Category: Law and Humanities

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Clarifying Commodification

I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.

I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy.  It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.

At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.

(1) Coercion:

(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent.  It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern.  It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns.  Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted.   It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly.  While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.

(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market.  For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.

Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population.  It is only a partial solution because it usually results in shortages.  One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).

(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality.  Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.”  Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997).  More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way.  For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.

As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate.  For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.

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Hypotheticals, the Classroom, and Moral Biology

Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.

At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab.  In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh’s description in the video, again if anyone can find the paper he is discussing I will try and like to that].  The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.

As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.

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Prop 8, Gays, Homosexuals, and What is In a Name

Like many, I was glued to the blogosphere waiting for the decision in Perry v. Schwarzenegger yesterday, the Prop 8 decision. One seemingly superficial issue I have been interested in is how the court would refer to the class to which the plaintiffs belonged: as “gay” men and women or homosexuals?

I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point said to me: “Oh, and we have a really vibrant homosexual community.”

I was a little amused that he focused on this element of the city, though perhaps something I said had primed him, or this was just a testament to the perceived role of gays in the rise of the creative classes and a city’s hipness factor. What surprised me the most, though, was actually his language — his use of the term “homosexual” in a positive way. My own anecdotal experience is that people use the term “homosexual” when they want to ascribe negative connotations, and “gay” when they want a more neutral or positive ones. A quick (and very unscientific) google search of the terms “homosexual marriage” and “gay marriage” this morning seems to confirm this.

On this view it is unsurprising, then, that Judge Walker in the Perry opinion repeatedly refers to the plaintiffs and their group as “gays and lesbians”.  What is more surprising is that I expected I would find a split in usage between Justice Kennedy and Scalia’s majority and dissenting opinions in Lawrence v. Texas, with “homosexual” being dominant in the Scalia’s opinion.  Interestingly, both opinions use “homosexual.”

So here are a few questions I am thinking about: Was my initial instinct that which term to use reflects a political valence correct? Does it instead reflect something else? Geography (think of the student driving me)? Age? A change in time over which term is more acceptable, a little bit like the way the term “handicapped” has given way to “disabled” to “people with disabilities”?  Is the usage of “homosexual” by people who do not want to expand rights for the group a subtle attempt to bring the “sex” (in the intercourse sense) back into people’s minds?  Which word do you use in the classroom? Would Lesbian, Gay, and Bisexual students be offended by the term “homosexual,” and if so, is that a good reason not to use it?

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UCLA Law Review Vol. 57, Issue 5 (June 2010)

Volume 57, Issue 5 (June 2010)

Articles

Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes Nan D. Hunter 1129
Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality Kathryn Abrams 1135
The Sex Discount Kim Shayo Buchanan 1149
What Feminists Have to Lose in Same-Sex Marriage Litigation Mary Ann Case 1199
Lawyering for Marriage Equality Scott L. Cummings Douglas NeJaime 1235
Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive William N. Eskridge, Jr. 1333
Sticky Intuitions and the Future of Sexual Orientation Discrimination Suzanne B. Goldberg 1375
The Dissident Citizen Sonia K. Katyal 1415
Raping Like a State Teemu Ruskola 1477
The Gay Tipping Point Kenji Yoshino 1537

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Book Review: Richards’s Fundamentalism in American Religion and Law

David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010.

“Fundamentalist religious doctrines and autocratic and dictatorial rulers will reject the ideas of public reason and deliberative democracy.”

Mr. Richards takes the epigraph (in full, above) to his volume from a late essay by John Rawls, “The Idea of Public Reason Revisited,”  in which fundamentalist doctrines—whose comprehensive vision of the truth conflicts with the principles of deliberative democracy—are presented as a threat to a reasonable and just society.  Rawls was content to state his case, as the epigraph shows, in a measured tone.  One finds less restraint and greater risk in Richards, whose spirited challenge to religious and legal fundamentalism is noisy, passionate, and deeply personal.
As the courts have led the United States closer to civility, permitting women and gay men to participate in democracy as free and equal citizens, the reactionary forces of fundamentalism have struggled to keep the newly liberated in a state of “moral slavery” (e.g., 31) where women are considered weak-willed and best kept for child-rearing, and homosexuality a vice.  “Moral slavery” is the status quo ante bellum, a return to the hierarchical order that governed before the culture wars, before the civil rights movement and the progressive recognition of the right to intimate life.  Each fundamentalism is a project of restoration: originalism that reads the Constitution as though over Madison’s shoulder; New Natural law that draws moral principles from the vanguard of the 13th century; Protestant fundamentalism that insists on demonizing homosexuality based on a literal reading of scripture; the theology of Joseph Smith that promotes the sexual order of the (original) patriarchs.  These Edenic visions of a world that once was ordered as fundamentalists would have it ordered—these rejections of Rawls’ principle of public reason—are what Richards finds so dangerous, and against which he writes so movingly.

Even a sympathetic reader will have quibbles.  When, for instance, Richards writes in his critique of the unreasonableness of originalism that “[n]o approach to constitutional interpretation may be regarded as reasonable if its leading advocates never pursue its requirements consistently” (54), one wonders what he means by “leading advocates,” “never pursue,” “requirements,” and “consistently.”  So much has been written about originalism that one is inclined to believe it exists, but Richards’ slippery language does little to raise the phantom, and does far less to dispel it.  The same may be said for fundamentalism and for patriarchy, neither of which are well defined.  The word “originalism” is, in the volume under consideration, a circumlocution meant to call forth Scalia and Thomas, Bork and Berger without naming them individually.   Too much is made of the ideologues whose personalities are, after all, public projections of greater intellectual consistency than is to be found in the projectors, and too little is made of fundamentalism as a public event.  One may speak about John Finnis and Billy Sunday, but having done so what has been said?  Have the prejudices of the average fundamentalist, whoever or whatever that is, come into clearer focus?  Are the names of “leading advocates” the only clarity to be had?

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Book Review: A Giant of American Law (Reviewing Urofsky’s Louis D. Brandeis)

Louis D. Brandeis: A Life, by Melvin I. Urofsky.  Pantheon, Sept. 2009.  976 pp.

The politics and jurisprudence of Supreme Court justices have always been  spread broadly across the legal spectrum. Depending upon the descriptive phrase in vogue at the time, court members have been portrayed as conservatives, liberals, moderates, activists, strict constructionists, pragmatists, originalists and countless other terms that often attempt to oversimplify and label judicial beliefs. At any given moment in its history, the members of the Supreme Court have rarely found themselves in philosophical unanimity.

The nine justices currently serving on our highest court do share one common trait on their distinguished resumes. All came to the court from service on the federal courts of appeal. Indeed, to a man and woman, their judicial and federal experience far outweighs any legal background outside of the judiciary. While some of the current justices had private practice experience during their legal careers, it was their judicial background that was perhaps the most influential factor in their nomination and confirmation to the Supreme Court.

Depending upon one’s personal viewpoint regarding federal judicial experience as a sine qua non for selection to the Supreme Court, reading Melvin Urofsky’s Louis D. Brandeis: A Life, one cannot help but be struck by the undeniable fact that the political climate of the 21st Century means that a man like   Brandeis would have great difficulty being nominated and confirmed to any vacancy on the Supreme Court. Because Brandeis was an outstanding and passionate advocate for causes both popular and unpopular he had a lengthy legal record that would certainly give opponents of his nomination substantial ammunition to battle his occupying a seat on the Court.

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Book Review: Richards’s Fundamentalism in American Religion and Law

David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010, $90.00.

When you read the words “This is a provocative book” in a review, you know you’re in the presence of a mixed compliment.  On the one hand, the critic will praise the book for saying something new, interesting, and potentially valuable about an important topic.  On the other, it signals that the critic thinks there is something deeply flawed, wrong, or misguided about the book, and has reached for polite language to damn it with faint praise.

With that said, let me be clear: In Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, David A.J. Richards has written a provocative book.

Its ungainly title gives a fair indication of its thesis, but Richards’ book is not so easily reducible.  This is not your average jeremiad.  Richards is not content simply to condemn an approach to both religion and constitutional interpretation that he finds dangerous.  Instead, he wants to diagnose it: to put it on the psychologist’s couch and toy with its innards.  Richards offers a vision of constitutional and religious critique as DSM-IV.

Fundamentalism, both in religion and in American constitutional law and particularly originalism, are “rooted in a patriarchal psychology,” Richards writes.  By patriarchy, he means “a hierarchy – a rule of priests,” in which “only the father has authority in religion, politics, or law.”  Its roots are both historical and personal.  It represents a tradition stretching back to ancient Rome, and taking in most especially the life and influence of St. Augustine, in which patriarchy “arises [from] traumatic breaks in personal relationships (including of sons from mothers).”  This leads to a fundamentally repressive approach to both law and religion.  Its opposite is “democracy, in which authority accords everyone a free and equal voice, a voice that both breaks out of the gender binary and contests hierarchy.”  More in anger than in sorrow, Richards argues that religious and constitutional patriarchs are, not to put too fine a point on it, sick, while those who favor “democracy” are healthy, integrated individuals.  His primary positive example is Barack Obama, who “has seen more deeply into and resisted originalism than any other American politician,” and whose “moral voice” has elicited a profound “resonance in the American people.” Read More

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Book Review: Feigenson & Spiesel’s Law on Display

Neal Feigenson & Christina Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judgment (New York University Press, 2009) 252 pages.

Law has long been about words; today, increasingly it is about pictures as well.  This is the fence (or, if you prefer, the cliff) over which Neal Feigenson and Christia Spiesel want us to look, and the view is quite something.  Their warning, which could be taken as a leitmotif for the whole book, is that “pictures are different” — indeed, much more different, with an impact that is much more portentous, than might appear at first glance.

The authors begin by pointing out that “pictures in law” (their focus really is “pictures in court”) involves several critically different phenomena that need to be discussed in quite different terms.  The first, problematic but both obvious and increasingly common, is the use of videotape material as part of the package of evidence, whether these are surveillance videos, the dashboard cameras routinely  installed in police vehicles, or the product of the increasingly ubiquitous private cell phone.  The problem here is simply an extension of the age-old problem of eye-witness evidence, which is often taken far more literally and attributed much greater weight and reliability than it really deserves.  The most high-profile example so far — Scott v. Harris 127 Sup.Ct 1769 (2007), where the USSC attached an internet-accessible version of the videotape to its decision — splendid illustrates the problem, the USSC majority simply asserting that the video plainly spoke for itself.  But “speaking for itself” is precisely what videotapes cannot do, and the problems of framing, viewpoint and editing (if only with respect to start and end points) can never be overlooked.  The Court’s casualness, without even the excuse of being a crowded docket trial court, is not at all a promising start to an appropriate judicial response.

The second is the use of scientific evidence in picture form. The essential problem is that although videotape material is (or can be, or should be) largely an un-retouched representation of a physical reality, scientific evidence typically involves pictures that have been enhanced to focus on or emphasize relevant details.  Enhance them too little, and they tell judges and juries nothing; enhance them too much, and they become misleading or even dishonest, especially if the viewers underestimate the extent of the enhancement.  And all this, of course, operates in the shadow of the “CSI effect” and the high expectations of science-based examination that it inculcates, with a double risk: on the one hand, juries may punish litigants for failing to come up to the level of polished completeness that the TV show always delivers but real life often cannot; on the other hand, it may be too ready to take the science as more conclusive than it is, as a statement of simple facts rather than an informed assessment of probabilities.  A picture may be worth a thousand words, but scientific evidence in pictorial form needs to come surrounded by at least a thousand words if it is going to be assessed properly and used appropriately.

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Rationalizing Law

For quite a long time, extensive empirical work in psychology, sociology, and behavioral economics has been revealing that many of the law’s most cherished rules are faulty.  They are based upon mistaken assumptions about human behavior.  They are often flat out wrong.  And yet they persist.

The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception.  As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx).  Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in their book, Nudge (2008).

As these studies increasingly make their way into legal scholarship, they are proving that many existing legal rules don’t work as they should.  And this is more than a mere normative critique.  The rules just fail because people don’t act or think the way the law thinks they ought to.  In fact, what we’re learning about the way people act and think is often counterintuitive.  It is hard to grasp and hard to deal with.

This research should be undermining many legal rules at their very foundations.  Yet the legal rules don’t seem to be shaken despite their foundations being annihilated.

In many domains, when something is proven flat wrong, it is confronted and dealt with.  If evidence shows that bleeding the patient isn’t a good cure for disease, then we move on and stop doing it.  But in law, if the evidence shows that a rule doesn’t work, what’s the response?  Often, it is to just accept the evidence with a grin and continue on.  If science were like law, we’d be talking about how the earth is round yet continuing to behave as if it were flat.

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