Archive for September, 2006
posted by Daniel Solove
Kenneth Anderson asks: “Should a journalist or scholar check with a blogger before quoting a post . . . to see if that is what he or she would say in a considered way, either what he or she would say in a published article or what he or she would say to a journalist in an actual interview?”
Kenneth expresses some concerns with journalists quoting bloggers without contacting them: “[B]log postings generally tend to be much more strongly put than people – I include myself certainly – would say in an actual live or phone interview with a journalist. Presumably this is one reason why they can be an attractive source of material for journalists, besides the ease of searching them out rather than telephoning.”
I have had parts of my blog posts quoted in mainstream media articles before without having been contacted. Sometimes I think that it might be better for the reporter to at least call me and let me know what he or she plans to quote and allow me to elaborate or at least discuss the topic. But having been quoted many times by the media based on telephone interviews, I think I’d prefer my blog posts to be quoted. I’ve had a wide range of experiences being quoted based on interviews, and many a time my quote was more like a translation or approximation of what I said. Sometimes, I couldn’t even recognize the quote as having any relationship to anything I said. Reporters take great liberty with quotes. Sometimes this isn’t too bad, since the reporters might be able to edit my quote so I express my point in a more concise and punchy way. But other times, my quotes have appeared in an awkward way, with grammatical errors, as completely nonsensical, or even in a way that differs substantially from my actual position.
One of my favorite silly quotes attributed to me is: “Even though its anonymous, it’s still ominous.” Did I really say that? I can’t recall what article it appeared in, but it’s on a website that gathers quotable quotations from people. I have no idea why there’s a page for me on this website. I have no idea why it selected the particular quotes it did. The Internet sure is a mysterious place. Anyway, I certainly wouldn’t deliberately attempt to create a Johnny Cochran-like rhyme (“If it doesn’t fit, you must acquit”). Perhaps I said it, for many of my interviews with journalists last 15-30 minutes, which are then distilled down to just a phrase or snippet. The bottom line is that a quote from an interview is often not a very accurate reflection of what I actually said — and even if it is what I actually said, it often doesn’t reflect how I want my point to come across.
In contrast, every time I’ve been quoted in a blog post, at least the quote has been verbatim. Reporters don’t feel at liberty to edit the quote. And this is why it might be better to be quoted in a blog post. At the very least, these are my own words. Moreover, the fact that I might be quoted in a post helps remind me that every time I blog, I’m writing something accessible to the world. It can be easy to forget that when blogging, but I try to keep my “blogging censor” on full alert at all times (and I hope I succeed most of the time). Indeed, some of my best blogging achievements have been hitting the delete key.
There is one other benefit of being quoted in a blog post rather than a phone interview — I get a quote in a mainstream newspaper without having to do the interview. Up to 30 minutes of time saved. Something for nothing . . . and nothing’s wrong with that.
posted by Dan Filler
I just discovered a humorous quirk in the way that crime is reported. As I flipped through Drexel’s federally mandated disclosure of on-campus crime, I discovered that one category is “Attempted Robbery Strong Arm (hands, feet, etc.)” This led me to wonder whether Drexel is alone in conjuring images of a strong-arm, foot-point robbery. It appears, though, that this is standard terminology. Looking at a crime coding handbook for universities, I confirmed that Drexel had simply appropriated uniform crime reporting terminology.
I’m pleased that Drexel conforms to UCR taxonomies, but I remain flummoxed by the notion of strong arm robbery by foot. Do these thieves wear toe shoes?
It all reminds me a bit of “foot powder for the head.”
posted by Dan Filler
One of my first anxieties as a new professor was the concern that in my first scholarly venture, I’d make a mistake. I worried that I might take a position I later discovered to be indefensible or just plain wrong. This fear is acute for law profs who enter the academy with only a JD. Unlike folks who spend several years gaining deep subject-area knowledge (typically through a PhD program), and practice writing by preparing papers for class, those of us who teach with only a JD typically learn the art of scholarship publicly: in most cases, our first piece of serious research is published, open for all to see. That’s significant exposure for a person still in his or her formative stage of work.
So I was pleased to see Dan Kahan’s new paper on SSRN open with a semi-recantation of his decade-old article, What Do Alternative Sanctions Mean, from the University of Chicago Law Review. Of course Kahan nuances the matter (for example, he argues that he was wrong – but not for the reasons articulated by any of his critics). And by placing the claim up front, indeed as the article’s hook, his recantation appropriates the status of his first piece, reconfiripositioning this new article as a further nuanced analysis about shame sanctions. (Which is to say, he has displaced the potential shame of recantation with continued renewed ownership of the topic, albeit on slightly altered terms.)
But the relevant aspect of Kahan’s new paper is that it should remind junior scholars that errors, misjudgments, or simple changes of heart are OK. We all grow as people, and scholars, and if a decade of reflection sheds new perspectives on an issue, there’s no harm. Of course, we should all be so lucky to have our initial effort as widely read and discussed as Kahan’s. For most of us, early misstepss will be forgotten before the reprints even arrive. And our efforts to recant will be met with similar uninterest. But if that first amazing piece strikes gold – and turns out to be wronger than white clothes after Labor Day – just remember: you can always reconsider.
posted by Dave Hoffman
About this time of year, law students run for election to student leadership offices. I’ve seen some really strange, and sometimes funny, election materials, but this video takes the cake:
I’ll take nominations for most arresting/funny/bizarre student election campaign slogan in the comment thread.
posted by Dave Hoffman
The big news out of Philly recently is Mayor Street’s decision to begin enforcing the City’s smoking ban. But, as commentators have observed, the City isn’t putting real resources into enforcement: only two officers will be assigned to the smoking beat, and will not work after business hours. That’s City time, not Bar time. Given the miniscule probability of being caught, the $25 fine seems ludicrously low.
Nevertheless, the City is confident that the ban will have bite. Although anecdotes from Kentucky suggest otherwise, the City argues that:
“The majority of the people will comply,” [interim Health Commissioner Carmen Paris] said. “The majority of the people will put that cigarette away. Those that don’t, then the establishment owner is required to call us and file the complaint.”
Self-policing by bar owners and smokers themselves should be effective, said Joe Minott, the executive director of the Clean Air Council.
“People do it because it’s required by law,” he said. “I suspect that after a settling-in period there’s not going to be a lot of problems.”
The law and economics of the enforcement of regulatory offenses interests me. Traditional analysis would suggest that self-enforcement is unlikely (or discounts the role of social pressure). But I suspect that Philly is onto something. Because of the long, public, debate about the utility of smoking bans, most citizens know about the issue, and probably feel invested in the compromise that finally emerged from the City Council. Unlike, say, a normal low-enforcement regulation (e.g., an EPA rule, or the rule against home poker games), the smoking ban will be pushed along by significant social norms of compliance. Dirty looks, over-loud coughs, muttered comments, and (ultimately) illegal self-help will clear the air.
Theorists of deterrence might consider whether the success of low-enforcement/high-compliance rules provides a model to rescue low compliance rules where social-enforcement is possible (like anti-drug and anti-graffiti criminal codes, and plagarism in school). Maybe we need to sunset the existing criminal code every ten years, and force legislators to re-authorize the law through public debate. That debate, in turn, will increase public buy-in and lower deterrence costs. This analysis (not incidentally) explains the need to publish federal regulations, but also suggests that mere publication isn’t enough: real, political, debate is necessary to ensure that social sanctions help legal rules penetrate and affect their intended audiences.
posted by Nate Oman
One of the unhappy side effects of a legal education is that it destroys your ability to enjoy lawyer movies and attorney TV shows. After I acquired the vast expertise of a single semester of law school, my wife informed me that I had become absolutely insufferable as a partner for watching “Law & Order” because I kept saying things like “That isn’t really how it works…” And “Law & Order” is actually a pretty accurate lawyer show. (Of course, watching ER with my wife is a pain.) Well, it would seem that legal nitpicking of the portrayal of the law in fiction is not new. I recently found the following complaint written by Anthony Trollope in his novel Phineas Finn (1869):
The poor fictionist very frequently finds himself to have been wrong in his description of things in general, and is told so, roughly by the critics, and tenderly by the friends of his bosom. He is moved to tell of things of which he omits to learn the nature before he tells them – as should be done by a strictly honest fictionist. . . . And then those terrible meshes of the Law! How is a fictionist, in these excited days, to create the needed biting interest without legal difficulties; and how again is he to steer his little bark clear of so many rocks, — when the rocks and the shoals have been purposefully arranged to make the taking of a pilot on board necessary? As to those law meshes, a benevolent pilot will, indeed, now and again give a poor fictionist a helping hand, — not used, however, generally, with much discretion.
It would seem that litigation (notice that there are no TV shows – or Victorian novels – about transactional lawyers) has been “the biting interest” of fiction in “excited days” for some time, and the springes of the law (to use Holmes’ wonderful phrase) have been trapping unwary writers for many years.
Of course it could be worse. I once watched “24” with a friend of mine who works for the CIA. He would constantly be saying things like, “I can’t tell you guys any more, but this part is SO NOT realistic.” In his heart of hearts, however, I know that he wants to be Jack Bower. (He claims to be an accountant for the CIA, but my wife and I are convinced that he is actually a free-lance assassin on the “Company’s” payroll.)
Of course it goes without saying that no matter how often lawyers pick at “Law & Order’s” nits, they all want to be Jack McCoy.
posted by Daniel Solove
J.B. Ruhl recently came out with his hierarchy of legal scholarship, ranking types of articles from 0 to 10. His hierarchy has generated a ton of controversy (see here, here, and here). Here’s his ranking:
0 – Blog posts
1 – Publication of what are essentially blog posts with footnotes
2 – Doctrinal review of the state of the law
3 – Doctrinal study of interesting questions of law
4 – Doctrinal synthesis of developments in law
5 – Normative policy analysis of law
6 – Normative policy analysis of law with substantial reform proposals
7 – Legal theory
8 – “Law and” interdisciplinary studies
9 – Empirical study of legal institutions
10 – Empirical study of law’s impact on society
Now, in playful mockery of Ruhl’s hierarchy, Eric Muller has created another hierarchy of legal scholarship. A small taste:
2 – Work in my field that totally ought to cite my work but fails to do so
3 – First novels by professors at Yale Law School
4 – Student-written work by me
5 – Work that cites my work
Hat tip: Above the Law
posted by Kaimipono D. Wenger
Earlier this month, lawprofblogger Doug Berman
wrote a post for published an article in the National Law Journal. In it, he argues that blogs set lawyers and law professor free by allowing them to avoid overwrought legalisms in their writing. He argues (warning — block quote):
Many legal documents and most traditional law review articles can be ponderous, with assertions over-wrought, arguments over-made, principles over-cited and everything over-written. The blog medium fosters and rewards succinct expression. For legal writers and legal readers, it is liberating and refreshing to have thought-provoking ideas about the law expressed in only a few paragraphs or even a few sentences.
I will more fully address the substance of Professor Berman’s argument in the 172 painfully footnoted pages of my forthcoming law review article, Bargaining in the Shadow of the Blogosphere, 15 J. L. & Ponder’s Assert’ns. 101 (forthcoming 2008). For now, let me just throw out a few half-baked ideas on why Professor Berman’s argument, while interesting, may be overstated.
It is absolutely true that there are stuffy lawyers who write with too much legal-ese, and who could use a good editor. It is also absolutely true that there are many samples of bad legal writing which one could locate with a minimum of effort. (No, we won’t name any names. We’re simply going to take judicial notice of this one.)
posted by Dan Filler
In a recent post about mental illness and the death penalty, I attempted to raise the question of how some abortion opponents justify their support for executing people with mental illness. In particular, I wondered how such an inidividual would deal with some future research which allows us to predict whether a fetus will have an exceptionally high disposition to violence – and thus to murder. For the sake of this hypothetical, at least, imagine that this research actually tells us that a person with X genetic makeup will try to kill someone later in life. Could one oppose abortion of this fetus, while simultaneously approving execution of that person, in adulthood, when his overwhelming disposition ripens into an actual murder?
Rick Garnett offered comments which helped me recognize that my own language was imprecise. I asked whether such new research might logically provide a moral justification for “pre-emptive abortion” of a likely future killer. I now see that this sounds like I was making a utilitarian argument, which was not my intent. Rather, I meant to suggest a couple of things. First, we know that many people on death row have mental health issues – so many that one can now infer, and future research could conceivably establish, that many people on death row are there as a but-for result of their mental problems. Second, if one supports execution of individuals who would not be there but-for the mental problems, one essentially supports execution of people where free-will is not the sole, or even determinative, explanation for their acts. That is, one supports execution of individuals who are, in at least some sense of the word, innocents. Third, this argument suggests that the distinction between the “inncoent” fetus and the “guilty” murderer is far less clear cut. And it suggests that if the information we might need to know about a person to determine whether they will kill can be obtained pre-birth, any moral justification for execution at a later date might have at least some force at the earlier date as well. I am not claiming that one actually should abort for these reasons. I’m merely questioning how one can call the killing of the adult any more or less “retributive” than the abortion, if the factor that created culpability – say, a mental illness – existed both before birth and after. The only thing that changed was the actual fact of a killing, but a killing that was essentially beyond the offender’s free will.
The obvious retort to all of this is that the criminal law does not allow execution – or even conviction – of an individual whose crime is caused by a mental disease or defect. The problem is that the dominant test for insanity today, the M’Naughten rule, provides a defense only when a person is not aware of the nature and quality of his act (e.g., he thought he was cutting a melon, but it was really a head), or, if aware, did not know the act was wrong. Notably missing from this standard (but present in the old ALI version of the insanity defense, which became far less common after the assassination attempt on Ronald Reagan) is a defense for individuals who cannot control their acts. Yet if support for the death penalty among abortion opponents hinges, as I suspect it must, on the idea of free will – the notion that the offender has transcended his early innocence and now makes decisions independently, and thus fully culpably – must not that abortion opponent exclude from execution any person who cannot control his act?
posted by Daniel Solove
I’m pleased to announce that my book, The Digital Person: Technology and Privacy in the Information Age, is now out in paperback and has a much more affordable price. From the cover blurb:
Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. For each individual, these databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases—which Daniel J. Solove calls “digital dossiers”—has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.
The Digital Person sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.
Links to reviews of the book are at The Digital Person website.
September 25, 2006 at 5:29 pm Posted in: Articles and Books, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement) Print This Post No Comments
posted by Dave Hoffman
A few weeks ago, Judge Kaplan of the SDNY denied KPMG’s motion to dismiss the KPMG defendants’ complaint against it for indemnification of the defendants’ legal fees. (See coverage at TaxProf, and for background, my previous post.)
The opinion is really fascinating. Although I disagree with parts of Judge Kaplan’s analysis, I think it will ultimately come to be seen as a paradigmatic modern contract case, and classic casebook fodder.
I’ll assume your background with the underlying facts, and jump right back in where we left off. Why is the opinion worth casebooking?
posted by Dan Filler
Today I attended an ABA Roundtable session on children at risk. The discussion was led by Karen Mathis, president of the association. One of the most remarkable facts that surfaced during this conversation was that, each year, 3000 kids don’t start in the Philadelphia school system until age 8. Apparently only Pennsylvania, and one other state, begin compulsory education at such a late date. As one can imagine, many of these 8 year olds start first grade at a huge disadvantage compared to kids who entered school at age 3 or 4. While these aged youth may be lagging educationally, they’re physically out of place as well. Compared to the 5 and 6 year olds, the older children are sometimes massive. And that physical gap explodes around the time these children are in 6th grade (at age 14.) As a result of the behavioral difficulties that follow, many kids in this cohort drop out – at age 16 or 17- while they’re still in middle school.
I found this state of affairs both surprising and sad. With all the other challenges we have focusing kids on education, who knew that we were failing at this most fundamental level: the minimum age for compulsory education?
posted by Nate Oman
A few weeks ago, I blogged on my theory of the legal footnote fetish, arguing that it arose out of the reliance of American lawyers on American editions of English treatises where the most important material was in the footnotes. Today, while doing research on another project, I came across additional evidence in support of my theory. S.M. Phillipps’s Treatise on the Law of Evidence was published in England in 1815. (There had been earlier English editions.) A year later, John A. Dunlap published an American edition to the treatise. In his introduction, Dunlap discussed — of course — his footnotes:
The design of the editor was, principally, to collect the decisions of the different courts in the United States, connected with the subject of the following work, the undoubted merit of which justly entitles it to a preference to all former treatises on the law of evidence. The exuberance of the subject itself, and a solicitude to insert every thing which could be deemed useful, have swelled the notes greatly beyond what was originally expected and intended: and yet the learned reader will perceive tha they might have been made still more extensive; that much has beeen omitted by design, and much, no doubt, through inadvertence.
My claim is that law review editors inherited from this tradition of Americanizing English treatises the same “solicitude to insert every thing which could be deemed useful” no matter how much it might “swell the notes greatly beyond what was originally expected and intended”.
posted by Dave Hoffman
This paper, by Kim, Morse, and Zingales, looks interesting:
We study the location-specific component in research productivity of economics and finance faculty who have ever been affiliated with the top 25 universities in the last three decades. We find that there was a positive effect of being affiliated with an elite university in the 1970s; this effect weakened in the 1980s and disappeared in the 1990s. We decompose this university fixed effect and find that its decline is due to the reduced importance of physical access to productive research colleagues. We also find that salaries increased the most where the estimated externality dropped the most, consistent with the hypothesis that the de-localization of this externality makes it more difficult for universities to appropriate any rent. Our results shed some light on the potential effects of the internet revolution on knowledge-based industries.
Ribstein, Who owns universities?
Zittrain, Universities as Companies
posted by Rachel Godsil
In Yale Pocket Part, two new essays raise the question of whether women in legal academics should spend time blogging. Only one of the essays discusses this question explicity — Rosa Brooks in her candid and thoughtful What the Internet Age Means for Female Scholars? However, for women academics deciding whether to blog, I think the other essay, Brian Leiter, Why Blogs are Bad for Legal Scholarship may also be a must read.
In her essay, Brooks describes gendered challenges to academic success. The most salient is the time many women spend engaging in caretaking and housework — to the detriment of scholarship. The fact that women are often more pressed for time than men might suggest that valuable time should not be spent blogging. (Why am I not finishing the paper I am working on right now instead of musing about blogging!?)
However, Brooks also notes that not only must legal academics write great scholarship, they also have to ensure that their scholarship is read and noticed. Typically, conferences, colloquia, and visiting semesters are the best ways to promote scholarship. More women than men are also hampered here by family obligations or working spouses who are unwilling to uproot themselves for cross-country semesters or years. So, Brooks suggests, the internet provides a convenient way to advance own’s ideas and name. Though she observes that blog culture can be hostile to women and overly testosterone driven, Brooks seems cautiously optomistic that the internet and blogging might prove quite useful to women:
I can think of several younger scholars—including some women—whose careers have clearly been helped by blogging and commenting on blogs, activities that have gotten them noticed by people who then go on to read and be impressed by their more “serious” work. It’s too soon to say, but I suspect that the Internet age may gradually help eliminate the practice of making visits a predicate of lateral faculty offers. To the extent that blogging can help people get to know a scholar’s style of thinking, why put everyone to the trouble and expense of term- and year-long visits?
Enter Brian Leiter. Leiter appears hostile to blogs as means for those not already recognized as legal superstars to promote their ideas. He says so quite explicity:
[M]y sense is that blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.
Two mechanisms still exist for counteracting these developments. First, more first-rate scholars may enter the blogosphere, and use their pre-Internet gravitas to shift the terms of discussion. Second, the shift to peer-refereed publications in the legal academy—most of the best work in law and economics and law and philosophy, for example, now appears in faculty-edited journals—will ameliorate the significance of availability cascades on non-expert mediators like students and journalists.
It seems therefore, that Leiter (and any who agree with him) will give little credence to ideas posted in the blogosphere unless an already established legal superstar (those with pre-Internet gravitas) provides an introduction or some other sort of cover. Now, I presume Leiter would respond that he is not arguing that an idea or theory is mediocre simply because it is advanced by someone not already known by the heavy weights of the legal academy. However, the challenge for those not already in the club is to find vehicles for their work to be read. Once it is read, hopefully it will be judged on its merits. If Leiter’s view is widely shared, blogs will not prove useful alternatives to conferences or visits.
So –for women deciding whether to spend precious time blogging, the big question appears to be whether Leiter’s view will prevail.
posted by Dan Filler
A BBC Newshour report, this morning (autdio link) suggests that Indonesia’s decision to execute three Christians yesterday, for their role in a 1998 Christian-Muslim conflict, might have been strategic. For example, there are several Muslims on death row for the Bali bombing. And other Muslims are facing trial, and potentially the death penalty, for the same Sulewesian rioting that gave rise to yesterday’s executions. The commentators suggested that in order for the Muslim government to execute Muslims, it may have been strategically wise to execute the Christians first.
This may be a cynical use of death, but I wonder whether some states have run similar calculations. African-Americans are disparately represented on American death rows, vis a vis their percentage of the overall population. The race critique of capital punishment has had a fair degree of traction (compared, at least, to many other criticisms.) Do some jurisdictions attempt to protect their capital scheme from such attacks by executing whites at a faster rate than African-Americans, notwithstanding the overall demographic of death row? In Alabama, for example, from 1999-2005, across two gubernatorial administrations, 12 of 17 people executed were white. And from 2002-2005, all eleven people executed were white. This in a state where almost half of death row is populated by African-Americans. I recognize that each case proceeds at its own pace – to some degree – but I’m curious whether the goal of legitimizing capital punishment ever plays into the decisions of which individuals a state seeks to execute first. (And yes, I do think it’s worth noting that at this final stage, there might actually be an anti-white bias in imposition of the sanction, notwithstanding my suspicion that – at earlier stages – the bias seems to cut the opposite way.)
This is not an accusation. I don’t have any answers. I’m simply curious about the degree to which all decisions about the death penalty – from charging all the way to seeking a warrant – might be driven by the needs of external legitimacy, rather than by broader moral, or narrower individualized, concerns.
posted by Dan Filler
Over at What About Clients, Dan Hull wonders whether an overwhelming portion of large corporation legal work could be handled as well by small boutiques as by the mega firms that typically garner such business. Quoting Paul Clifford, a law firm consultant, he suggests that only 10% of these clients’ work qualifies as “bet-the-firm” material – matters that you cannot trust to anyone but the biggest and most sophisticated shop. The rest, he hopes, is up for grabs.
Dan poses the question in terms of quality: can small firms handle sophisticated corporate matters on par with the biggies. The answer is clearly yes. Excluding particular cases – not only bet-the-firm matters, but ones that require serious resources due to size or speed – I imagine that high quality mid-size and boutiques have the capacity to do much work that currently lands in large firms. The question, then, is why the big firms so often get this business. There are lots of reasons, but in many cases they start here: the in-house counsel.
What motivates the work distribution decisions of in-house counsel? They are supposed to maximize the quality of outcomes in cases. And they have to stick to a budget. When a case is really important, fidelity to both the company and their own personal buttocks requires bringing in a top-flight firm. In lesser cases, one might expect counsel to be more cost conscious – and thus more open to smaller firms. But two factors cut the other way. First, if the attorney came from a big firm – as so many in-house counsel do – he or she may have personal connections that bias the decision. These connections aren’t just friendly; in some cases an attorney is looking to maintain the option of returning to the private sector. In addition, in certain cases – particularly ones that he or she sees as losers – counsel may be motivated to send the case to a pricier shop simply so that he or she can say “we lost, but it wasn’t my fault. I sent it Cravath.”
So a small firm looking to lasso corporate business needs competitive pricing. But because the hiring process is driven not only by price and corporate risk, but also by personal concerns of in-house counsel, small firms will always have more difficulty piercing the corporate market. That may not be best for business, but it certainly conforms to human nature.
posted by Dan Filler
The ABA’s Florida death penalty assessment team, headed up by Chris Slobogin of the University of Florida, has released its report on the state’s capital scheme. Unlike the Alabama team, this group did not endorse a moratorium in the state. It did, however, raise a number of concerns including (among others): the large number of exonerations, inadequate compensation for conflict counsel, racial and geographic disparities, and the large number of people with mental disability on death row.
Although we did not address this at length in the Alabama report, my experience suggests that a shocking portion of people on death row have some mental illness. I suspect that many people would be troubled to learn the degree to which death rows warehouse people with mental disabilities. There has been relatively little empirical work on this question, though a recent study prepared by the U.S. Department of Justice, Bureau of Justice Statistics, showed that 55% of male inmates in state prisons, and 44% of men in federal pens, have mental health problems. I feel pretty confident that death row inmates ore no less than typical on this front, and probably disproportionately evidence mental health problems. It is possible that these problems are the product of imprisonment itself – SuperMax prisons, for example, are brutal – but there is certainly research suggesting that most folks on death row have a pre-existing history of either mental illness, mental retardation, or brain injuries.
There are a several issues involved in the execution of people with mental illness. First, there are the moral questions. Is it fair to execute a person who makes decisions under the influence of brain illness or damage? Can such acts, no matter how heinous, ever carry sufficient moral culpability support death? A separate issue, for those who oppose abortion on the grounds of a predictable disability and simultaneously support the death penalty, is whether one can later support execution of a person whose behavior results, at least in part, from a disability that would not have justified abortion. If a person maintains these two positions, is she essentially arguing that the offender is allowed to be born on the chance that the disability will not result in a killing? But what if future research shows that particular disabilities are high predictors of future violence. Would a “death sentence” for the fetus then be justified?
There are also separate issues of the sort previously raised by the Court. Can a mentally ill person really assist counsel? Does execution of mentally ill people serve the purposes of punishment
Then there is the human rights issue. Does allowing execution of mentally ill people undermine our credibility as human rights activists around the world?
Some people will argue that these judgments are properly left to juries as they weigh aggravating and mitigating factors. Perhaps. As long as we have capital punishment, someone will have to make these tough calls at some stage – and I don’t have any more faith in judges than twelve citizens. But the only way a jury can make a fair judgment is if the defendant’s counsel effectively investigates and presents relevant facts. Sadly, based on recent ABA reports (such as the one from Alabama), too many defense lawyers aren’t up to the task. And that makes it awfully hard for juries to do their job properly.
posted by Daniel Solove
I’ve just finished reading Judge Richard Posner’s new book, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 2006). The book is a slender volume, with a remarkable feat for a law professor — absolutely no footnotes or endnotes or citations of any sort save a short bibliography at the end.
Before I began reading Posner’s book, I was surprised that some reviewers, such as Dahlia Lithwick, praised the book as measured and balanced:
In his new book, “Not a Suicide Pact: The Constitution in a Time of National Emergency,” Posner approaches the wartime civil liberties problem in precisely the manner the Bush administration will not: with a dispassionate weighing of what is won against what is forsaken each time the government engages in data mining, indefinite detentions or the suppression of free speech.
I do not share Lithwick’s enthusiasm. Posner’s book struck me as a very broad defense of the Bush Administration’s policies (with a few exceptions) and as advocating a balancing between civil liberties and national security in which national security will nearly always win out. Posner is masterful in his rhetoric, though, and manages to sound judicious and measured even though the implications of what he is arguing often are rather extreme.
Posner begins by arguing for a “living Constitution,” which means that the Constitution should not be rigidly interpreted but should evolve with the times. In this respect, he agrees with Justice Brennan and other liberal jurists. Some reviewers, such as Michiko Kakutani of the New York Times attacked Posner’s living Constitution argument:
This willingness to bend the Constitution reflects Judge Posner’s archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.
One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting. . . .
I agree with Posner on the point about the living Constitution. Posner’s point is that like it or not, the Constitution is already a living Constitution: “So much of the constitutional text is vague or obsolete that a great deal of judicial patchwork is required for the Constitution to remain serviceable more than two centuries after it was written.” (p. 19). The problem with Posner’s arguments, however, is not in his embracing of pragmatism, balancing, and an evolving Constitution but in the way he goes about his balancing.
Posner argues for judicial restraint because “when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.” (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.
Posner argues that the threat of terrorism is very grave: “The research that I have been conducting for the past several years on catastrophic risks, international terrorism, and national security intelligence has persuaded me that we live in a time of grave and increasing danger, comparable to what the nation faced at the outset of World War II.” (p. 3). Really? As I’ve argued before, perhaps the dangers of terrorism are being weighed too heavily. Regardless of whether I’m wrong or right, Posner does little to question and analyze the dangers of terrorism, which he largely assumes.
Posner makes a straw man out of civil libertarians, who he claims “are reluctant to acknowledge that national emergencies in general, or the threat of modern terrorism in particular, justify any curtailment of the civil liberties that were accepted on the eve of the emergency.” (p. 41). Why not take on the more nuanced civil libertarians, who don’t have such an absolutist view? Most civil libertarians are not absolutists but are arguing that certain programs that curtail civil liberties do not provide sufficient benefits in addressing the risk of terrorism (which they don’t assess at such a grave level as Posner does) to justify the costs. They are just engaging in a different cost-benefit analysis, but Posner seems to paint anybody who doesn’t engage in his particular cost-benefit analysis as unpragmatic and absolutist.
posted by Dan Filler
Eric Muller, at Is That Legal, notes that there are now discussion boards dedicated to (non-law) faculty hiring rumors. This is one example and here is another. Eric suggests that this might be a new niche for blawgers. I’m not sure I’d like this job, but perhaps others feel differently. But why make this part of blogging? Lots of us have spent hours at the AALS conference gabbing about rumored moves. It’s time for our home institutions to recognize gossip as part of our “scholarship.” One obvious way to spin this straw into gold would be to create, and write about, an information market in law faculty moves. It’ll be fun, what with everyone contributing, and some of us earning nice profits. For some industrious academic entrepreneur – no doubt a junior prof stuck at Alaska State or the like – there may be tenure at the end of this rainbow. And better than even odds, a lateral move as well.