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Trampling People While Whistling Rights: Normative Visions, Judicial Realities in Times of Terror

18 Apr

Everybody's Got to Do Their Part

Marbury v. Madison, Miranda, and Brown v. Board of Education are hallmarks of a judicial canon that preaches a heroic vision of Constitutional Law arbitrated in our highest tribunal. These cases tell a story of the judicial process that reflects a flattering normative vision of the American government. These are the cases that may be most likely to be emphasized when a middle or high school student is first introduced to judicial review. Running concurrently alongside this set of cases is an antinomian canon, constituted of cases such as Dred Scott, Plessy v. Ferguson, and Bush v. Gore, that tells a story of the court as a political institution, embedded in the culture of its time. A particularly notable subset of these decisions occur during wartime. In cases such as Korematsu, the Supreme Court upholds dramatic, discriminatory suspensions of civil liberties that are justified on the basis of necessity, created by a perceived existential threat. Then, inevitably, the existential threat disappears, the threat that the case generated begins to seem overblown and ridiculous, the decision is dismissed as an unfortunate mistake, there’s a general sense that we’ll ‘do better next time’, and then next time comes, and the whole cycle inevitably repeats itself.  Particularly notable, in cases such as Korematsu, is our general view of WWII – a heroic time for the ‘Greatest Generation’, and our relative shame about the Korematsu decision. This bifurcation is a more complicated stance than the universal scorn that we now hold for slavery, and a representative decision of that stance, such as Dred Scott. But is there more to these judicial opinions than mere hypocricy? Continue reading

Democracy as Ideological Engine

17 Apr

A recent worldwide study recently showed the dramatic effect of social situational factors on what we would generally view as dispositionist character traits. The study, entitled Markets, Religion, Community Size, and the Evolution of Fairness and Punishment, tested, through games, the fairness and punishment instincts in 15 diverse world populations. The authors found that market integration positively correlated with measures of fairness, while community size correlated positively with punishment instincts. The authors believe the study emphasizes that ‘prosociality is not solely the product of an innate psychology, but also reflects norms and institutions that have emerged over the course of human history.’ In large, market based societies, norms of fairness and punishment developed, evolutionarily, in order to help ensure the continued successful completion of mutually beneficial market transactions.

Get yer Ideologies here.

The institution of democracy strongly lurks in the background of John Jost’s paper on the elective affinities of political ideology. Jost, primarily through surveys of the populations of Western democracies, writes of how political ideologies are correlated, to a very high degree, with a person’s internal psychological traits. Jost emphasizes both top down processes, such as  ideological dissemination by elites, and bottom up processes, cognitive internal functions that lead an individual to adopt overall ideologies in accordance with their psychological needs. Jost  These two processes divide into a superstructure, a socially constructed public discourse, and a substructure, the functional and motivational attributes of individuals. Jost leaves relatively vague, in the paper, the methods of interaction between the superstructure and the substructure. I believe that lurking in Jost’s paper is the role of democracy in driving the process of elective affiliation which Jost describes. Continue reading

Writing as……

4 Apr

So, what do you think?

“I write entirely to find out what I think, what I’m looking at, what I see and what it means.” This particular quote is attributed to Joan Didion, but it is an incredibly common statement, usually uttered as a valediction of the writing process. (CF – Stephen King – I write to find out what I think.) These statements are, at least as uttered by writers, uncritical benedictions of the process of writing. But examined more closely, these statements seem to reveal a somewhat uncertain connection between an idea and its eventual home in words.  At what point does the process, especially its mechanical, instinctive elements, begin to exert unexpected control over the contents of the articulated thought. The need to persuade or advocate, implicit in any communication, seems likely to begin to shape the content of the point that writing advocates. In the context of novelists, the causal connections between the writer, the act of writing, and the end result, seem relatively unimportant. For the reader, the end result, the written text, is the only thing that matters. Furthermore, in the context of writers such as Didion & King, the reader has the freedom to either agree or disagree with the thought which they have articulated. However, the mandatory power upon human action produced by a written judicial opinion is far beyond the imagination of writers who don’t act with the power of the state behind them. Below the fold, I explore some of the complications that the act of writing by judges has on our traditional notions of the role of the judiciary. Continue reading

Dan Simon

29 Mar

Can it all be so simple?

It has become a relatively common aphorism, at least in certain circles, that ‘we are all realists now.’ (The we, in this case, are members of the legal community. The rest of society, living in reality, may be asking where have y’all been all this time?) Indeed, legal realist insights have empowered legal movements as diverse as Critical Legal Studies and Law & Economics. Legal realism has also helped empower greater honesty from judges about the nature of the judging process. A variety of judges, ranging from Richard Posner to Patricia Wald, have acknowledged the heavy role of hunch and instinct which first causes a judge to lean towards the eventual direction that their decision will take. However, a ‘hunch’ hardly seems to summon the ‘correctness’ that we expect from the law, nor match the ultimate solemnity of a judicial opinion. If a ‘hunch’ is the driving cause of the ultimate outcome of a judicial decision, which is then subsequently reified into a formal legal document, how much can we trust the final document? Furthermore, a ‘hunch’ hardly accords with the Talmudic process of asthmatic inducing research in dusty law books (or, thanks to technology, carpal tunnel from Westlaw searches) that is supposed to produce the legal certainty and ‘correctness’ that we demand, even as we know it’s a fool’s errand, from the judicial process. (See Roberts, John and his infamous strike zone.) Indeed, how do judges, themselves, manage to summon, in their opinions, the certainty, expressed in at least relatively formal legal reasoning which they undermine with their extra-judicial descriptions of the very same process. If only a legal academic could investigate these pressing issues! The legal academic who does follows after the jump.

Continue reading

He Who Smelt It Dealt It and other signs of early onset Dispositionism in the criminal justice system.

26 Feb

Be careful, he's judging you.

A recent, somewhat lighthearted article by Dahlia Lithwick in Slate explored the concept of ‘kid justice’. Lithwick, in proposing the compilation of a First Restatement of Kid Law, explored several instances in which children display an ability to formulate legal doctrines and standards that mimic adult formulations dealing with similar situations. For instance, “Kid Torts: He left his Transformer on the counter and it fell on my leg and now I can’t walk! Can I have his Transformer!?”. All veterans of the playground courtrooms of elementary school should be able to locate a vein of truth in Lithwick’s proposal. More seriously, Yale psychologist Paul Bloom has conducted a series of studies that demonstrate that a ‘moral sensibility’ begins at a remarkably young age. The experiments demonstrate that babies as young as nine months display a marked preference for characters who display helpfulness to others, and disfavor towards unhelpful characters. A further discussion of Bloom’s study, as well as some of it’s possible implications for criminal law, especially our normative justifications of punishment, follows below. Continue reading

Fractal Conflict Spirals & the Abortion Debate

25 Feb

The epitome of a conflict spiral?

Since the 2010 election, there have been a variety of bills proposed by Republicans, at both state & federal levels, that may result in restrictions on a woman’s right to an abortion. This post is not designed to evaluate the merits of these proposals, but rather how the response to these proposals, particularly a recent bill proposed in South Dakota that would classify actions taken in defense of a fetus as justifiable homicide, represent the conflict spirals discussed in the article ‘Bias Perception and the Spiral of Conflict’ by Kathleen Kennedy and Emily Pronin. A brief analysis of the tone and nature of the debate over this bill shows the eagerness with which sinister motives were attributed to the opposing sides in this debate. Also worthy of note was the role of the media, which emphasized negative interpretations and furthered controversy, perhaps because it was the best narrative. Continue reading

Jiujitsu Behavioral Economics: Incentivizing the Holy Grail of Efficient Breach through Liquidated Damages

24 Feb

Dear legal doctrine, Please untie me! Best, efficient breach.

It is undoubtedly a familiar scene from many 1L Contracts classrooms. The Professor introduces the concept of efficient breach; specifically the notion that contracts should be engineered, through the amount of damages awarded, to incentivize breach in the name of efficiency. The proposal provokes gasps of indignation from the class, who protest that breaking a contract ‘just feels wrong’. Ah, the professor will say, you must think we’re in a morality classroom, but we’re actually in law school. Through a variety of models, based on rational actors, the professor will demonstrate that damages which encourage efficient breach, generally expectation damages, will produce overall gains in societal wealth by encouraging contracting partners to breach their contracts when it will maximize overall wealth. (The larger question of whether wealth is a value worth pursuing through legal engineering will be carefully delineated as a separate question.) The professor may support his case with a quotation from the Restatement of Contracts, which empahsizes that breaking a contract is a morally neutral event. The professor may contrast expectation damages against the problematic concept of liquidated damages. Liquidated damages specify, in advance, the amount that a contracting partner must pay if they breach a contract. Liquidated damages clauses, especially those that seem punitive, are often not enforced by courts. A professor may demonstrate that liquidated damages clauses might deter efficient breach and therefore are economically unjustified. The students, standing in awe before the sacred models, are generally cowed into silence. They’ve learned an important lesson about attempting to apply their moral intuitions to economic analysis of legal doctrines. But is the professor actually right? Continue reading

Now presiding, Judge Robot. Do you object?

13 Feb

Sorry Sly, there's a new game in town.

A recent article in the Atlantic monthly discussed the continuing progress of the Turing Test. The Turing Test was a thought experiment proposed by famed computer pioneer Alan Turing. Turing thought that a test of computer’s intelligence would be if itcould fool a human evaluator into thinking the computer was a human participant during a five minute long conversation at least 30% of the time. (Turing’s original paper, including an extended discussion of why success at this game would qualify as intelligence, can be found here.) An ongoing contest in England awards the Loebner prize, every year, to the computer who best approximates a human. Although no computer has yet cracked the 30% mark, several have come surprisingly close. Another article, in the New York Times, chronicled the ongoing development of an IBM program, known as Watson, designed to play Jeopardy. A showdown with modern Jeopardy legend Ken Jennings is expected next week. Both of these articles show the continuing progress of artificial intelligence in both understanding and actively participating in human language activities. The advances obviously raise a series of profound questions, but my thoughts turned to their potential applicability in the legal realm. Could an artificial judging program, at some indeterminate point in the future, be created to resolve cases and other legal disputes? Would we want such a program? Would we feel comfortable with the decisions it reached? To me, the central question is – do we believe an approximation of a human mind, even a perfect approximation that calls on resources an actual mind can not access, still lacks something that is fundamentally needed to sit in judgment?A brief discussion of this somewhat silly thought experiment follows below. Continue reading


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