Indefensible
posted by Frank Pasquale
I’ve been doing some fun reading over the Spring Break, and so far my favorite book has been one by a new colleague–David Feige’s Indefensible: One Lawyer’s Journey Into the Inferno of American Justice. Ala “24,” Feige whisks you through a single day of his life as a public defender in the South Bronx. Most events in the day bring up some memory of past clients, who take on an almost palaple presence in the narrative despite being limned in a series of fast-paced sketches. The result is a verbal analogue to a series of Hogarths or Daumiers or Toulouse-Lautrecs, with “man’s inhumanity to man . . . writ large every tragic detail of otherwise invisible cases.”
I think any criminal law class could benefit from reading this book, or at least excerpts from it. My crim law class gave me no sense of the power differential between prosecutors and defenders that is a constant theme of Feige’s work. Things like “charging decisions,” summonses, and the total chaos of overscheduled courtrooms just never got discussed. Feige describes all this and much more with vehemence, vigor, and black humor. There’s also some great “theory” for those so inclined; consider this snippet on the epistemology of crim law:
The criminal justice system is grounded in the idea that truth is a slippery thing. In the vast majority of cases, there is no high-angle, omniscient camera recording the events precisely as they unfold. As a result, the attorneys, juries, and judges are left to cobble together, from questionable perceptions, shifting recollections, and forensic evidence, some vague facsimile of truth. [O]ur system is based on the procedural mechanism of proof rather than on some ontological notion of truth. . . .
Some humbling thoughts for lawyers there! Many thanks to Feige for getting me through a long plane flight with this highly entertaining and instructive book.
Photo Credit: 1840 Daumier image hosted by M. O’neill-Karch, in website for U. Toronto course Napoleon to Asterix.
March 8, 2007 at 3:43 pm
Posted in: Criminal Law
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Responses (6)
Patrick S. O'Donnell - March 9, 2007 at 9:18 am
Cf. what Larry Laudan has to say about the ‘epistemology of criminal law:’ ‘Legal epistemology…scarcely exists as a recognized area of inquiry. Despite the nearly universal acceptance of the premise that a criminal trial is a search for truth about a crime, considerable uncertainty and confusion reign about whether the multiple rules of proof, evidence, and legal procedure that encumber a trial enhance or thwart the discovery of the truth. Worse, there has been precious little systematic study into the question of whether existing rules could be changed to the enhance the likelihood that true verdicts would ensue.’ As Laudan also notes, legal epistemology is confronted with the fact that the legal system accords a strong role to nonepistemic values as well, and these often clash with explicit epistemic values. There does seem to be a need for a more deliberate and coherent legal epistemology in both a descriptive and normative sense, as advocated by Laudan. See his Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge, UK: CUP, 2006). Perhaps the same point is made (especially in regard to nonepistemic values), albeit in a more historical, colorful, and indirect manner, in Sadakat Kadri’s The Trial: A History, from Socrates to O.J. Simpson (New York: Random House, 2005).
gg - March 9, 2007 at 11:36 am
“My crim law class gave me no sense of the power differential between prosecutors and defenders that is a constant theme of Feige’s work. Things like “charging decisions,” summonses, and the total chaos of overscheduled courtrooms just never got discussed.”
Yet another example of how law school doesn’t really prepare students to practice law.
Daniel Goldberg - March 9, 2007 at 2:18 pm
I’m reminded of Larry Solum’s position that philosophy of language is crucial to illuminating discourse about constitutional semantics. Might the same be true for these questions about truth? I understand that truth is an extremely important issue for philosophers of language, and the difficulties of finding a natural language that is not subject to the Liar Paradox have occupied theorists since Tarski’s solution.
Patrick S. O'Donnell - March 9, 2007 at 4:52 pm
Daniel,
Provided I’ve understood you correctly, I suspect the questions of truth in legal epistemology are best handled with coherence and correspondence theories/approaches (recall that propositions of law are typically true when they cohere or fit with a particular legal system or corpus juris; but the role of evidence in criminal law suggests a corresondence theory has a part to play as well) and that semantics in this case is an ancillary issue with little dispositive power (it simply serves as an intelligibility constraint). Evidence is ordinarily regarded as conclusive when it eliminates all relevant defeaters, not when it eliminates all conceivable defeaters. And as Tarski was dealing with formal language(s), I doubt there’s any intrinsic problem with natural language in this case that interferes with ascertaining what is objectively true or false, recalling that certainty in these matters comes in degrees: for instance, perhaps the certainty we require is one that is beyond all ‘reasonable doubt’ (and not all logically possible doubts are reasonable), a different standard than would be applicable, say, in mathematics. We treat truth as a goal of inquiry, even if we are not certain of reaching it (hence we remain fallibilists).
Daniel Goldberg - March 9, 2007 at 6:20 pm
Hey Patrick,
Well, my understanding is that there are significant problems with both correspondence and coherentist theories of truth. Both are subject to the Liar Paradox, but correspondence theories have several additional thorny problems, among them that since they rely on a notion of reality, they are subject to skeptical arguments, and also that the notion of correspondence itself is highly problematic and difficult to make sense of.
Coherentism does not face the same skeptical problems, but it is problematic in part because coherentism seems ill-equipped to act as a criterion of truth (it seems eminently possible to have a coherent set of false propositions), as well as being undermined by the Liar Paradox.
Perhaps I was unclear about what I mean re Tarski: his solution to the Liar Paradox requires a closed, artificial language. It follows that the paradox remains a significant problem for making sense of truth conditions in any natural language. I’m not sure I understand how the natural languages we use in the criminal law game escape this problem.
For the record, I should confess that I am highly suspicious of the philosophical notion of objectivity in general, and am most sympathetic to some of the deflationary theories of truth, especially Paul Horwich’s formulations. I do not share the typical view that truth is a goal of inquiry, mostly because I do not think that the notion of ascertaining correspondence with reality makes much sense.
I also think “Kripkenstein”‘s argument is significant, and I like that he resolves the problem he sketches with an assertability condition of meaning, rather than a truth condition of meaning (thereby making the case that a deflationary conception of truth need not imply semantic nihilism).
JMO.
Patrick S. O'Donnell - March 9, 2007 at 7:28 pm
Daniel,
There are (significant) problems with any theory of truth, I suppose the question is whether or not we find them insuperable. With the Stoic philosopher Chrysippus, I do not think the Liar Paradox involves a formal fallacy of reasoning but a substantive untenability of an essential premise (the proposition at issue in this case being semantically meaningless: for a recent ‘resolution’ of this paradox, see Rescher’s Paradoxes: Their Roots, Range, and Resolution [Chicago, IL: Open Court, 2001], pp. 199-201).
I see how we part ways on many fundamental questions, and so I’ll reference those I take my bearings from (as you’ve kindly and clearly done above): on issues of truth, I’ve found the work of Michael P. Lynch indispensable and his arguments against deflationist theories persuasive (see: ‘A Functionalist Theory of Truth’ in his edited volume, The Nature of Truth: Classic and Contemporary Perspectives [Cambridge, MA: MIT Press, 2001], Truth in Context: An Essay on Pluralism and Objectivity [Cambridge, MA: MIT Press, 1998], and True to Life: Why Truth Matters [Cambridge, MA: MIT Press, 2004]). On ‘objectivity,’ I would recommend Nicholas Rescher’s Objectivity: The Obligations of Impersonal Reason (Notre Dame, IN: University of Notre Dame Press, 1997). On epistemological issues, I’ve been influenced by the work of Michael Williams (e.g., Problems of Knowledge: A Critical Introduction to Epistemology [New York: Oxford University Press, 2001], but especially by Nicholas Rescher, whose work vindicates the value of, at times, a coherentist approach to epistemic questions (see: Epistemology: An Introduction to the Theory of Knowledge [Albany, NY: SUNY Press, 2003] and Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective [Pittsburgh, PA: University of Pittsburgh Press, 2001].
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