/unlawful and just/unjust are closely related. If it is true that notions of Justice “may be imported by the legal system into the programs that guide the application of the binary values of the legal code” and that “once assimilated into the legal system, such considerations are no longer considerations of justice but rather attributes of legal (lawful/unlawful) communication,” it does not follow that normative expectations of citizens are equally affected.
Notions of Justice do affect the normative expectations of citizens, and specifically the normative legal expectations of citizens. The law itself takes such (strictly speaking erroneous) expectations into consideration in instances where mistaken legal assumptions will be respected. An example from German law is Section 15 Commercial Code (the expectation that liability for a business’ debts attach to the name of the business is protected). In the Common Law equitable remedies are used to protect the expectation of a just result where a legal result is unsatisfactory. In criminal law, it is the function of the jury’s verdict (also) to link the legal sanction to actual expectations of the citizens, whether these expectations flow from Law, Justice, or Morality.

It follows also that the law may do more than reinforce expected legal expectations. In punishing the thief, popluar sentiments of Justice (and Morality) will also be vindicated. I doubt, therefore, whether the Law may subjugate Justice effectively and permanently.

Law and Expectation: Reply to Bloomfield

Published on July 1, 2004 in Jurisprudence. Closed

My brief account of normativity is (supposed to be) naturalistic, in that it attempts to explain what norms are, not what they ought to be. Hence, I agree with Bloomfield that my model of normativity does not provide for

justice as a concept against which to measure law vs. non-law, good law vs. bad law.

Justice is not a legal concept. If it were, there would be no such things as unjust laws, and there sure is no shortage of those. The code of the legal system is not just/unjust but lawful/unlawful. Of course, external considerations of justice may be imported by the legal system into the programs that guide the application of the binary values of the legal code. However, once assimilated into the legal system, such considerations are no longer considerations of justice but rather attributes of legal (lawful/unlawful) communication.

That said, my esteemed colleague Bloomfield’s post touches upon the more fundamental issue of the nature of normativity. Ordinarily, normativity is explained in terms of certain (descriptive or non-descriptive) properties that are unique to normative claims. What I was getting at is the temporal aspect of normativity, that is, my ex ante commitment to choose defiance over learning when faced with the frustration of my expectations. Norms, unlike facts, discriminate among possible futures. Thereby, norms reduce the complexity of our decision making by providing us with at least one good reason (not) to choose future A over future B. Of course, legal norms are not the only norms. However, the legal system has the specific, and I would argue the sole, function of stabilizing normative expectations against cognitive frustrations. What makes the legal system unique as a sub-system of society is (i) its function (counterfactual stabilization of normative expectations); and (ii) its code (lawful/unlawful). Other normative sub-systems, for example morals, apply other codes (good/bad). Thus, I do not agree with Bloomfield’s assertion that law is an opiate for the masses. Rather, law is a means to reduce the complexity of social interaction, which in turn enables highly complex social behavior. If I had to consider the possibility of violence in every social interaction involving people who I don’t know (for example, a negotiation), I would be severely restricted in what I could cognitively afford to do. Cognitively I know that every human being currently alive and available for me to interact with is, as Neal Stephenson put it, is “a stupendous badass” descended from “a line of slightly less evolved stupendous badasses.” However, relying on that knowledge in my daily interactions would not get me very far, socially speaking. Thus, we have to (and do) act as if individuals (that is, empirical humans) were persons (that is, normatively construed actors). The “as if” is only visible from a scientific observer’s point of view. For us as participants (and that includes the observing scientist), people are persons. The legal system plays an indispensable part in securing my continued ability to rely on any individual’s personhood, even though I might cognitively suffer the occasional frustration.

Law and Expectation: An Opiate

Published on July 1, 2004 in Jurisprudence. Closed

My esteemed colleague drhfk was recently heard to say:

Rather, punishment is the symbolic affirmation that continuing reliance on a normative expectation (for example, that of property) is not foolish but is what society expects me to keep expecting.

The world is chaos. The future is unknown. Reality is unreliable, and our sanity is fragile. We cannot rely on how things are, and have to instead rely on how things ought to be. There is certainty in that, at least. And there is comfort in certainty.

Law therefore is the opiate for the people. The factual uncertainty of the future is hidden behind a Chinese wall of normative certainty. Since the unbridled force of reality will not leave our persons and property alone (cars get stolen), the state must at least preserve our expectations intact (my car ought not to have been stolen). Without normative certainty, who would bother working toward an uncertain future? What reward in productivity?

Two things follow. First, this view explains how law breaks down in times of war, catastrophe, or famine: The uncontrollability of reality drowns out the controllability of normativity.

Second, not only retribution (”punishment is not overly concerned with the perpetrator at all”) but also justice has been cancelled from the equation. The only justice conceptually possible is what appeals to the harried populace, whose ruffled expectations the law attempts to soothe. There is no justice as a concept against which to measure law vs. non-law, good law vs. bad law.